EXHIBIT 2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
AMERICAN CLASSIC VOYAGES CO., et ah, ) Case No. 01-10954 (JWV)
) Jointly Administered
Debtors. )
SECOND AMENDED JOINT PLAN OF LIQUIDATION OF
AMERICAN CLASSIC VOYAGES CO.. ET AL.
Francis A. Monaco (No. 2078)
Joseph J. Bodnar (No. 2512)
WALSH, MONZACK AND MONACO, P.A.
1201 Orange Street, Suite 400
Wilmington, DE 19801
(302) 656-8162
-and-
David S. Heller
Josef S. Athanas
LATHAM & WATKINS
Suite 5800 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
(312)876-7700
Attorneys for the Debtors and
Debtors-in-Possession
Dated: January 7, 2003
INTRODUCTION
American Classic Voyages Co., a Delaware corporation
("AMCV"), and those other subsidiaries and affiliates listed on Exhibit 1
hereto (together with AMCV, the "Debtors"), propose this Second Amended Joint
Plan of Liquidation of American Classic Voyages Co., et al. (the "Plan"). This
Plan seeks to resolve and satisfy all Claims against and Interests in the
Debtors. The Debtors are the proponents of this Plan within the meaning of
section 1129 of the Bankruptcy Code. All capitalized terms not defined in this
introduction have the meanings ascribed to them in Article 1 of this Plan.
Reference is made to the Disclosure Statement, distributed contemporaneously
herewith, for a discussion of the Debtors' history, businesses, resolution of
material disputes, significant asset sales, and a summary and analysis of the
Plan and certain related matters.
This is a liquidating Plan pursuant to which all of the
Debtors' assets are to be distributed to creditors in accordance with priorities
established by the Bankruptcy Code.
For purposes of this Plan, the Debtors are
categorized into several categories. The first category consists of the Debtors
that sold substantially all of their assets (including the Delta Queen,
Mississippi Queen and American Queen riverboats) for approximately $80.9 million
in cash and assumed liabilities listed on Exhibit 2 hereto (the "Selling
Debtors"). The second category consists of DQSB II, Inc., DQCV, L.L.C. f/k/a
Delta Queen Coastal Voyages, L.L.C., Cape Cod Light, L.L.C. and Cape May Light,
L.L.C., owners of the Cape Cod Light and the Cape May Light cruise ships, which
were turned over to their secured creditors (the "Coastal Debtors"). The third
category consists of the Debtors listed on Exhibit 3 hereto that owned the
Independence cruise ship, which was turned over to their secured creditors (the
"Independence Debtors"). The fourth category is Great Pacific NW Cruise Line,
L.L.C., owner of the Columbia Queen riverboat, which was turned over to its
secured creditor
2
(the "Columbia Queen Debtor"). The fifth category is AMCV, the ultimate parent
of all of the Debtors.
The Plan is premised on the substantive consolidation
into separate groups of (a) the Selling Debtors, (b) the Coastal Debtors and
(c) the Independence Debtors, respectively, in each case only with respect to
the treatment of Claims other than Administrative Claims, Priority Tax Claims
and Secured Claims, as provided below. The Plan does not contemplate substantive
consolidation with respect to the Classes of Administrative Claims, Priority Tax
Claims or Secured Claims against or Interests in the Debtors, which shall be
deemed to apply separately with respect to each Plan proposed by each Debtor
(provided, however, that, pursuant to the Settlement (defined below), the
Selling Debtors have agreed to pay all Administrative Claims and Priority Tax
Claims of all the Debtors). If the Plan is not accepted as to all of the Selling
Debtors, all of the Coastal Debtors or all of the Independence Debtors, or the
Plan is not accepted as to the Columbia Queen Debtor or AMCV, in the Debtors'
sole discretion, the Plan may be (a) revoked as to all of the Debtors, or (b)
revoked as to the Debtor or Debtors not satisfying the cramdown requirements
(such Debtor's or Debtors' Chapter 11 Case or Cases being converted to chapter 7
liquidations, continued or dismissed in the Debtors' sole discretion) and
confirmed as to the remaining Debtors. A list of each Debtor who is seeking to
confirm a Plan contained herein and its corresponding bankruptcy case number is
attached hereto as Exhibit 1.
Under section 1125(b) of the Bankruptcy Code, a vote to accept
or reject the Plan cannot be solicited from holders of claims and/or interests
until such time as the Disclosure Statement has been approved by the Bankruptcy
Court. The Debtors urge all holders of Claims and Interests entitled to vote on
the Plan to read the Plan and the Disclosure Statement in their entirety before
voting to accept or reject the Plan. To the extent the Disclosure Statement is
inconsistent with the Plan, the Plan will govern. No solicitation materials
other than the
3
Disclosure Statement and any schedules and exhibits attached thereto or
referenced therein, or otherwise enclosed with the Disclosure Statement served
by the Debtors on interested parties, have been authorized by the Debtors or the
Bankruptcy Court for use in soliciting acceptances or rejections of the Plan.
Subject to certain restrictions and requirements set forth in section 1127 of
the Bankruptcy Code, Fed. R. Bankr. P. 3019 and Article 15 of this Plan, the
Debtors expressly reserve the right to alter, amend, modify, revoke, or withdraw
this Plan prior to its substantial consummation.
ARTICLE 1
DEFINITIONS. INTERPRETATION AND RULES OF CONSTRUCTIONS
A. SCOPE OF DEFINITIONS. For the purposes of this Plan, except as expressly
provided or unless the context otherwise requires, all capitalized terms not
otherwise defined shall have the meanings ascribed to them in Article 1 of this
Plan. Any term used in this Plan that is not defined herein, but is defined in
the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed to
that term in the Bankruptcy Code or the Bankruptcy Rules. Whenever the context
requires, such terms shall include the plural as well as the singular number,
the masculine gender shall include the feminine, and the feminine gender shall
include the masculine.
B. DEFINITIONS. In addition to such other terms as are defined in other Sections
of the Plan, the following terms (which appear in the Plan as capitalized terms)
shall have the meanings ascribed to them in this Article 1 of the Plan.
1.1 ADMINISTRATIVE CLAIM: A Claim against any or all of the
Debtors constituting an actual, necessary cost or expense of preserving the
Debtors' Estates that is entitled to priority under sections 503(b) and
507(a)(l) of the Bankruptcy Code, including,
4
without limitation, compensation and reimbursement of expenses for legal and
other professional services rendered to or on behalf of the Debtors' Estates
awarded under section 330(a) or 331 of the Bankruptcy Code, other post-Petition
Date expenses incurred as arising in the ordinary course of business which have
accrued, and remain unpaid, as of the Effective Date, in accordance with
generally accepted accounting principles, consistently applied.
1.2 ADMINISTRATIVE CLAIMS BAR DATE: The first Business Day
that is at least sixty (60) days following the Effective Date.
1.3 ALLOWED [ ] CLAIM OR ALLOWED [ ] INTEREST: An Allowed
llowed Interest in the particular category or Class identified.
1.4 ALLOWED CLAIM OR ALLOWED INTEREST: A Claim against or
Interest in any or all of the Debtors or any portion thereof (a) that has been
allowed by a Final Order, or (b) as to which, on or by the Effective Date, (i)
no proof of Claim or Interest has been filed with the Bankruptcy Court and (ii)
the liquidated and noncontingent amount of which is Scheduled (other than a
Claim or Interest that is Scheduled at zero, in an unknown amount, or as
disputed) or (c) for which a proof of Claim or Interest in a liquidated amount
has been timely filed with the Bankruptcy Court pursuant to the Bankruptcy Code,
any Final Order of the Bankruptcy Court, or other applicable bankruptcy law, and
as to which either (i) no objection to its allowance has been or may be filed
within the periods of limitation fixed by the Plan, the Bankruptcy Code, or by
any order of the Bankruptcy Court or (ii) any objection to its allowance has
been settled or withdrawn, or has been denied by a Final Order, or (d) that is
expressly allowed in a liquidated amount in the Plan.
1.5 AMCV: American Classic Voyages Co., a Delaware
corporation, including in its capacity as debtor-in-possession pursuant to
sections 1107 and 1108 of the Bankruptcy Code.
5
1.6 AMCV SETTLEMENT CASH AMOUNT: The $710,000 Cash amount to
be paid to AMCV by the Selling Debtors upon the Effective Date pursuant to the
Settlement.
1.7 AMCV SETTLEMENT AVOIDANCE ACTION PERCENTAGE: The 17.5% of
Cash proceeds of Avoidance Actions (net of the costs of Avoidance Actions) to
which AMCV shall be entitled upon the Effective Date pursuant to the Settlement.
1.8 ASSETS: All legal or equitable interests of the Debtors
in any and all real or personal property of any nature, including any real
estate, buildings, structures, improvements, privileges, rights, easements,
leases, subleases, licenses, goods, materials, supplies, furniture, fixtures,
equipment, work in process, accounts, chattel paper, cash, deposit accounts,
reserves, deposits, contractual rights, intellectual property rights, Claims,
causes of action and any other general intangibles, and the proceeds, product,
offspring, rents or profits thereof.
1.9 ASSET SALE: The sale of substantially all of the Assets
of the Selling Debtors to DNPS, free and clear of liens, claims and encumbrances
and the other transactions consummated pursuant to the Asset Purchase Agreement,
dated as of May 13, 2002, by and among DNPS and the Selling Debtors, as such
Asset Purchase Agreement may have been modified from time to time.
1.10 ASSUMED MARAD NOTES: The Title XI Bonds in the current
principal amount of $36,198,000 maturing on June 2, 2020, with interest accruing
at 7.68% per annum and the Title XI Notes in the amount of $8,325,000 maturing
on August 24, 2005, with interest accruing at LIBOR plus 0.25%, each in favor of
MARAD and each assumed by DNPS and secured by the Assets of Great AQ Steamboat,
L.L.C. sold to DNPS pursuant to the Asset Sale.
1.11 AVAILABLE CASH: With respect to the Selling Debtors, all
Cash of the Selling Debtors' Estates to be distributed to holders of Allowed
Claims against the Selling Debtors less (i) the amount of Cash deposited into
the Operating Reserve, the Indemnification Reserve, and the Disputed Claims
Reserve for Disputed Claims against the Selling Debtors, and
6
(ii) the amount of Cash required to be held in escrow or separate from the
Debtors' Cash by order of the Bankruptcy Court or pursuant to the DNPS sale
documents. With respect to each other Debtor, all Cash of such Debtor's Estate
to be distributed to holders of Allowed Claims against such Debtor less the
Disputed Claims Reserve for Disputed Claims against such Debtor.
1.12 AVOIDANCE ACTIONS: All causes of action of, and remedies
granted to, any of the Debtors against any non-Debtor pursuant to sections 502,
506, 510, 541, 542, 543, 544, 545, 547, through 551 and/or 553 of the Bankruptcy
Code.
1.13 BANKRUPTCY CODE: Title 11 of the United States Code, as
in effect on the Petition Date and as thereafter amended, as applicable in the
Chapter 11 Cases.
1.14 BANKRUPTCY COURT: The United States Bankruptcy Court for
the District of Delaware, or if such Court ceases to exercise jurisdiction over
the Chapter 11 Cases, such court or adjunct thereof that exercises jurisdiction
over the Chapter 11 Cases in lieu of the United States Bankruptcy Court for the
District of Delaware.
1.15 BANKRUPTCY RULES: The Federal Rules of Bankruptcy
Procedure, the Local Rules of the Bankruptcy Court for the District of Delaware
and the guidelines and requirements of the Office of the United States Trustee,
as applicable from time to time in the Chapter 11 Cases.
1.16 BAR DATE: The deadline for filing and serving upon the
Debtors all proofs of claim established by the Bankruptcy Court was April 30,
2002, except for Customer Deposit Claims, for which the Bar Date is the first
Business Day that is at least thirty (30) days following the Effective Date.
1.17 BUSINESS DAY: Any day other than a Saturday, Sunday or a
"legal holiday" (as such term is defined in Bankruptcy Rule 9006(a)).
1.18 CASH: Legal tender accepted in the United States of
America for the payment of public and private debts, currently denominated in
United States Dollars.
7
1.19 CHAPTER 11 CASES: The Chapter 11 Cases of the Debtors
pending before the Bankruptcy Court as set forth in Exhibit 1 hereto and as
being jointly administered with one another under the above-captioned Case No.
01-10954 (JWV) and as to any Debtor individually, a Chapter 11 Case.
1.20 CLAIM: A right of a Creditor against the Debtors, or any
one of them, whether or not asserted or allowed, of the type described in
Bankruptcy Code section 101(5), as construed by Bankruptcy Code section 102(2).
1.21 CLASS: A group of Claims or Interests as classified in a
particular class under the Plan pursuant to Bankruptcy Code section 1122.
1.22 COASTAL DEBTOR(S): Individually DQSB II, Inc., DQCV,
L.L.C. f/k/a Delta Queen Coastal Voyages, L.L.C., Cape Cod Light, L.L.C. and
Cape May Light, L.L.C., and collectively all of them, including in their
capacity as debtors-in-possession pursuant to sections 1107 and 1108 of the
Bankruptcy Code.
1.23 COASTAL DEBTORS SETTLEMENT CASH AMOUNT: The $790,000 Cash
amount to be paid to the Coastal Debtors by the Selling Debtors upon the
Effective Date pursuant to the Settlement.
1.24 COASTAL DEBTORS SETTLEMENT AVOIDANCE ACTION PERCENTAGE:
The 3.5% of Cash proceeds of Avoidance Actions (net of the costs of Avoidance
Actions) to which the Coastal Debtors shall be entitled upon the Effective Date
pursuant to the Settlement.
1.25 COLUMBIA QUEEN DEBTOR: Great Pacific NW Cruise Line,
L.L.C., including in its capacity as debtor-in-possession pursuant to sections
1107 and 1108 of the Bankruptcy Code.
1.26 COLUMBIA QUEEN SETTLEMENT CASH AMOUNT: The $ 1,100,000
Cash amount to be paid to the Columbia Queen Debtor by the Selling Debtors upon
the Effective Date pursuant to the Settlement.
8
1.27 COLUMBIA QUEEN SETTLEMENT AVOIDANCE ACTION PERCENTAGE:
The 5% of Cash proceeds of Avoidance Actions (net of the costs of Avoidance
Actions) to which the Columbia Queen Debtor shall be entitled upon the Effective
Date pursuant to the Settlement.
1.28 CONFIRMATION: Entry of the Confirmation Order by the
Bankruptcy Court.
1.29 CONFIRMATION DATE: The date on which the Bankruptcy Court
enters the Confirmation Order on its docket.
1.30 CONFIRMATION HEARING: The duly-noticed hearing held by
the Bankruptcy Court to consider Confirmation of the Plan pursuant to Bankruptcy
Code section 1128, including any continuances thereof.
1.31 CONFIRMATION ORDER: The order of the Bankruptcy Court
confirming the Plan pursuant to Bankruptcy Code section 1129 in a form
acceptable to the Debtors.
1.32 CONVENIENCE CLAIMS: All Unsecured Claims against the
Selling Debtors only of $1,000 or less, and Unsecured Claims against the Selling
Debtors only that the holder of which elects to reduce to $1,000 on the ballot
provided for voting on the Plan within the time fixed by the Bankruptcy Court
for completing and returning such ballot, which Claims would otherwise be
classified in Class 6A, absent the existence of Class 5.
1.33 CREDITOR(S): Individually any Entity who holds a Claim
against any or all of the Debtors, and collectively all entities who hold Claims
against any of the Debtors.
1.34 CREDITORS' COMMITTEE: The Official Committee of Unsecured
Creditors appointed by the United States Trustee in the Chapter 11 Cases
pursuant to Bankruptcy Code section 1102(a)(l).
1.35 CUSTOMER DEPOSIT CLAIMS: Claims by consumer customers for
security deposits provided to the Debtors prior to the Petition Date that (a)
were not returned or reimbursed by the Debtors, a credit card provider, a travel
agent or any other Entity and (b) were for a cruise never provided by the
Debtors.
9
1.36 DEBTOR(S): Individually AMCV and each of its subsidiaries
and affiliates listed on Exhibit 1 hereto, and collectively AMCV and all of its
subsidiaries and affiliates listed on Exhibit 1 hereto, including and in their
capacity as debtors-in-possession pursuant to sections 1107 and 1108 of the
Bankruptcy Code.
1.37 DEBTOR RELEASEES: The Debtor Releasees shall include (i)
the officers, directors, members and/or enrollees, employees, representatives,
advisors, attorneys, financial advisors, investment bankers or agents of the
Debtors in each case as of the Petition Date or that have become officers and/or
directors thereafter, (ii) the Creditors' Committee and each of its members
solely with respect to each member's conduct in furtherance of its, his, or her
duties as a member of the Creditors' Committee, and not with respect to the
actions of such members as individual creditors, and its agents, attorneys and
other professionals acting in conjunction with the Chapter 11 Cases, and (iii)
the Plan Administrator, and their respective agents, attorneys and other
professionals acting in conjunction with Chapter 11 Cases.
1.38 DEFICIENCY CLAIMS: With respect to any Claim secured by a
valid Lien or security interest in any property of any Debtor having a value of
less than the amount of such Claim (after taking into account other Liens and
security interests of higher priority in such property), the portion of such
Claim equal to the difference between (a) the amount of the Claim and (b) the
allowed amount of the secured portion of such Claim (which allowed secured
amount may be set pursuant to this Plan). All Claims secured by a Lien or
security interest on the Assets of Great AQ Steamboat, L.L.C. junior in priority
to the Lien and security interest of MARAD shall constitute Deficiency Claims.
1.39 DISCLOSURE STATEMENT: That certain written disclosure
statement that relates to this Plan as filed in the Chapter 11 Cases by the
Debtors, including the schedules and exhibits attached thereto, as it may be
amended, modified or supplemented from time to time.
10
1.40 DISCLOSURE STATEMENT HEARING: The hearing held pursuant
to Bankruptcy Code section 1125(b) and Bankruptcy Rule 3017(a), including any
continuances thereof, at which the Bankruptcy Court considered the adequacy of
the Disclosure Statement.
1.41 DISPUTED CLAIM OR DISPUTED INTEREST: A Claim or Interest,
respectively, that the Debtors have Scheduled as "disputed," "contingent" or
"unliquidated," or as to which a proof of Claim or Interest has been Filed or
deemed Filed as contingent or as to which an objection has been or may be timely
Filed by the Debtors or any other party in interest entitled to do so, which
objection, if timely Filed, has not been withdrawn or has not been overruled or
denied by a Final Order.
1.42 DISPUTED CLAIMS RESERVE: Cash, in one or more separate
accounts, in the aggregate amount sufficient to pay each holder of a Disputed
Claim (i) the amount of Cash that such holder would have been entitled to
receive under this Plan if such Claim had been an Allowed Claim on the date of
the Effective Date Distribution, or (ii) such lesser Estimated Amount as the
Court may determine. The Disputed Claims Reserve shall only include amounts with
respect to a Disputed Claim for which and to the extent that amounts held in
escrow or separate from the Debtors' Cash by order of the Bankruptcy Court or
pursuant to the DNPS sale documents on account of such Disputed Claim fail to
satisfy the preceding criteria.
1.43 DISTRIBUTION RECORD DATE: The record date for the
purposes of making distributions under the Plan on account of Allowed Claims or
Interests, which date shall be the Confirmation Date or such other date
designated in the Confirmation Order.
1.44 DNPS: DNPS Delta Queen Steamboat Company, Inc., a
Delaware corporation, purchaser of substantially all of the Debtors' Assets
pursuant to the Asset Sale.
1.45 EFFECTIVE DATE: Except as provided in Article 12 hereof,
the later of: (a) the eleventh (11th) day following occurrence of the
Confirmation Date; and (b) the first
11
Business Day on which no stay of the Confirmation Order is in effect and all
conditions to the Effective Date set forth in Article 12 of the Plan have been
satisfied or, if waivable, waived.
1.46 EFFECTIVE DATE DISTRIBUTION: Shall be as defined in
Section 10.9 hereof.
1.47 ENTITY: A Person, an estate, a trust, the United States
Trustee, an official or unofficial committee of creditors or equity holders, a
"governmental unit" as that term is defined in Bankruptcy Code section 101(27),
or any other entity.
1.48 ESTATES: The estates created pursuant to Bankruptcy Code
section 541 by the commencement of the Chapter 11 Cases.
1.49 EXAMINER: The Person appointed by the United States
Trustee to determine whether the Settlement contained herein is fair to each of
the Debtors' Estates and all Creditors thereof.
1.50 FACE AMOUNT: Shall be as defined in Section 10.7 hereof.
1.51 FEE ORDER: The order of the Bankruptcy Court dated
November 13, 2001 authorizing the interim payment of Professional Claims.
1.52 FILE OR FILED: To file, or to have been filed, with the
Clerk of the Bankruptcy Court in the Chapter 11 Case.
1.53 FINAL DISTRIBUTION: Shall be as defined in Section 10.11
hereof.
1.54 FINAL DISTRIBUTION DATE: Shall be the date upon which the
Final Distribution is made. The Final Distribution Date shall be determined by
the Plan Administrator, in consultation with the Reconstituted Committee, and
shall be (i) after the liquidation into Cash of all Assets of the Debtors (other
than those Assets abandoned by Debtors) and collection of other sums due or
otherwise remitted or returned to the Debtors' Estates, and (ii) the date on or
after which the Debtors make a Final Distribution from the Disputed Claims
Reserve.
1.55 FINAL ORDER: An order or judgment of the Bankruptcy Court
or other court of competent jurisdiction, as entered on its docket, that has not
been reversed, stayed, modified
12
or amended, and as to which (a) the time to appeal, seek certiorari or move for
reconsideration has expired and no appeal, petition for certiorari or motion for
reconsideration, respectively, has been timely filed (which time period shall
mean, with respect to motions to correct such order under Rule 9024 of the
Bankruptcy Rules or otherwise, 10 days after the entry of such order), or (b)
any appeal, any petition for certiorari or any motion for reconsideration that
has been or may be filed has been resolved by the highest court (or any other
tribunal having appellate jurisdiction over the order or judgment) to which the
order or judgment was appealed or from which certiorari or reconsideration was
sought.
1.56 GENERAL SECURED CLAIMS: All Secured Claims against the
Debtors other than Secured Claims against Great AQ Steamboat, L.L.C.
1.57 GENERAL UNSECURED CLAIMS: All Unsecured Claims against
the Debtors other than Convenience Claims and Intercompany Claims.
1.58 IMPAIRED: When used with reference to a Claim or an
Interest, "Impaired" shall have the meaning ascribed to it in Bankruptcy Code
section 1124.
1.59 INDEMNIFICATION CLAIMS: The post-Petition Date
obligations of the Debtors pursuant to their bylaws, applicable law, any
employment agreement or other express agreement operational as of the Effective
Date to indemnify any of the Debtors' current and former officers and directors,
on the terms and subject to the limitations described therein.
1.60 INDEMNIFICATION RESERVE: Cash set aside by the Selling
Debtors on or before the Effective Date, in the amount of $2.5 million, in a
separate interest-bearing account, in an amount to cover Indemnification Claims
not otherwise released pursuant to the Plan and not covered by any applicable
directors and/or officers insurance and any related costs and expenses that may
be incurred by the Debtors (including, without limitation, the employer's share
of any employment taxes that may be payable with respect thereto), as such
reserve amount may be
13
increased or reduced by Bankruptcy Court order on notice to the Creditors'
Committee or Reconstituted Committee after the Confirmation Date.
1.61 INDENTURE TRUSTEE: HSBC Bank USA, or any successor
thereto as (1) successor Indenture Trustee for the 7% Convertible Junior
Subordinated Debentures (the "Notes") due 2015 as issued by American Classic
Voyages Co., (2) Property Trustee for the holders of AMCV Capital Trust I (the
"Trust") Convertible Preferred Securities (the "Securities"), and (3) Trust
Preferred Guarantee Trustee for the Trust Preferred Guarantee with respect to
the Securities.
1.62 INDEPENDENCE DEBTORS: Individually the Debtors listed on
Exhibit 3 hereto, and collectively all of the Debtors listed on Exhibit 3
hereto, including in their capacity as debtors-in-possession pursuant to
sections 1107 and 1108 of the Bankruptcy Code.
1.63 INDEPENDENCE DEBTORS SETTLEMENT CASH AMOUNT: The
$5,400,000 Cash amount to be paid to the Independence Debtors by the Selling
Debtors upon the Effective Date pursuant to the Settlement.
1.64 INDEPENDENCE DEBTORS SETTLEMENT AVOIDANCE ACTION
PERCENTAGE: The 24% of Cash proceeds of Avoidance Actions (net of the costs of
Avoidance Actions) to which the Independence Debtors shall be entitled upon the
Effective Date pursuant to the Settlement.
1.65 INTERCOMPANY CLAIMS: The Claims of any Debtor against any
other Debtor, including, without limitation, substantive consolidation claims
and claims for reimbursement or allocation of Administrative Claims or Priority
Tax Claims.
1.66 INTEREST: When used in the context of holding an equity
security of the Debtors (and not used to denote (i) the compensation paid for
the use of money for a specified time and usually denoted as a percentage rate
of interest on a principal sum of money or (ii) a security interest in
property), "Interest" shall mean an interest or share in, or warrant or right
14
asserted against, any of the Debtors of the type described in the definition of
"equity security" in Bankruptcy Code section 101(16).
1.67 LIEN: A charge against, interest in or other encumbrance
upon property to secure payment of a debt or performance of an obligation.
1.68 MARAD: The Maritime Administration of the United States
Department of Transportation.
1.69 MARAD AQ DEFICIENCY CLAIM: The Deficiency Claims of
MARAD, if any, against Great AQ Steamboat, L.L.C. and any and all guarantors of
the obligations of Great AQ Steamboat, L.L.C., which were withdrawn and released
by MARAD in the MARAD Stipulation.
1.70 MARAD NOTES: The Assumed MARAD Notes and the New MARAD
Note.
1.71 MARAD STIPULATION: The Stipulation and Agreed Order
Settling Motion for an Order Enforcing Allocation Stipulation and Valuing
American Queen and Related Assets dated July 23, 2002, pursuant to which the
Debtors, the Creditors' Committee and MARAD agreed, and the Bankruptcy Court
ordered, that $47,911,509.40 of the proceeds of the Asset Sale (in the form of
the MARAD Notes) were to be allocated to the Assets of Great AQ Steamboat,
L.L.C. and $33,588,490.60 of the proceeds of the Asset Sale were to be allocated
to the Assets sold by the other Selling Debtors. In exchange, the Debtors, MARAD
and the Creditors' Committee agreed that to the extent any holder of an Allowed
Other AQ Secured Claim has a valid, allowed claim secured by a valid and
perfected security interest or lien upon the American Queen vessel with priority
over the security interest and mortgage of MARAD, such prior secured claim shall
attach to the Cash proceeds of the Asset Sale and shall not attach to the MARAD
Notes or the proceeds thereof.
15
1.72 New MARAD NOTE: The Interest Payment Note in the
principal amount of $2,788,509 made by DNPS in favor of MARAD in connection with
the Asset Sale, with interest accruing at 2.3% per annum, secured by the Assets
of Great AQ Steamboat, L.L.C. sold to DNPS pursuant to the Asset Sale.
1.73 OPERATING RESERVE: Cash from the Selling Debtors' Estates
to be set aside on the Effective Date in an amount not to exceed $5 million,
which shall be available and used to pay (a) reasonable and necessary
post-Effective Date expenses incurred by the Debtors and the Plan Administrator
or for which the Debtors or the Plan Administrator are responsible under this
Plan, including but not limited to the post-Effective Date professional fees for
which payment is required pursuant to Section 7.9 of the Plan, (b) unpaid
Administrative Expenses and (c) any Claims arising under Bankruptcy Code section
503 (b) that are or become Allowed pursuant to a Final Order; provided, however,
that any funds remaining in the Operating Reserve after payment in full of all
items identified in (a), (b) and (c) above shall become available for
distribution on account of any other payments required or permitted to be made
under the Plan.
1.74 OTHER AQ SECURED CLAIMS: Secured Claims against Great AQ
Steamboat, L.L.C. senior in priority to the Allowed Secured Claim of MARAD
against Great AQ Steamboat, L.L.C.
1.75 OTHER DEFICIENCY CLAIMS: All Deficiency Claims against
any of the Debtors other than the MARAD AQ Deficiency Claim.
1.76 OTHER PRIORITY CLAIM: Any Claim, other than an
Administrative Claim or a Priority Tax Claim, of a Creditor to the extent such
Claim is entitled to priority pursuant to Bankruptcy Code section 507(a).
1.77 PERSON: An individual, a corporation, a limited liability
company, a partnership, an association, a joint stock company, a joint venture,
an unincorporated organization, or a governmental unit of the type described in
Bankruptcy Code section 101(41).
16
1.78 PETITION DATE: October 19, 2001 as to AMCV, and October
22, 2001 as to all other Debtors. 1.79 PLAN: This plan of liquidation and all
exhibits annexed hereto or referenced herein, which is hereby proposed by the
Debtors for the resolution of outstanding Claims and Interests in the Chapter 11
Cases of the Debtors, either in their present form or as they may be amended,
modified or supplemented from time to time in accordance with the provisions of
the Plan or the Bankruptcy Code.
1.80 PLAN ADMINISTRATOR: Any Entity appointed as Plan
Administrator pursuant to the Plan or following the Effective Date who is
acceptable to the Reconstituted Committee and whose function shall be to take
all other steps required, and when appropriate, take all steps authorized, under
the Plan, including, but not limited to, liquidating any remaining Assets,
resolving Disputed Claims and distributing property under the Plan.
1.81 POSSESSORY LIENHOLDER CLAIMS: All Claims held by Persons
to the extent such Claims are deemed to be secured, through a possessory Lien,
in property in which any Debtor's Estate has an interest but only to the extent
of the value of the possessory lienholders' interest in such Debtor's Estate's
interest in such property.
1.82 PRIORITY TAX CLAIM: Any Claim against any of the Debtors
entitled to priority pursuant to Bankruptcy Code section 507(a)(8).
1.83 PROFESSIONAL CLAIM: A Claim of a professional retained in
the Chapter 11 Cases pursuant to sections 327 and 1103 of the Bankruptcy Code or
otherwise, for compensation or reimbursement of costs and expenses relating to
services incurred after the Petition Date and prior to and including the
Effective Date.
1.84 PRO RATA: Proportionately so that the ratio of the amount
of consideration distributed on account of a particular Allowed Claim to the
amount of the Allowed Claim is the same as the ratio of the amount of
consideration distributed on account of all Allowed Claims of
17
the Class in which the particular Allowed Claim is included to the amount of
all Allowed Claims of that Class, but in any event the amount of consideration
distributed on account of an Allowed Claim shall not exceed 100% of the amount
of the Allowed Claim.
1.85 RECONSTITUTED COMMITTEE: The Creditors' Committee from
and after the Effective Date, as reconstituted pursuant to Section 7.3 hereof.
1.86 SCHEDULED: Set forth on the Schedules.
1.87 SCHEDULES: The Schedules of Assets and Liabilities Filed
by the Debtors in accordance with Bankruptcy Code section 521 and Bankruptcy
Rule 1007, as the same may be amended from time to time in accordance with
Bankruptcy Rule 1009 prior to the Effective Date.
1.88 SECURED CLAIM: Any Claim of a Creditor, including
principal, interest and any other amounts, secured by a lien on, security
interest in or charge against property of any of the Debtors' Estates or that is
subject to setoff under Bankruptcy Code section 553, to the extent of the value
of such Creditor's interest in that Debtor's Estate's interest in such property
or to the extent of the amount subject to setoff, as applicable, as determined
pursuant to Bankruptcy Code section 506(a) taking into account the priority of
Liens under applicable law.
1.89 SECURITY: Any instrument issued by, or interest in, the
Debtors of the type described in Bankruptcy Code section 101(49).
1.90 SELLING DEBTOR(S): Individually TDQS and each of its
subsidiaries and affiliates listed on Exhibit 2 hereto, and collectively TDQS
and all of its subsidiaries and affiliates listed on Exhibit 2 hereto, including
in their capacity as debtors-in-possession pursuant to sections 1107 and 1108 of
the Bankruptcy Code.
1.91 SETTLEMENT: The Settlement among the Debtors and between
the Debtors and non-Debtor Oceanic Ship Co. described in Article 8 of this Plan.
1.92 SUBSEQUENT DISTRIBUTION DATE: The date(s) for the making
of Supplemental Distributions in accordance with Section 10.10 hereof. The
Subsequent
18
Distribution Dates shall be set by the Plan Administrator after consultations
with the Reconstituted Committee.
1.93 SUPPLEMENTAL DISTRIBUTION: Shall be as defined
in Section 10.10 hereof.
1.94 TDQS: TDQS Co., a Delaware corporation, f/k/a
The Delta Queen Steamboat Co., including in its capacity as debtor-in-possession
pursuant to sections 1107 and 1108 of the Bankruptcy Code.
1.95 TAXES: All income, gaming, franchise, excise,
sales, use, employment, withholding, property, payroll or other taxes,
assessments, or governmental charges, together with any interest, penalties,
additions to tax, fines, and similar amounts relating thereto, imposed or
collected by any federal, state, local or foreign governmental authority on or
from any of the Debtors.
1.96 UNSECURED CLAIM: Any Claim against the Debtors,
excluding Administrative Claims, Priority Tax Claims, Other Priority Claims and
Secured Claims, including Other Deficiency Claims.
C. RULES OF INTERPRETATION.
1. The provisions of the Plan shall control over the
contents of the Disclosure Statement. The provisions of the Confirmation Order
shall control over the contents of the Plan.
2. For the purposes of the Plan:
(a) any reference in the Plan to a contract,
instrument, release or other agreement or document
being in a particular form or on particular terms and
conditions means that such document shall be
substantially in such form or substantially on such
terms and conditions; provided, however, that any
change to such form, terms or conditions that is
material to a party to such document shall not be
modified without such party's consent unless such
document expressly provides otherwise;
19
(b) any reference in the Plan to an existing
document, exhibit or schedule Filed or to be Filed
means such document, exhibit or schedule, as it may
have been or may be amended, modified or supplemented
as of the Effective Date;
(c) unless otherwise specified, all
references in the Plan to "Sections," "Articles,"
"Exhibits" and "Schedules" are references to
Sections, Articles, Exhibits and Schedules of or to
the Plan;
(d) the words "herein," "hereof," "hereto,"
"hereunder" and others of similar import refer to the
Plan in its entirety rather than to only a particular
portion of the Plan;
(e) captions and headings to Articles and
Sections are inserted for convenience of reference
only and are not intended to be part or to affect
interpretations of the Plan; and
(f) the rules of construction set forth in
Bankruptcy Code section 102 shall apply, except to
the extent inconsistent with the provisions of this
Article of the Plan.
(g) the word "including" means "including
without limitation."
3. Whenever a distribution of property is required to
be made on a particular date, the distribution shall be made on such date or as
soon as reasonably practicable thereafter.
4. All Exhibits to the Plan are incorporated into the
Plan and shall be deemed to be included in the Plan, regardless of when they are
filed.
5. Subject to the provisions of any contract,
certificate, bylaws, instrument, release or other agreement or document entered
into in connection with the Plan, the rights and obligations arising under the
Plan shall be governed by, and construed and enforced in accordance with,
federal law, including the Bankruptcy Code and Bankruptcy Rules.
20
D. COMPUTATION OF TIME. In computing any period of time prescribed or allowed by
the Plan, unless otherwise expressly provided, the provisions of Bankruptcy Rule
9006(a) shall apply.
ARTICLE 2
TREATMENT OF UNCLASSIFIED. UNIMPAIRED CLAIMS
2.1 ADMINISTRATIVE CLAIMS. Subject to the allowance procedures
and deadlines provided herein, on the Effective Date or as soon thereafter as is
practicable, the holder of an Allowed Administrative Claim shall receive on
account of such Allowed Administrative Claim and in full satisfaction,
settlement, release and discharge of and in exchange for such Allowed
Administrative Claim, (a) Cash equal to the unpaid portion of such Allowed
Administrative Claim, or (b) such other treatment as to which the Debtors and
the holder of such Allowed Administrative Claim have agreed upon in writing,
provided, however, that Allowed Administrative Claims with respect to
liabilities incurred by the Debtors in the ordinary course of business during
the Chapter 11 Cases shall be paid in the ordinary course of business in
accordance with the terms and conditions of any agreement or course of dealing
relating thereto and Professional Claims shall be paid in accordance with
Section 2.3.
2.2 STATUTORY FEES. On or before the Effective Date, all fees
due and payable pursuant to 28 U.S.C. ss. 1930, as determined by the Bankruptcy
Court at the Confirmation Hearing or agreed to between the Debtors and the
Office of the United States Trustee, shall be paid in full, in Cash.
2.3 PROFESSIONAL CLAIMS.
A. On or prior to the Administrative Claims Bar Date,
each Professional shall File with the Bankruptcy Court its final fee application
seeking final approval of all fees and expenses from the Petition Date through
the Effective Date.
21
B. Upon the Effective Date, any requirement that
Professionals comply with sections 327 through 331 of the Bankruptcy Code in
seeking retention or compensation for services rendered after such date will
terminate.
2.4 PRIORITY TAX CLAIMS. With respect to each Allowed Priority
Tax Claim, at the sole option of the relevant Debtor, the holder of an Allowed
Priority Tax Claim shall be entitled to receive on account of such Allowed
Priority Tax Claim, in full satisfaction, settlement, release and discharge of
and in exchange for such Allowed Priority Tax Claim, (a) in accordance with
Bankruptcy Code section 1129(a)(9)(C), equal Cash payments made on the last
Business Day of every three-month period following the Effective Date, over a
period not exceeding six years after the assessment of the tax on which such
Claim is based, totaling the principal amount of such Claim plus simple interest
on any outstanding balance, compounded annually from the Effective Date,
calculated at the interest rate available on ninety (90) day United States
Treasuries on the Effective Date; (b) such other treatment agreed to by the
holder of such Allowed Priority Tax Claim and the Debtors, provided such
treatment is on more favorable terms to the Debtors, as the case may be, than
the treatment set forth in paragraph (a) hereof; or (c) payment in full in Cash
on the Effective Date or as soon thereafter as is practicable.
2.5 DEADLINE FOR FILING ADMINISTRATIVE CLAIMS
2.5.1 ADMINISTRATIVE CLAIMS OTHER THAN TAX CLAIMS.
Other than with respect to (i) Administrative Claims for which the Bankruptcy
Court previously has established a Bar Date, and (ii) Tax Claims addressed in
Section 2.5.2 below, requests for payment or proofs of Administrative Claims,
including Claims of all professional or other entities requesting compensation
or reimbursement of expenses pursuant to Bankruptcy Code sections 327, 328, 330,
331, 503(b) or 1103 for services rendered on or before the Effective Date
(including any compensation requested by any professional or any other entity
for making a substantial contribution in the Debtors' Chapter 11 Cases), must be
Filed and served on the Plan
22
Administrator and its counsel no later than the Administrative Claims Bar Date.
Objections to any such Administrative Claims must be Filed and served on the
claimant on or before the later of (a) the first Business Day that is sixty (60)
days after the Administrative Claims Bar Date, (b) the first Business Day that
is sixty (60) days after such Administrative Claim is filed or (c) such other
extended date granted by the Court upon request by the Debtors or the Plan
Administrator. The Debtors and/or the Plan Administrator shall use reasonable
efforts to promptly and diligently pursue resolution of any and all disputed
Administrative Claims.
Holders of Administrative Claims, including all professional
or other entities requesting compensation or reimbursement of expenses pursuant
to Bankruptcy Code sections 327, 328, 330, 331, 503(b) or 1103 for services
rendered on or before the Effective Date (including any compensation requested
by any professional or any other entity for making a substantial contribution
in the Chapter 11 Cases), that are required to File a request for payment of
such Claims and that do not File such requests on or before the Administrative
Claims Bar Date shall be forever barred from asserting such Claims against any
of the Debtors, their Estates, the Plan Administrator, any other Person or
Entity, or any of their respective Assets.
2.5.2 TAX CLAIMS. All requests for payment of Claims
by a governmental unit for Taxes (and for interest and/or penalties or other
amounts related to such Taxes) for any tax year or period, all or any portion of
which occurs or falls within the period from and including the Petition Date
through and including the Effective Date, and for which no Bar Date has
otherwise been previously established, must be Filed on or before the later of:
(a) the first Business Day that is at least sixty (60) days following the
Effective Date; or (b) the first Business Day that is at least ninety (90) days
following the filing of the tax return for such Taxes for such tax year or
period with the applicable governmental unit. Any holder of a Claim for Taxes
that is required to File a request for payment of such Taxes and other amounts
due related to such Taxes and which does not File such a Claim by the applicable
bar date shall be forever barred from
23
asserting any such Claim against any of the Debtors, the Debtors' Estates, the
Plan Administrator or their respective Assets, whether any such Claim is deemed
to arise prior to, on, or subsequent to the Effective Date, and shall receive no
distribution under the Plan or otherwise on account of such Claim.
ARTICLE 3
CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS
A. GENERAL. Pursuant to section 1122 of the Bankruptcy Code, set forth below is
a designation of the Classes of Claims and Interests in the Debtors. A Claim or
Interest is placed in a particular Class only to the extent that such Claim or
Interest is an Allowed Claim or Interest in that Class and such Claim or
Interest has not been paid, released, or otherwise settled prior to the
Effective Date. In accordance with section 1123(a)(l) of the Bankruptcy Code,
Administrative Claims and Priority Tax Claims of the kinds specified in sections
507(a)(l) and 507(a)(8) of the Bankruptcy Code have not been classified, are
deemed to not be Impaired and are treated as set forth in Article 2 above.
B. CLASSIFICATION. As stated above, the Plan is premised on the substantive
consolidation of three separate groups of Debtors, (a) the Selling Debtors, (b)
the Coastal Debtors and (c) the Independence Debtors, respectively, in each case
with respect to the treatment of all Classes of Claims other than Administrative
Claims, Priority Tax Claims and Secured Claims, as provided below. The Plan does
not contemplate substantive consolidation with respect to the Classes of
Administrative Claims, Priority Tax Claims or Secured Claims or Interests
(provided, however, that, pursuant to the Settlement (defined below), the
Selling Debtors have agreed to pay all Administrative Claims and Priority Tax
Claims of all of the Debtors. The following summary is
24
for the convenience of the parties and is superseded for all purposes by the
classification, description and treatment of Claims and Interests immediately
following such summary chart.
3.1 CLASS 1A: SELLING DEBTORS OTHER PRIORITY CLAIMS.
Class 1A consists of all Other Priority Claims against the Selling Debtors.
3.2 CLASS IB: COASTAL DEBTORS OTHER PRIORITY CLAIMS.
Class IB consists of all Other Priority Claims against the Coastal Debtors.
3.3 CLASS IC: INDEPENDENCE DEBTORS OTHER PRIORITY
CLAIMS. Classic consists of all Other Priority Claims against the Independence
Debtors.
3.4 CLASS ID: COLUMBIA QUEEN OTHER PRIORITY CLAIMS.
Class ID consists of all Other Priority Claims against the Columbia Queen
Debtor.
3.5 CLASS IE: AMCV OTHER PRIORITY CLAIMS. Class IE
consists of all Other Priority Claims against AMCV.
3.6 CLASS 2: MARAD AQ SECURED CLAIMS. Class 2
consists of the Allowed Secured Claim of MARAD against Great AQ Steamboat,
L.L.C.
3.7 CLASS 3: OTHER AQ SECURED CLAIMS. Class 3
consists of all Other AQ Secured Claims.
3.8 CLASS 4: GENERAL SECURED CLAIMS. Class 4 consists
of all General Secured Claims, including Possessory Lienholder Claims.
3.9 CLASS 5: CONVENIENCE CLAIMS. Class 5 consists of
all Convenience Claims against the Selling Debtors. A holder of a Claim that
would have been classified in Class 6A, but elects to reduce its Claim to $1,000
to be classified in this Class, may only make such election as to all of such
holder's Claims in Class 6A in the aggregate. Therefore, if a Claim holder makes
an election to reduce any Class 6A Claim to $1,000, all of such holder's Class
6A Claims shall be reduced to a single Class 5 Claim of $1,000 in the aggregate,
and no Claims of such Claim holder shall remain in Class 6A.
25
3.10 CLASS 6A: SELLING DEBTORS GENERAL UNSECURED
CLAIMS. Class 6A consists of all General Unsecured Claims against the Selling
Debtors.
3.11 CLASS 6B: COASTAL DEBTORS GENERAL UNSECURED
CLAIMS. Class 6B consists of all General Unsecured Claims against the Coastal
Debtors.
3.12 CLASS 6C: INDEPENDENCE DEBTORS GENERAL UNSECURED
CLAIMS. Class 6C consists of all General Unsecured Claims against the
Independence Debtors.
3.13 CLASS 6D: COLUMBIA QUEEN GENERAL UNSECURED
CLAIMS. Class 6D consists of all General Unsecured Claims against the Columbia
Queen Debtor.
3.14 CLASS 6E: AMCV GENERAL UNSECURED CLAIMS. Class
6E consists of all General Unsecured Claims against AMCV.
3.15 CLASS 7: INTERCOMPANY CLAIMS. Class 7 consists
of all Intercompany Claims.
3.16 CLASS 8: INTERESTS. Class 8 consists of all
Interests.
ARTICLE 4
IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS IMPAIRED AND
NOT IMPAIRED BY THE PLAN
4.1 UNIMPAIRED CLASSES OF CLAIMS AND INTERESTS. Class
1A Selling Debtors Other Priority Claims, Class IB Coastal Debtors Other
Priority Claims, Class 1C Independence Debtors Other Priority Claims, Class ID
Columbia Queen Other Priority Claims, Class IE AMCV Other Priority Claims, Class
3 Other AQ Secured Claims and Class 4 General Secured Claims are not Impaired by
the Plan.
4.2 IMPAIRED CLASSES OF CLAIMS AND INTERESTS. Class 2
MARAD AQ Secured Claims, Class 5 Convenience Claims, Class 6A Selling Debtors
General Unsecured Claims, Class 6B Coastal Debtors General Unsecured Claims,
Class 6C Independence Debtors General
26
Unsecured Claims, Class 6D Columbia Queen General Unsecured Claims, Class 6E
AMCV General Unsecured Claims, Class 7 Intercompany Claims and Class 8 Interests
are Impaired by the Plan.
ARTICLE 5
PROVISIONS FOR THE TREATMENT OF CLAIMS AND INTERESTS
5.1 CLASS 1A (SELLING DEBTORS OTHER PRIORITY CLAIMS).
On the Effective Date, or as soon thereafter as is practicable, each Allowed
Selling Debtors Other Priority Claim shall be paid, in full satisfaction,
settlement, release and discharge of and in exchange for such Allowed Selling
Debtors Other Priority Claim, (a) Cash equal to the amount of such Allowed
Selling Debtors Other Priority Claim, or (b) such other treatment as to which
the Debtors and the holder of such Allowed Selling Debtors Other Priority Claim
have agreed upon in writing.
5.2 CLASS IB: (COASTAL DEBTORS OTHER PRIORITY
CLAIMS). On the Effective Date, or as soon thereafter as practicable, the
Coastal Debtors Settlement Cash Amount shall be distributed Pro Rata among
holders of Allowed Coastal Debtors Other Priority Claims in Class IB. If, after
the Effective Date, any Cash is available from the Coastal Debtors Settlement
Avoidance Action Percentage, the release of funds from the Disputed Claims
Reserve for Disputed Claims against the Coastal Debtors, or unclaimed,
undeliverable or time-barred distributions to holders of Allowed Coastal Debtors
Other Priority Claims pursuant to the Plan, then such Cash shall be distributed
in the same manner as the Coastal Debtors Settlement Cash Amount on a Subsequent
Distribution Date, if any, and the Final Distribution Date in accordance with
the procedures set forth below. Notwithstanding the foregoing, the aggregate
distributions received by the holders of Allowed Coastal Debtors Other Priority
Claims under the Plan shall not exceed the amount of the Allowed Claim (together
with interest on the unpaid portion thereof accruing from and after the
Effective Date at a rate equal to five percent (5%) per annum,
27
compounded annually). Based on expected recoveries from prosecution of Avoidance
Actions, the Debtors believe the foregoing will result in distributions on
account of Allowed Coastal Debtors Other Priority Claims with an aggregate
present value equal to the amount of such Allowed Claims as of the Effective
Date.
5.3 CLASS 1C: (INDEPENDENCE DEBTORS OTHER PRIORITY
CLAIMS). On the Effective Date, or as soon thereafter as practicable, the
Independence Debtors Settlement Cash Amount shall be distributed Pro Rata among
holders of Allowed Independence Debtors Other Priority Claims in Class 1C. If,
after the Effective Date, any Cash is available from the Independence Debtors
Settlement Avoidance Action Percentage, the release of funds from the Disputed
Claims Reserve for Disputed Claims against the Independence Debtors, or
unclaimed, undeliverable or time-barred distributions to holders of Allowed
Independence Debtors Other Priority Claims pursuant to the Plan, then such Cash
shall be distributed in the same manner as the Independence Debtors Settlement
Cash Amount on a Subsequent Distribution Date, if any, and the Final
Distribution Date in accordance with the procedures set forth below.
Notwithstanding the foregoing, the aggregate distributions received by the
holders of Allowed Independence Debtors Other Priority Claims under the Plan
shall not exceed the amount of the Allowed Claim (together with interest on the
unpaid portion thereof accruing from and after the Effective Date at a rate
equal to five percent (5%) per annum, compounded annually). Based on expected
recoveries from prosecution of Avoidance Actions, the Debtors believe the
foregoing will result in distributions on account of Allowed Independence
Debtors Other Priority Claims with an aggregate present value equal to the
amount of such Allowed Claims as of the Effective Date.
5.4 CLASS ID: (COLUMBIA QUEEN OTHER PRIORITY CLAIMS).
On the Effective Date, or as soon thereafter as practicable, the Columbia Queen
Settlement Cash Amount shall be distributed Pro Rata among holders of Allowed
Columbia Queen Other Priority Claims in Class
28
ID. If, after the Effective Date, any Cash is available from the Columbia Queen
Settlement Avoidance Action Percentage, the release of funds from the Disputed
Claims Reserve for Disputed Claims against the Columbia Queen, or unclaimed,
undeliverable or time-barred distributions to holders of Allowed Columbia Queen
Other Priority Claims pursuant to the Plan, then such Cash shall be distributed
in the same manner as the Columbia Queen Settlement Cash Amount on a Subsequent
Distribution Date, if any, and the Final Distribution Date in accordance with
the procedures set forth below. Notwithstanding the foregoing, the aggregate
distributions received by the holders of Allowed Columbia Queen Other Priority
Claims under the Plan shall not exceed the amount of the Allowed Claim (together
with interest on the unpaid portion thereof accruing from and after the
Effective Date at a rate equal to five percent (5%) per annum, compounded
annually). Based on expected recoveries from prosecution of Avoidance Actions,
the Debtors believe the foregoing will result in distributions on account of
Allowed Columbia Queen Other Priority Claims with an aggregate present value
equal to the amount of such Allowed Claims as of the Effective Date.
5.5 CLASS IE: (AMCV OTHER PRIORITY CLAIMS). Each
customer asserting a priority claim for deposits or prepayments for travel on
the m/s Patriot against AMCV shall be granted, as part of the Settlement, an
Allowed AMCV Other Priority Claim in an amount equal to his share (based on the
ratio of the allowed priority claim he would have against Oceanic Ship Co. (the
former owner of the m/s Patriot) had it filed a chapter 11 case to the aggregate
of all of the allowed priority claims all such customers would have against
Oceanic Ship Co. had it filed a chapter 11 case) of the difference between (a)
the sum of the AMCV Settlement Cash Amount and any Cash that becomes available
from the AMCV Settlement Avoidance Action Percentage minus (b) the amount
required to pay all holders of Allowed AMCV Other Priority Claims other than m/s
Patriot customers in full (including post-Effective Date interest). In addition,
they will retain their claims against non-Debtor Oceanic Ship Co. to the extent
the distributions they
29
receive hereunder do not constitute payment in full of all of their claims
against Oceanic Ship Co. for deposits or prepayments for travel on the m/s
Patriot or otherwise. On the Effective Date, or as soon thereafter as is
practicable, the AMCV Settlement Cash Amount shall be distributed Pro Rata among
holders of Allowed AMCV Other Priority Claims in Class IE. If, after the
Effective Date, any Cash is available from the AMCV Settlement Avoidance Action
Percentage, the release of funds from the Disputed Claims Reserve for Disputed
Claims against AMCV, or unclaimed, undeliverable or time-barred distributions to
holders of Allowed AMCV Other Priority Claims pursuant to the Plan, then such
Cash shall be distributed in the same manner as the AMCV Settlement Cash Amount
on a Subsequent Distribution Date, if any, and the Final Distribution Date in
accordance with the procedures set forth below. Notwithstanding the foregoing,
the aggregate distributions received by the holders of Allowed AMCV Other
Priority Claims under the Plan shall not exceed the amount of the Allowed Claim
(together with interest on the unpaid portion thereof accruing from and after
the Effective Date at a rate equal to five percent (5%) per annum, compounded
annually).
5.6 CLASS 2: (MARAD AQ SECURED CLAIMS). Pursuant to
the DNPS sale documentation in connection with the Asset Sale, payment of the
$47,311,509.40 Asset Sale proceeds allocable to the Assets of Great AQ
Steamboat, L.L.C. was in the form of assumption of the Assumed MARAD Notes and
execution and delivery of the New MARAD Note. Receipt by MARAD of the MARAD
Notes was in full satisfaction, settlement, release and discharge of and in
exchange for all Allowed Claims of MARAD against Great AQ Steamboat, L.L.C.
Accordingly, pursuant to the MARAD Stipulation, MARAD withdrew and released its
Claims against Great AQ Steamboat, L.L.C., including any MARAD AQ Deficiency
Claim.
5.7 CLASS 3 (OTHER AQ SECURED CLAIMS). At the
Debtors' option (after consultation with the Reconstituted Committee), as soon
as is practicable after the later of (x) the Effective Date, or (y) 30 days
after the date on which a Claim against Great AQ Steamboat,
30
L.L.C. becomes an Allowed Other AQ Secured Claim, the Debtors shall, in full
satisfaction, settlement, release and discharge of and in exchange for such
Allowed Other AQ Secured Claim, (a) distribute to each holder of an Allowed
Other AQ Secured Claim the collateral securing such Allowed Other AQ Secured
Claim, (b) distribute to each holder of an Allowed Other AQ Secured Claim Cash
in an amount not to exceed the amount of its Allowed Other AQ Secured Claim
(payable first, if applicable, from amounts set aside on account of such Other
AQ Secured Claim by order of the Bankruptcy Court), or (c) provide for such
other treatment as may be agreed upon by the holder of such Allowed Other AQ
Secured Claim and the Debtors. Pursuant to the MARAD Stipulation, the Debtors,
MARAD and the Creditors' Committee agreed that to the extent any holder of an
Allowed Other AQ Secured Claim has a valid, allowed claim secured by a valid and
perfected security interest or lien upon the American Queen vessel with priority
over the security interest and mortgage of MARAD, such prior secured claim shall
attach to the Cash proceeds of the Asset Sale and shall not attach to the MARAD
Notes or the proceeds thereof.
5.8 CLASS 4 (GENERAL SECURED CLAIMS). At the Debtors'
option (after consultation with the Reconstituted Committee), as soon as is
practicable after the later of (x) the Effective Date, or (y) thirty (30) days
after the date on which a Claim becomes an Allowed General Secured Claim, the
Debtors shall, in full satisfaction, settlement, release and discharge of and in
exchange for such Allowed General Secured Claim, (a) distribute to each holder
of an Allowed General Secured Claim the collateral securing such Allowed General
Secured Claim, (b) distribute to each holder of an Allowed General Secured Claim
Cash in an amount not to exceed the Allowed General Secured Claim, equal to the
proceeds actually realized from the sale of any collateral securing such Claim
(payable first, if applicable, from amounts set aside on account of such General
Secured Claim by order of the Bankruptcy Court), less the actual costs
31
and expenses of disposing of such collateral, or (c) provide for such other
treatment as may be agreed upon by the holder of such Allowed General Secured
Claim and the Debtors.
5.9 CLASS 5 (CONVENIENCE CLAIMS). At the Debtors'
option (after consultation with the Reconstituted Committee), as soon as
practicable after the later of (x) the Effective Date or (y) thirty (30) days
after the date on which a Convenience Claim becomes an Allowed Convenience
Claim, the Selling Debtors shall, in full satisfaction, settlement, release and
discharge of such Allowed Convenience Claim, (a) distribute to each holder of an
Allowed Convenience Claim Cash in an amount equal to 50% of such Allowed
Convenience Claim, or (b) provide for such other treatment as may be agreed upon
by the holder of such Allowed Convenience Claim and the Debtors.
5.10 CLASS 6A (SELLING DEBTORS GENERAL UNSECURED
CLAIMS). After (a) satisfaction in full or satisfaction in accordance with this
Plan of all Allowed Administrative Claims, Allowed Professional Claims and
Allowed Priority Tax Claims as provided in Article 2 of the Plan, (b) the
payment of the Coastal Debtors Settlement Cash Amount, the Independence Debtors
Settlement Cash Amount, the Columbia Queen Settlement Cash Amount and the AMCV
Settlement Cash Amount and (c) the treatment provided in the Plan for Allowed
Claims in Classes 1 A, 2, 3,4 and 5, all remaining Available Cash of the Selling
Debtors shall be distributed Pro Rata among holders of Allowed Selling Debtors
General Unsecured Claims in Class 6A. If, after the Effective Date, any Cash is
available from, among other things, the liquidation of Assets of the Debtors'
Estates, the prosecution and enforcement of causes of action of the Debtors, the
release of funds from the Disputed Claims Reserve for Disputed Claims asserted
against the Selling Debtors, or unclaimed, undeliverable or time-barred
distributions to holders of Allowed Claims against the Selling Debtors pursuant
to the Plan, then 50% of the Cash received from the prosecution of Avoidance
Actions (net of the costs of Avoidance Actions) and 100% of Cash received from
other sources shall be treated as Available Cash of the
32
Selling Debtors and distributed in accordance with this Section 5.6 on a
Subsequent Distribution Date, if any, and the Final Distribution Date in
accordance with the procedures set forth below. Notwithstanding the foregoing,
the aggregate distributions received pursuant to the Plan shall not exceed the
amount of the Allowed Claim (together with postpetition interest accruing on
such Allowed Claims from and after the Petition Date at a rate equal to five
percent (5%) per annum, compounded annually, solely for purposes of calculating
the cap on any such distribution).
5.11 CLASS 6B (COASTAL DEBTORS GENERAL UNSECURED CLAIMS). After
satisfaction in full or satisfaction in accordance with this Plan of all Coastal
Debtors Other Priority Claims, any remaining Coastal Debtors Settlement Cash
Amount, Cash proceeds from the Coastal Debtors Settlement Avoidance Action
Percentage, funds released from the Disputed Claims Reserve for Disputed Claims
against the Coastal Debtors, or unclaimed, undeliverable or time-barred
distributions to holders of Allowed Claims against the Coastal Debtors pursuant
to the Plan, shall be treated as Available Cash of the Coastal Debtors and
distributed Pro Rata among the holders of Allowed Coastal Debtors General
Unsecured Claims in Class 6B on a Subsequent Distribution Date, if any, and the
Final Distribution Date in accordance with the procedures set forth below.
Notwithstanding the foregoing, the aggregate distributions received pursuant to
the Plan shall not exceed the amount of the Allowed Claim (together with
postpetition interest accruing on such Allowed Claims from and after the
Petition Date at a rate equal to five (5%) per annum, compounded annually,
solely for purposes of calculating the cap on any such distribution).
5.12 CLASS 6C (INDEPENDENCE DEBTORS GENERAL UNSECURED CLAIMS). After
satisfaction in full or satisfaction in accordance with this Plan of all
Independence Debtors Other Priority Claims, any remaining Independence Debtors
Settlement Cash Amount, Cash proceeds from the Independence Debtors Settlement
Avoidance Action Percentage, funds released from the Disputed Claims Reserve for
Disputed Claims against the Independence Debtors, or
33
unclaimed, undeliverable or time-barred distributions to holders of Allowed
Claims against the Independence Debtors pursuant to the Plan, shall be treated
as Available Cash of the Independence Debtors and distributed Pro Rata among the
holders of Allowed Independence Debtors General Unsecured Claims in Class 6C on
a Subsequent Distribution Date, if any, and the Final Distribution Date in
accordance with the procedures set forth below. Notwithstanding the foregoing,
the aggregate distributions received pursuant to the Plan shall not exceed the
amount of the Allowed Claim (together with postpetition interest accruing on
such Allowed Claims from and after the Petition Date at a rate equal to five
(5%) per annum, compounded annually, solely for purposes of calculating the cap
on any such distribution).
5.13 CLASS 6D (COLUMBIA QUEEN GENERAL UNSECURED CLAIMS). After
satisfaction in full or satisfaction in accordance with this Plan of all
Columbia Queen Other Priority Claims, any remaining Columbia Queen Settlement
Cash Amount, Cash proceeds from the Columbia Queen Settlement Avoidance Action
Percentage, funds released from the Disputed Claims Reserve for Disputed Claims
against the Columbia Queen Debtor, or unclaimed, undeliverable or time-barred
distributions to holders of Allowed Claims against the Columbia Queen Debtor
pursuant to the Plan, shall be treated as Available Cash of the Columbia Queen
Debtor and distributed Pro Rata among the holders of Allowed Columbia Queen
General Unsecured Claims in Class 6D on a Subsequent Distribution Date, if any,
and the Final Distribution Date in accordance with the procedures set forth
below. Notwithstanding the foregoing, the aggregate distributions received
pursuant to the Plan shall not exceed the amount of the Allowed Claim (together
with postpetition interest accruing on such Allowed Claims from and after the
Petition Date at a rate equal to five (5%) per annum, compounded annually,
solely for purposes of calculating the cap on any such distribution).
5.14 CLASS 6E (AMCV GENERAL UNSECURED CLAIMS). After satisfaction in
full or satisfaction in accordance with this Plan of all AMCV's Other Priority
Claims, any remaining
34
AMCV Settlement Cash Amount, Cash proceeds from the AMCV Settlement Avoidance
Action Percentage, funds released from the Disputed Claims Reserve for Disputed
Claims against AMCV, or unclaimed, undeliverable or time-barred distributions to
holders of Allowed Claims against AMCV pursuant to the Plan, shall be treated as
Available Cash of AMCV and distributed Pro Rata among the holders of Allowed
AMCV General Unsecured Claims in Class 6E on a Subsequent Distribution Date, if
any, and the Final Distribution Date in accordance with the procedures set forth
below. Notwithstanding the foregoing, the aggregate distributions received
pursuant to the Plan shall not exceed the amount of the Allowed Claim (together
with postpetition interest accruing on such Allowed Claims from and after the
Petition Date at a rate equal to five (5%) per annum, compounded annually,
solely for purposes of calculating the cap on any such distribution).
5.15 CLASS 7 (INTERCOMPANY CLAIMS). As a result of the Settlement,
holders of Intercompany Claims will not receive any distribution of property
under the Plan on account of their Intercompany Claims and, on the Effective
Date, the Intercompany Claims will be cancelled.
5.16 CLASS 8 (INTERESTS). Holders of Interests will not receive any
distribution of property under the Plan on account of their Interests and, on
the Effective Date, the Interests will be cancelled.
ARTICLE 6
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
6.1 ASSUMPTION; ASSIGNMENT. As of the Effective Date, the Debtors
(after consultation with the Creditors' Committee) shall assume or assume and
assign, as applicable, pursuant to Bankruptcy Code section 365, each of the
executory contracts and unexpired leases of the Debtors that are identified in
the Disclosure Statement or any Exhibit thereto that have not
35
expired under their own terms prior to the Effective Date. The Debtors reserve
the right to amend such Exhibit not later than ten (10) days prior to the
Confirmation Hearing either to: (a) delete any executory contract or lease
listed therein and provide for its rejection pursuant to Section 6.4 hereof; or
(b) add any executory contract or lease to such Exhibit, thus providing for its
assumption or assumption and assignment, as applicable, pursuant to this
Section. The Debtors shall provide notice of any such amendment of such Exhibit
to the parties to the executory contract or lease affected thereby and counsel
for the Creditors' Committee not later than ten (10) days prior to the
Confirmation Hearing. The Confirmation Order shall constitute an order of the
Bankruptcy Court pursuant to Bankruptcy Code section 365 approving all such
assumptions or assumptions and assignments, as applicable, described in this
Section 6.1, as of the Effective Date.
6.2 CURE PAYMENTS; ASSURANCE OF PERFORMANCE. Any monetary defaults
under each executory contract and unexpired lease to be assumed under the Plan
shall be satisfied, pursuant to Bankruptcy Code section 365(b)(l), in either of
the following ways: (a) by payment of the default amount in Cash, in full on the
Effective Date; or (b) by payment of the default amount on such other terms as
may be agreed to by the Debtors and the non-Debtor parties to such executory
contract or lease. In the event of a dispute regarding (i) the amount or timing
of any cure payments, (ii) the ability of the Debtors, the Plan Administrator,
or an assignee thereof to provide adequate assurance of future performance under
the contract or lease to be assumed or assumed and assigned, as applicable, or
(iii) any other matter pertaining to assumption or assumption and assignment of
the contract or lease to be assumed, the Debtors shall pay all required cure
amounts promptly following the entry of a Final Order resolving the dispute.
6.3 OBJECTIONS TO ASSUMPTION OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES. To the extent that any party to an executory contract or unexpired lease
identified for assumption asserts arrearages or damages pursuant to Bankruptcy
Code section 365(b)(l), or has
36
any objection with respect to adequate assurance of future performance, any
proposed assumption, revestment, cure or assignment on the terms and conditions
provided herein, all such arrearages, damages and objections must be Filed and
served: (a) as to any contracts or leases identified in the Disclosure Statement
or any Exhibit thereto that is mailed to any party to any such contract or lease
along with all other solicitation materials accompanying the Plan, within the
same deadline and in the same manner established for the Filing and service of
objections to Confirmation; and (b) as to any contracts or leases identified in
any subsequent amendments to the Disclosure Statement or any Exhibit thereto
that is mailed to any party to any such contract or lease not later than ten
(10) days prior to the Confirmation Hearing, in such a manner as to be received
by the Bankruptcy Court and Debtors, the Plan Administrator and counsel thereto,
as the case may be, if applicable, no later than three (3) days prior to the
Confirmation Hearing.
Failure to assert such arrearages, damages or objections in the manner
described above shall constitute consent to the proposed assumption, revestment,
cure or assignment on the terms and conditions provided herein, including an
acknowledgement that the proposed assumption and/or assignment provides adequate
assurance of future performance and that the amount identified for "cure" in the
Disclosure Statement or any Exhibit thereto is the amount necessary to cover any
and all outstanding defaults under the executory contract or unexpired lease to
be assumed, as well as an acknowledgement and agreement that no other defaults
exist under such contract or lease.
If any assumption of an executory contract or unexpired lease proposed
herein for any reason is not approved by the Bankruptcy Court, then the Debtors
shall be entitled, in their sole discretion, upon written notice to the
applicable non-Debtor party to such executory contract or unexpired lease, to
deem such executory contract or unexpired lease to have been rejected pursuant
to the provisions of Section 6.4 below.
37
6.4 REJECTION. Except for those executory contracts and unexpired
leases (a) that are assumed pursuant to this Plan, (b) that are the subject of
previous orders of the Bankruptcy Court providing for their assumption or
rejection pursuant to Bankruptcy Code section 365, or (c) that are the subject
of a pending motion before the Bankruptcy Court with respect to the assumption
or assumption and assignment of such executory contracts and unexpired leases,
as of the Effective Date, all executory contracts and unexpired leases of the
Debtors shall be rejected pursuant to section 365 of Bankruptcy Code.
6.5 APPROVAL OF REJECTION; REJECTION DAMAGES CLAIMS BAR DATE. The
Confirmation Order shall constitute an Order of the Bankruptcy Court approving
all rejections under Section 6.4 above of executory contracts and unexpired
leases pursuant to Bankruptcy Code section 365 as of the Effective Date. Any
Claim for damages arising from any such rejection must be Filed within thirty
(30) days after the mailing of notice of the entry of the Confirmation Order or
such Claim shall be forever barred, shall not be enforceable against the
Debtors, their Estates, the Plan Administrator, or any of their respective
properties and shall receive no distribution under the Plan or otherwise on
account of such Claim. Objections to any Claim for damages arising from any such
rejection must be Filed and served on the claimant on or before the later of (a)
the first Business Day that is sixty (60) days after the Effective Date, (b) the
first Business Day that is sixty (60) days after the date such Claim for damages
is Filed or (c) such other extended date granted by the Court upon request by
the Debtors and/or the Plan Administrator.
ARTICLE 7
MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN
7.1 ENGAGEMENT OF PLAN ADMINISTRATOR. On and after the Effective Date,
the Debtors shall engage Paul Gunther (or such other Person as is designated by
the Creditors'
38
Committee or Reconstituted Committee and approved by the Bankruptcy Court) as
Plan Administrator. The Plan Administrator may be terminated or replaced only
with prior Bankruptcy Court approval after notice and a hearing. The Plan
Administrator shall be appointed the sole director, president and chief
executive officer of the Debtors and shall perform the duties set forth in this
Plan through the earlier of the date the Debtors are dissolved in accordance
with Section 7.14 of the Plan and the date the Plan Administrator resigns, is
unable to serve, or is terminated for cause, provided, however, that, in the
event that the Plan Administrator resigns, is unable to serve, or is terminated
for cause prior to the date the Debtors are dissolved in accordance with Section
7.14 of the Plan, then an individual to be named by the Reconstituted Committee
shall, by operation of the Plan and without need for further Bankruptcy Court
order or corporate action, be appointed the Plan Administrator, sole director,
president and chief executive officer of the Debtors subject to the foregoing
provisions. Within fifteen (15) business days after the Effective Date, the Plan
Administrator shall obtain a fiduciary bond in the face amount equal to the
amount of Available Cash of all Debtors plus 10%, evidence of which shall be
Filed with the Bankruptcy Court, which bond (or a substitute bond for any
successor Plan Administrator) shall remain in place until the resignation or
removal of the Plan Administrator. The cost of such bond shall be treated as an
Administrative Expense, which shall be paid out of Available Cash of the Selling
Debtors.
7.2 CONTINUING EXISTENCE. From and after the Confirmation Date, the
Debtors shall continue in existence. The Plan Administrator, with the consent of
the Creditors' Committee or Reconstituted Committee or approval of the
Bankruptcy Court, shall have authority on behalf of the Debtors, without further
approval from the Bankruptcy Court, to take all actions necessary to: (a) hold,
manage, protect, administer, collect, sell, liquidate, prosecute, transfer,
resolve, settle, adjust, invest, distribute, or otherwise dispose of any Assets
of the Debtors' Estates, including, without limitation, causes of action
described in Section 9.1 of this
39
Plan not released in this Plan; (b) reconcile Claims and contest objectionable
Claims and Disputed Claims; (c) make all distributions to be funded under this
Plan; (d) engage professionals (including those professionals that presently
represent the Debtors and the Creditors' Committee) and any other Entities
necessary to assist the Plan Administrator and the Creditors' Committee or
Reconstituted Committee in fulfilling their responsibilities; (e) pay all
necessary expenses incurred in connection with the foregoing activities; (f)
administer the Plan; (g) file tax returns and make other related corporate
filings; (h) transfer Assets; (i) administer the Plan and the Assets of the
Debtors' Estates; and (j) undertake such other responsibilities as are
reasonable and appropriate. The Plan Administrator shall have absolute
discretion to pursue or not to pursue any and all claims, rights, or causes of
action that the Debtors retain pursuant to this Plan, as he determines in the
exercise of his business judgment and in consultation with the Creditors'
Committee or Reconstituted Committee as provided herein, and shall have no
liability for the outcome of his decision. Subject to Section 7.9 of the Plan,
the Plan Administrator may incur and pay any reasonable and necessary expenses
on behalf of the Debtors in performing the foregoing functions without
Bankruptcy Court approval.
7.3 POST-EFFECTIVE DATE OVERSIGHT OF THE DEBTORS. On the Effective
Date, the Creditors' Committee shall be dissolved and the members thereof shall
be released and discharged from all authority, duties, responsibilities, and
obligations and related to and arising from and in connection with the Chapter
11 Cases. On the Effective Date, the Creditors' Committee shall be reconstituted
to consist of members to be appointed by the Creditors' Committee (the
"Reconstituted Committee"). The Reconstituted Committee shall be authorized to
have its reasonable expenses reimbursed from the Operating Reserve. Members of
the Reconstituted Committee shall receive no compensation except reimbursement
of expenses actually incurred directly in connection with their duties on the
Reconstituted Committee. The Reconstituted Committee shall be authorized to
employ counsel, which firm (or firms) shall be
40
entitled to compensation from the Operating Reserve in accordance with Section
7.9 of the Plan. The Reconstituted Committee and its advisors shall be
authorized solely to oversee distributions under this Plan and to exercise those
remedies available to the Reconstituted Committee under this Plan; provided,
however, that if the Plan Administrator fails to perform any material
obligations under this Plan, the Reconstituted Committee may, upon notice and a
hearing, seek a Bankruptcy Court order to enforce the provisions of the Plan and
may employ such experts as may be necessary to advise the Reconstituted
Committee with respect to such action.
7.4 PLAN ADMINISTRATOR COMPENSATION. The Plan Administrator shall be
compensated at a rate agreed to by the Plan Administrator and the Reconstituted
Committee.
7.5 PLAN ADMINISTRATOR AND RECONSTITUTED COMMITTEE FIDUCIARIES. The
Reconstituted Committee and the Plan Administrator shall act in a fiduciary
capacity for the interests of all holders of Allowed Claims, but neither any
decision of the Plan Administrator or the Reconstituted Committee nor the vote
of any single member of the Reconstituted Committee shall bind, limit or
restrict the rights or obligations of any member of the Reconstituted Committee
to or against the Debtors, their Estates or any third party. Notwithstanding the
foregoing, the fiduciary obligations of members of the Reconstituted Committee
shall not restrict their ability to act independently in their own interests.
7.6 CANCELLATION OF INSTRUMENTS, SECURITIES AND OTHER DOCUMENTATION.
Except to the extent otherwise provided under the Plan, upon the Effective Date,
all agreements (other than assumed contracts and third party guaranties and
indemnities of the Debtors' obligations), credit agreements, prepetition loan
documents and postpetition loan documents to which any Debtor is a party, and
all lien claims and other evidence of liens against any Debtors, shall be deemed
to be cancelled and of no further force and effect, without any further action
on the part of the Debtors or the Plan Administrator. The holders of or parties
to such cancelled instruments, agreements, securities and other documentation
will have no remaining rights
41
arising from or relating to such documents or the cancellation thereof, except
the rights provided pursuant to this Plan; provided, however, the Plan
Administrator shall not be required to make any distribution under this Plan to
or on behalf of any holder of an Allowed Claim evidenced by such cancelled
instruments or securities unless and until such instruments or securities are
marked cancelled by the holders thereof and received by Debtors or the Plan
Administrator. Nothing set forth in this Section 7.6 should be deemed to cancel
any obligations of DNPS to MARAD pursuant to the MARAD Notes.
7.7 No REVESTING OF ASSETS. The property of the Debtors' Estates shall
not be revested in the Debtors on or following the Confirmation Date or the
Effective Date but shall remain property of the Debtors' Estates and continue to
be subject to the jurisdiction of the Bankruptcy Court following Confirmation of
the Plan until distributed to holders of Allowed Claims or liquidated with the
proceeds being contributed to Available Cash, in accordance with the provisions
of the Plan and the Confirmation Order.
7.8 POST-CONFIRMATION OPERATIONS. Following Confirmation and prior to
the occurrence of the Effective Date, the Debtors shall execute such documents
and take such other action as is necessary to effectuate the transactions
provided for in this Plan. Upon the Effective Date, all officers and directors
of the Debtors shall be deemed to have resigned without further action.
7.9 POST-CONFIRMATION PROFESSIONAL FEES AND EXPENSES. Counsel to the
Debtors, counsel to the Reconstituted Committee and other professional persons
who may be retained in this case may, from time to time, following the Effective
Date, provide legal or other professional services in connection with the
Chapter 11 Cases which are not encompassed within an application for allowance
approved by the Bankruptcy Court. Such services may be paid from the Operating
Reserve without further application to the Court within ten (10) days after
submission of a bill to the Plan Administrator with copies to the Debtors'
counsel, and counsel to
42
the Reconstituted Committee, provided that no objection to the payment is
raised. If an objection is raised and remains unresolved, the affected
professional may file an application for allowance with the Bankruptcy Court on
notice to the Plan Administrator, counsel to the Debtors, counsel to the
Reconstituted Committee, the United States Trustee, and any party having filed a
request for notice in the Chapter 11 Cases. Such additional fees and expenses
will thereafter be paid in the amounts fixed by the Bankruptcy Court.
7.10 POST-EFFECTIVE DATE REPORTING. As promptly as practicable after
the making of any distributions that are required under the Plan to be made on
the Effective Date, but in any event no later than ten (10) Business Days after
the making of such distributions, the Debtors shall provide the Reconstituted
Committee with a report setting forth the amounts and timing of all such
distributions and the recipients thereof. Thereafter, the Debtors shall provide
to the Reconstituted Committee quarterly reports summarizing (i) the cash
receipts and disbursements of the Debtors for the immediately preceding
three-month period and (ii) the status of resolution of any Disputed Claims
during that same period. Each quarterly report shall also state the Debtors'
cash balances as of the beginning and ending of each such period. Quarterly
reports shall be provided no later than the fifteenth (15th) day of each
January, April, July and October until all Final Distributions under the Plan
have been made. In addition, the Debtors shall promptly provide to the
Reconstituted Committee such other additional information that the Reconstituted
Committee reasonably requires in connection with carrying out its duties and
obligations in connection with this Plan.
7.11 POST-EFFECTIVE DATE INDEMNIFICATION CLAIMS AND THE INDEMNIFICATION
RESERVE. On or before the Effective Date, the Debtors will establish the
Indemnification Reserve. The Indemnification Reserve shall be used to pay any
Indemnification Claims not otherwise released pursuant to the Plan. For the
purpose of this Section 7.11 and the distributions to be made under the Plan,
(a) Claims of the Plan Administrator arising from the
43
indemnification obligations of the Debtors to the Plan Administrator in his
present or former capacity as a representative and/or officer of the Debtors'
Estates and (b) the costs associated with any director's and/or officer's policy
assumed pursuant to Section 6.1 hereof, shall be paid from the Indemnification
Reserve but not capped by the amounts contained therein. On the Final
Distribution Date, any funds remaining in the Indemnification Reserve shall (i)
first, be used to prepay remaining coverage under any director's and/or
officer's policy assumed pursuant to Section 6.1 hereof, and (ii) second, to the
extent remaining, become Available Cash of the Selling Debtors subject to the
Final Distribution procedures set forth in Section 10.14 hereof.
7.12 POST-CONFIRMATION FUNDING OF OPERATIONS AND FUNDING OF PLAN. This
Plan shall be funded by (i) Available Cash of the Selling Debtors on the
Effective Date, (ii) funds added to Available Cash of the Selling Debtors after
the Effective Date from, among other things, the liquidation of the Debtors'
remaining Assets and the prosecution and enforcement of causes of action, (iii)
the proceeds of the Settlement between the Selling Debtors and the other
Debtors, and (iv) the release of any funds held in reserve in accordance with
the terms thereof. The post-Confirmation operations of the Debtors shall be
funded from the Operating Reserve.
7.13 POST-CONFIRMATION ACCOUNTS. The Debtors may establish one or more
interest-bearing accounts as they determine may be necessary or appropriate to
effectuate the provisions of this Plan consistent with section 345 of the
Bankruptcy Code and any orders of the Bankruptcy Court, including accounts for
the Operating Reserve, the Indemnification Reserve and the Disputed Claims
Reserve.
7.14 DISSOLUTION OF THE DEBTORS. Upon the distribution of all Assets of
the Debtors' Estates pursuant to this Plan (including the transfer of any
amounts held in reserve) and the filing by or on behalf of the Debtors of a
certification to that effect with the Bankruptcy Court, the Debtors will be
dissolved for all purposes effective as of the Final Distribution Date without
the necessity for any other or further actions to be taken by or on behalf of
the Debtors
44
or payments to be made in connection therewith, provided, however, that each of
the Debtors shall file with the official public office for keeping corporate
records in its state of incorporation or organization a certificate of
dissolution or equivalent document. Such a certificate of dissolution may be
executed by the Plan Administrator without need for any action or approval by
the shareholders, members or Board of Directors of any Debtor. From and after
the Effective Date, the Debtors (i) for all purposes shall be deemed to have
withdrawn their business operations from any state in which the Debtors were
previously conducting, or are registered or licensed to conduct, their business
operations, and shall not be required to file any document, pay any sum or take
any other action, in order to effectuate such withdrawal, (ii) shall be deemed
to have cancelled pursuant to this Plan all Interests and all Intercompany
Claims, and (iii) shall not be liable in any manner to any taxing authority for
franchise, business, license or similar taxes accruing on or after the Effective
Date.
7.15 Closing of the Chapter 11 Cases. Notwithstanding anything to the
contrary in the Bankruptcy Rules providing for earlier closure of the Chapter 11
Cases, when all Disputed Claims against the Debtors have become Allowed Claims
or have been disallowed by Final Order, and all remaining Assets of the Debtors
have been liquidated and converted into Cash (other than those Assets abandoned
by the Debtors or, if applicable, the Reconstituted Committee), and such Cash
has been distributed in accordance with this Plan, or at such earlier time as
the Debtors, in consultation with the Reconstituted Committee, deem appropriate,
the Debtors shall seek authority from the Bankruptcy Court to close the Chapter
11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules.
45
ARTICLE 8
SETTLEMENT
The Selling Debtors sold substantially all of their assets for
approximately $80.9 million in cash and assumed liabilities. The other Debtors
have little or no assets except for potential Avoidance Actions and Intercompany
Claims, including substantive consolidation claims against the Selling Debtors.
In an effort to treat all of the Estates of the Debtors and all of the Creditors
thereof fairly, to avoid costly potential litigation among the Debtors and
between the Debtors and non-Debtor Oceanic Ship Co. which would substantially
reduce recoveries for all Creditors and to ensure speedy and efficient
distributions to Creditors, the Debtors and non-Debtor Oceanic Ship Co. have
agreed to the following Settlement, subject to Court approval.
8.1 Intercompany Claims of AMCV against the Selling Debtors. AMCV
asserts Intercompany Claims against the Selling Debtors totalling approximately
$64 million. In addition, AMCV asserts substantive consolidation claims against
the Selling Debtors because all of the Debtors utilize a centralized cash
management system. The Selling Debtors assert that AMCV's Intercompany Claims
should either be recharacterized as equity contributions or equitably
subordinated pursuant to section 510(c) of the Bankruptcy Code. The Intercompany
Claims never bore any of the hallmarks of a debt obligation. They were never
memorialized by intercompany notes or other loan documentation, they never had
fixed maturity dates or payment schedules and they did not bear interest.
Moreover, the Selling Debtors assert that AMCV should not be granted the
extraordinary remedy of substantive consolidation because, aside from a
centralized cash management system and similar directors and officers, the
Selling Debtors operated separately from AMCV. After consultation with the
Creditors' Committee and the Examiner, the Selling Debtors and AMCV have agreed
to settle and release all Intercompany Claims they have against each other,
including, without limitation, substantive consolidation
46
claims, in exchange for the following: (a) the Selling Debtors shall pay all
Allowed Administrative Claims, Allowed Professional Claims and Allowed Priority
Tax Claims against any or all of the Debtors, (b) the Selling Debtors shall fund
the Operating Reserve and the Indemnification Reserve, (c) AMCV shall transfer
any and all of its Assets (except those constituting collateral for a General
Secured Claim against AMCV) and causes of action, including Avoidance Actions,
to the Selling Debtors, (d) the Selling Debtors shall pay to AMCV the AMCV
Settlement Cash Amount, and (e) AMCV shall receive the Cash Proceeds from the
AMCV Settlement Avoidance Action Percentage.
8.2 INTERCOMPANY CLAIMS OF THE COASTAL DEBTORS AGAINST THE SELLING
DEBTORS. The Coastal Debtors assert Intercompany Claims against the Selling
Debtors seeking to substantively consolidate the Coastal Debtors and the Selling
Debtors. The Selling Debtors assert that the Coastal Debtors should not be
granted the extraordinary remedy of substantive consolidation because, aside
from a centralized cash management system and similar directors and officers,
the Selling Debtors operated separately from the Coastal Debtors. After
consultation with the Creditors' Committee and the Examiner, the Selling Debtors
and Coastal Debtors have agreed to settle and release all Intercompany Claims
they have against each other, including, without limitation, substantive
consolidation claims, in exchange for the following: (a) the Selling Debtors
shall pay all Allowed Administrative Claims, Allowed Professional Claims and
Allowed Priority Tax Claims against any or all of the Debtors, (b) the Selling
Debtors shall fund the Operating Reserve and the Indemnification Reserve, (c)
the Coastal Debtors shall transfer any and all of their Assets (except those
constituting collateral for a General Secured Claim against any of the Coastal
Debtors) and causes of action, including Avoidance Actions, to the Selling
Debtors, (d) the Selling Debtors shall pay to the Coastal Debtors the Coastal
Debtors Settlement Cash Amount, and (e) the Coastal Debtors shall receive the
Cash proceeds from the Coastal Debtors Settlement Avoidance Action Percentage.
47
8.3 INTERCOMPANY CLAIMS OF THE INDEPENDENCE DEBTORS AGAINST THE SELLING
DEBTORS. The Independence Debtors assert Intercompany Claims against the Selling
Debtors seeking to substantively consolidate the Independence Debtors and the
Selling Debtors. The Selling Debtors assert Intercompany Claims against the
Independence Debtors in an aggregate amount of approximately $49.7 million.
Moreover, the Selling Debtors assert that the Independence Debtors should not be
granted the extraordinary remedy of substantive consolidation because, aside
from a centralized cash management system and similar directors and officers,
the Selling Debtors operated separately from the Independence Debtors. After
consultation with the Creditors' Committee and the Examiner, the Selling Debtors
and Independence Debtors have agreed to settle and release all Intercompany
Claims they have against each other, including, without limitation, substantive
consolidation claims, in exchange for the following: (a) the Selling Debtors
shall pay all Allowed Administrative Claims, Allowed Professional Claims and
Allowed Priority Tax Claims against any or all of the Debtors, (b) the Selling
Debtors shall fund the Operating Reserve and the Indemnification Reserve, (c)
the Independence Debtors shall transfer any and all of their Assets (except
those constituting collateral for a General Secured Claim against any of the
Independence Debtors) and causes of action, including Avoidance Actions, to the
Selling Debtors, (d) the Selling Debtors shall pay to the Independence Debtors
the Independence Debtors Settlement Cash Amount, and (e) the Independence
Debtors shall receive the Independence Debtors Settlement Avoidance Action
Percentage.
8.4 INTERCOMPANY CLAIMS OF THE COLUMBIA QUEEN DEBTOR AGAINST THE
SELLING DEBTORS. The Columbia Queen Debtor asserts Intercompany Claims against
the Selling Debtors seeking to substantively consolidate the Columbia Queen
Debtor and the Selling Debtors. The Selling Debtors assert Intercompany Claims
against the Columbia Queen Debtor in an aggregate amount of approximately $1.55
million. Moreover, the Selling Debtors assert that the Columbia
48
Queen Debtor should not be granted the extraordinary remedy of substantive
consolidation because, aside from a centralized cash management system and
similar directors and officers, the Selling Debtors operated separately from the
Columbia Queen Debtor. After consultation with the Creditors' Committee and the
Examiner, the Selling Debtors and Columbia Queen Debtor have agreed to settle
and release all Intercompany Claims they have against each other, including,
without limitation, substantive consolidation claims, as follows: (a) the
Selling Debtors shall pay all Allowed Administrative Claims, Allowed
Professional Claims and Allowed Priority Tax Claims against any or all of the
Debtors, (b) the Selling Debtors shall fund the Operating Reserve and the
Indemnification Reserve, (c) the Columbia Queen Debtor shall transfer any and
all of its Assets (except those constituting Collateral for a General Secured
Claim against the Columbia Queen Debtor) and causes of action, including
Avoidance Actions, to the Selling Debtors, (d) the Selling Debtors shall pay to
the Columbia Queen Debtor the Columbia Queen Debtor Settlement Cash Amount, and
(e) the Columbia Queen Debtor shall receive the Cash proceeds of the Columbia
Queen Debtor Settlement Avoidance Action Percentage.
8.5 PRIORITY CLAIMS OF M/S PATRIOT CUSTOMERS AGAINST AMCV. Oceanic Ship
Co. asserts claims against AMCV seeking to substantively consolidate non-Debtor
Oceanic Ship Co. and AMCV. AMCV asserts claims against Oceanic Ship Co. in an
aggregate amount of approximately $41.6 million. Moreover, AMCV asserts that
Oceanic Ship Co. should not be granted the extraordinary remedy of substantive
consolidation because, aside from a centralized cash management system and
similar directors and officers, Oceanic Ship Co. operated separately from AMCV.
After consultation with the Creditors' Committee and the Examiner, Oceanic Ship
Co. has agreed to release any substantive consolidation claim it has against any
of the Debtors pursuant to a Settlement Agreement in the form attached hereto as
Exhibit 4 in exchange for each customer asserting a priority claim for deposits
or prepayments for travel on
49
the m/s Patriot being granted an Allowed AMCV Other Priority Claim in an amount
equal to his share (based on the ratio of the allowed priority claim he would
have against Oceanic Ship Co. (the former owner of the m/s Patriot) had it filed
a chapter 11 case to the aggregate of all of the allowed priority claims all
such customers would have against Oceanic Ship Co. had it filed a chapter 11
case) of the difference between (a) the sum of the AMCV Settlement Cash Amount
and any Cash that becomes available from the AMCV Settlement Avoidance Action
Percentage minus (b) the amount required to pay all holders of Allowed AMCV
Other Priority Claims other than m/s Patriot customers in full (including
post-Effective Date interest). Nothing set forth in this Settlement shall in any
way be deemed a release of any claims of any m/s Patriot customers of any claims
against non-Debtor Oceanic Ship Co. Such customers will retain their claims
against non-Debtor Oceanic Ship Co. to the extent the distributions they receive
hereunder do not constitute payment in full of all of their claims against
Oceanic Ship Co. for deposits or prepayments for travel on the m/s Patriot or
otherwise.
ARTICLE 9
POSTCONFIRMATION LITIGATION
9.1 RETENTION AND ENFORCEMENT OF CAUSES IN ACTION. Pursuant to section
1123(b)(3) of the Bankruptcy Code, except as otherwise provided in this Plan or
the Confirmation Order, the Plan Administrator will have the exclusive right to
enforce any and all causes of action against any Person and rights of the
Debtors that arose before, on or after the Petition Date, including but not
limited to the rights and powers of a trustee and debtor-in-possession, against
any Person whatsoever, including but not limited to all avoidance powers granted
to the Debtors under the Bankruptcy Code and all causes of action and remedies
granted pursuant to sections 502, 506, 510, 541, 542, 543, 544, 545, 547 through
551 and 553 of the Bankruptcy Code. Bankruptcy Court approval for settlement of
any claims or causes of action
50
and other rights brought by the Debtors or the Plan Administrator shall not be
required except as herein provided. Any settlement of any causes of action and
other rights involving an original cause of action or other right equal to or in
excess of $250,000 shall be subject to the approval of the Bankruptcy Court. Any
settlement of any causes of action or other rights involving an original cause
of action or other right in excess of $25,000 but less than $250,000 shall also
be subject to the approval of the Bankruptcy Court if the Plan Administrator
receives a written objection (which objection is not consensually resolved)
within ten (10) Business Days of service of written notice of the proposed
settlement to the Reconstituted Committee and MARAD.
9.2 OBJECTIONS TO CLAIMS. Subject to applicable law, from and after the
Effective Date, the Plan Administrator shall have the authority to File, settle,
compromise, withdraw, arbitrate or litigate to judgment objections to Claims:
(a) pursuant to applicable procedures established by the Bankruptcy Code, the
Bankruptcy Rules and this Plan; and (b) subject to the oversight authority
granted to the Reconstituted Committee under this Plan. Except with respect to
Administrative Claims and Claims for rejection damages, no deadlines by which
objections to Claims must be Filed have been established in these Chapter 11
Cases.
ARTICLE 10
DISTRIBUTIONS
10.1 NO DUPLICATE DISTRIBUTIONS. Unless expressly provided in the Plan,
to the extent more than one Debtor is liable for any Claim, such Claim shall be
considered a single Claim and entitled only to the payment provided therefor
under the applicable provisions of the Plan.
10.2 DISTRIBUTIONS BY THE DEBTORS. Distributions under this Plan shall
be made by the Plan Administrator. The Plan Administrator may employ or contract
with other entities to
51
assist in or make the distributions required by the Plan without further order
of the Bankruptcy Court. Distributions to any holder of an Allowed Claim shall
be allocated first to the principal portion of any such Allowed Claim, and, only
after the principal portion of any such Allowed Claim is satisfied in full, to
any portion of such Allowed Claim comprising interest (but solely to the extent
that interest is an allowable portion of such Allowed Claim pursuant to this
Plan or otherwise). All payments shall be made in accordance with the priorities
established in the Bankruptcy Code.
10.3 DELIVERY OF DISTRIBUTIONS IN GENERAL. Distributions to holders of
Allowed Claims shall be made: (a) at the addresses set forth in the proofs of
Claim Filed by such holders; (b) at the addresses set forth in any written
notices of address change delivered to the Plan Administrator after the date on
which any related proof of Claim was Filed; or (c) at the addresses reflected in
the Schedules relating to the applicable Allowed Claim if no proof of Claim has
been Filed and the Plan Administrator has not received a written notice of a
change of address.
10.4 CASH PAYMENTS. Cash payments to be made pursuant to the Plan shall
be made by checks drawn on a domestic bank or by wire transfer from a domestic
bank, at the option of the Debtors.
10.5 INTEREST ON CLAIMS. Unless otherwise specifically provided for in
this Plan or the Confirmation Order, or required by applicable bankruptcy law,
postpetition interest shall not accrue or be paid on Claims, and no holder of a
Claim shall be entitled to interest accruing on or after the Petition Date on
any Claim. Interest shall not accrue or be paid upon any Disputed Claim in
respect of the period from the Petition Date to the date a Final Distribution is
made thereon if and after such Disputed Claim becomes an Allowed Claim.
10.6 NO DE MINIMUS DISTRIBUTIONS. Other than in the Final Distribution,
no payment of Cash in an amount of less than $50.00 shall be made on account of
any Allowed
52
Claim. Such undistributed amount will instead be made part of the Available Cash
of the applicable Debtor for use in accordance with this Plan.
10.7 FACE AMOUNT. Unless otherwise expressly set forth herein with
respect to a specific Claim or Class of Claims, for the purpose of the
provisions of this Article, the "Face Amount" of a Disputed Claim means the
amount set forth on the proof of Claim unless the Disputed Claim has been
estimated for distribution purposes or, in the alternative, if no proof of Claim
has been timely Filed or deemed Filed, zero.
10.8 UNCLAIMED DISTRIBUTIONS. If the distribution check to any holder
of an Allowed Claim is not cashed within sixty (60) days after it is sent out by
the Plan Administrator, the holder of such Allowed Claim shall have such Claim
discharged and shall be forever barred from asserting such Claim against the
Debtors or their property. In such cases, any Cash held for distribution on
account of such Claim shall become the property of the Debtors' Estates, shall,
if applicable, be returned to the Plan Administrator as part of Available Cash
of the applicable Debtor and shall be distributed by the applicable Debtor in
accordance with the terms of this Plan.
10.9 EFFECTIVE DATE DISTRIBUTIONS. On the Effective Date, or as soon
thereafter as practicable, the holders of Allowed Administrative Claims, Allowed
Priority Tax Claims, Allowed Professional Claims and Allowed Claims in Classes 1
A, IB, 1C, ID, IE, 3, 4, 5 and 6A, shall receive Cash equal to the distributions
for each respective Class as set forth in the Plan or, in the case of the
holders of Allowed Claims in Classes 3 and 4, receive their collateral pursuant
to Sections 5.7 and 5.8 of the Plan. In satisfaction of its Class 2 Claims,
MARAD shall retain the MARAD Notes.
10.10 SUPPLEMENTAL DISTRIBUTIONS. Unless otherwise provided in the
Plan, to the extent any Debtor has Available Cash subsequent to the Effective
Date, such Debtor shall, on a Subsequent Distribution Date, distribute such
Available Cash to the holders of Claims entitled
53
thereto that were Allowed on the Effective Date or subsequently have become
Allowed on or before the Subsequent Distribution Date (each, a "Supplemental
Distribution"). Each Supplemental Distribution will reduce the Disputed Claims
Reserve, calculated based upon, following resolution of all disputes and
Allowance of any previously Disputed Claim, the reduction of the reserve by the
amount previously allocated to the Disputed Claim Reserve on account of the
Disputed Claim, as calculated prior to the date of the Supplemental
Distribution.
10.11 FINAL DISTRIBUTIONS. Each of the Debtors shall, on the Final
Distribution Date, distribute all Available Cash to the holders of Allowed
Claims against such Debtor entitled thereto in accordance with the priorities
and restrictions set forth herein.
10.12 DISPUTED CLAIMS RESERVE. To the extent there exist as of the
Effective Date Disputed Claims in any Class, the Debtors shall reserve from any
distribution of their Estate Assets Cash in an amount equal to the Pro Rata
portion of such distribution to which such Disputed Claim would be entitled if
Allowed in the amount asserted by the holder of such Disputed Claim, as set
forth in the definition of Disputed Claim Reserve. To the extent that any such
Disputed Claim becomes an Allowed Claim, such reserved Cash shall be distributed
to the holder of the Allowed Claim in a manner and amount consistent with the
treatment of Allowed Claims in that Class, with any surplus Cash becoming
generally available for use by the Debtors in accordance with the terms of this
Plan.
10.13 CLAIMS RESOLUTION AUTHORITY. The Debtors shall review Claims that
are not Allowed Claims and shall resolve such Claims through the claims
objection process in the Bankruptcy Court or by compromise. Bankruptcy Court
approval for compromise of a Claim shall not be required except as herein
provided. Any compromise of a Claim in a disputed amount which is to be allowed
in an amount equal to or in excess of $100,000 shall be subject to the approval
of the Bankruptcy Court but such compromise shall not require notice to any
party other than to the members of the Reconstituted Committee, to MARAD and to
the U.S. Trustee,
54
and shall not require a hearing, unless the Bankruptcy Court orders otherwise.
Any compromise of a Disputed Claim with respect to which the amount to be
allowed is in excess of $50,000 but less than $100,000 shall also be subject to
Bankruptcy Court approval if the proposed compromise is objected to (which
objection is not resolved consensually) by the Reconstituted Committee, MARAD or
the U.S. Trustee, within ten (10) business days of their receipt of such notice.
The Debtors, in their sole discretion, may submit resolutions of Claims in
disputed amounts of $50,000 and less to the Bankruptcy Court for its approval,
but they are fully authorized to resolve such Claims without Bankruptcy Court
approval.
10.14 COMPLIANCE WITH TAX REQUIREMENTS. In connection with the Plan and
the distributions made in accordance thereto, to the extent applicable, the
Debtors shall comply with all tax withholding and reporting requirements imposed
on them by any governmental unit and all distributions pursuant to the Plan
shall be subject to such withholding and reporting requirements. The Plan
Administrator shall be authorized to take any and all actions that may be
necessary or appropriate to comply with such withholding and reporting
requirements.
10.15 DISTRIBUTIONS BY THE INDENTURE TRUSTEE. Distributions under this
Plan on account of Allowed Claims arising from or out of the 7% Convertible
Junior Subordinated Debentures and the AMCV Capital Trust I Convertible
Preferred Securities shall be made to the Indenture Trustee, as appropriate, as
disbursing agent for such Allowed Claims, for further distribution to holders of
such Allowed Claims. Any such further distributions shall be made by the
Indenture Trustee pursuant to the 7% Convertible Junior Subordinated Debentures
and the AMCV Capital Trust I Convertible Preferred Securities, respectively, and
the Plan (i) first, to the Indenture Trustee for application to any unpaid fees,
compensation, expenses, (including the Indenture Trustee's professional fees and
expenses) disbursements and advances to the extent provided in the applicable
indenture; and (ii) thereafter, on account of the Allowed Claims
55
arising from or out of the 7% Convertible Junior Subordinated Debentures and the
AMCV Capital Trust I Convertible Preferred Securities, as the case may be.
10.16 RECORD DATE FOR DISTRIBUTIONS TO THE INDENTURE TRUSTEE. At the
close of business on the Distribution Record Date, the transfer records for the
7% Convertible Junior Subordinated Debentures and the AMCV Capital Trust I
Convertible Preferred Securities shall be closed, and there shall be no further
changes in record holders of the 7% Convertible Junior Subordinated Debentures
and the AMCV Capital Trust I Convertible Preferred Securities. AMCV, the Plan
Administrator and the Indenture Trustee shall have no obligation to recognize
any transfer of Claims arising from or out of the 7% Convertible Junior
Subordinated Debentures or the AMCV Capital Trust I Convertible Preferred
Securities occurring after the Distribution Record Date and shall be entitled to
recognize and deal for all purposes hereunder with only those record holders as
of the close of business on the Distribution Record Date.
ARTICLE 11
RELEASE OF LIENS
Except as otherwise provided in this Plan or any contract, instrument,
release, indenture or other agreement or document created in connection with
this Plan, all liens, encumbrances and other security interests against Assets
of the Debtors' Estates shall be deemed fully and completely released and
discharged and all of the Assets of the Debtors' Estates shall be deemed free
and clear of any such liens, claims and encumbrances on and after the Effective
Date.
56
ARTICLE 12
CONDITIONS TO THE EFFECTIVE DATE
12.1 CONDITIONS TO EFFECTIVE DATE. The Plan shall not become effective
and the Effective Date shall not occur unless and until:
12.1.1 The Bankruptcy Court shall have entered the
Confirmation Order in form and substance satisfactory to the Debtors
and the Creditors' Committee;
12.1.2 No stay of the Confirmation Order shall be in effect
at the time the other conditions set forth in this Section 12.1 are
satisfied, or, if permitted, waived;
12.1.3 All documents, instruments and agreements, in form and
substance satisfactory to the Debtors, provided for under this Plan or
necessary to implement this Plan shall have been executed and
delivered by the parties thereto, unless such execution or delivery
has been waived by the parties benefited thereby; and
12.1.4 There shall exist sufficient Available Cash of the
Selling Debtors to pay all Allowed Administrative Claims, Allowed
Professional Claims, and Allowed Priority Tax Claims.
12.2 TERMINATION OF PLAN FOR FAILURE TO BECOME EFFECTIVE. If the
Effective Date shall not have occurred on or prior to the date that is
forty-five (45) days after the Confirmation Date, then this Plan shall terminate
and be of no further force or effect unless the provisions of this Section are
waived in writing by the Debtors and the Creditors' Committee.
12.3 WAIVER OF CONDITIONS. The Debtors and the Creditors' Committee, in
their sole discretion, may waive Section 12.2 of this Plan.
12.4 NOTICE OF EFFECTIVE DATE. On the Effective Date, or as soon
thereafter as is practicable, the Debtors shall file with the Bankruptcy Court a
"Notice of Effective Date" in a form reasonably acceptable to the Debtors in
their sole discretion, which notice shall constitute appropriate and adequate
notice that this Plan has become effective, provided, however, that the Debtors
shall have no obligation to notify any Person other than the Creditors'
Committee of
57
such fact. The Plan shall be deemed to be effective as of 12:01 a.m., prevailing
Eastern time, on the date of such filing. A courtesy copy of the Notice of
Effective Date may be sent by first class mail, postage prepaid (or at the
Debtors' option, by courier or facsimile) to those Persons who have filed with
the Bankruptcy Court requests for notices pursuant to Bankruptcy Rule 2002.
ARTICLE 13
EFFECT OF CONFIRMATION
13.1 JURISDICTION OF COURT. Until the Effective Date, the Bankruptcy
Court shall retain jurisdiction over the Debtors, their Assets and their
Estates. Thereafter, jurisdiction of the Bankruptcy Court over the Debtors,
their Assets and their Estates shall be limited to the subject matters set forth
in Article 14 of this Plan.
13.2 BINDING EFFECT. Except as otherwise provided in section 1141 (d)
of the Bankruptcy Code, on and after the Confirmation Date, the provisions of
this Plan shall bind any holder of a Claim against or Interest in the Debtors
and such holder's respective successors and assigns, whether or not the Claim or
Interest of such holder is Impaired under this Plan and whether or not such
holder has accepted the Plan.
13.3 STAY. Unless otherwise provided herein, all injunctions or stays
provided for in the Chapter 11 Cases of the Debtors pursuant to section 105 or
362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation
Date, shall remain in full force and effect until the Final Distribution Date.
13.4 EXCULPATION. Except as otherwise specifically provided in this
Plan, neither the Debtors nor the Creditors' Committee (solely with respect to
its conduct as a committee and not with respect to the actions of its members as
individual creditors), nor any of such parties' respective present members (with
respect to members of the Creditors' Committee, solely with respect to each
member's conduct in furtherance of its, his, or her duties as a
58
member of the Creditors' Committee, and not with respect to the actions of such
members as individual creditors), officers, directors, employees,
representatives, advisors, attorneys, financial advisors, investment bankers or
agents or any of such parties' successors and assigns, shall have or incur, and
are hereby released from, any Claim, obligation, cause of action or liability to
one another or to any holder of a Claim or an Interest, or any other party in
interest, or any of their respective officers, directors, members and/or
enrollees, employees, representatives, advisors, attorneys, financial advisors,
investment bankers, agents, or Affiliates, or any of their successors or
assigns, for any act or omission in connection with, relating to, or arising out
of, the Chapter 11 Cases, the pursuit of Confirmation of this Plan, the
consummation of this Plan, or the administration of this Plan or the property to
be distributed under this Plan, except for their willful misconduct or gross
negligence, and in all respects shall be entitled to reasonably rely upon the
advice of counsel with respect to their duties and responsibilities under this
Plan.
13.5 INJUNCTION. Except as otherwise specifically provided in the Plan
or the Confirmation Order, all Persons who have held, hold or may hold claims,
rights, causes of action, liabilities or any equity interests based upon any act
or omission, transaction or other activity of any kind or nature that occurred
prior to the Effective Date, other than as expressly provided in this Plan or
the Confirmation Order, regardless of the filing, lack of filing, allowance or
disallowance of such a Claim or Interest and regardless of whether such Person
has voted to accept the Plan and any successors, assigns or representatives of
the foregoing shall be precluded and permanently enjoined on and after the
Effective Date from (a) commencing or continuing in any manner any Claim, action
or other proceeding of any kind with respect to any Claim, Interest or any other
right or Claim against the Debtors, or any assets of the Debtors which they
possessed or may possess prior to the Effective Date, (b) the enforcement,
attachment, collection or recovery by any manner or means of any judgment,
59
award, decree or order with respect to any Claim, Interest or any other right or
Claim against the Debtors, or any Assets of the Debtors which they possessed or
may possess prior to the Effective Date, (c) creating, perfecting or enforcing
any encumbrance of any kind with respect to any Claim, Interest or any other
right or Claim against the Debtors, the Debtor Releasees, or any Assets of the
Debtors which they possessed or may possess prior to the Effective Date, and (d)
asserting any Claims that are released hereby.
13.6 RELEASES BY DEBTORS. Except as expressly provided in this Plan,
upon the Effective Date, the Debtors hereby (i) remise, acquit, waive, release
and forever discharge each of the Debtor Releasees, and (ii) covenant and agree
never to institute or cause to be instituted any suit or other form of action or
proceeding of any kind or nature whatsoever against any of the Debtor Releasees
based upon any claims, demands, indebtedness, agreements, promises, causes of
action, obligations, damages or liabilities of any nature whatsoever, in law or
in equity, whether or not known, suspected or claimed, that the Debtors or their
Estates ever had, claimed to have, has, or may have or claim to have against the
Debtor Releasees, or any of them, by reason of any matter, cause, thing, act or
omission of the Debtor Releasees, or any of them, in each case related to the
Debtors. All Claims so waived and released shall be waived and released for all
purposes.
13.7 LIMITATION OF LIABILITY. Except as expressly set forth in the
Plan, following the Effective Date, none of the Debtors, the Plan Administrator,
the Creditors' Committee, the Reconstituted Committee or any of their respective
members, officers, directors, employees, advisors, attorneys, professionals or
agents shall have or incur any liability to any holder of a Claim or Interest
for any act or omission in connection with, related to, or arising out of, the
Chapter 11 Cases, the pursuit of Confirmation of the Plan, the consummation of
the Plan or any contract, instrument, release or other agreement or document
created in connection
60
with this Plan, or the administration of the Plan or the property to be
distributed under the Plan, except for willful misconduct or gross negligence.
ARTICLE 14
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence
of the Effective Date, the Bankruptcy Court shall retain such jurisdiction over
the Chapter 11 Cases of the Debtors after the Effective Date as is legally
permissible, including jurisdiction to:
(a) Allow, disallow, determine, liquidate, classify, estimate
or establish the priority or secured or unsecured status of any Claim or
Interest, including the resolution of any request for payment of any
Administrative Claim and the resolution of any and all objections to the
allowance or priority of Claims, Interests and Administrative Claims;
(b) Hear and determine any and all causes of action against
any Person and rights of the Debtors that arose before or after the Petition
Date, including but not limited to the rights and powers of a trustee and
debtor-in-possession, against any Person whatsoever, including but not limited
to all avoidance powers granted to the Debtors under the Bankruptcy Code and all
causes of action and remedies granted pursuant to sections 502, 506, 510, 541,
542, 543, 544, 545, 547 through 551 and 553 of the Bankruptcy Code;
(c) Grant or deny any applications for allowance of
compensation for professionals authorized pursuant to the Bankruptcy Code or the
Plan, for periods ending on or before the Effective Date;
(d) Resolve any matters relating to the assumption, assumption
and assignment or rejection of any executory contract or unexpired lease to
which any Debtor is a party or with respect to which any of the Debtors may be
liable, including without limitation the
61
determination of whether such contract is executory for the purposes of section
365 of the Bankruptcy Code, and hear, determine and, if necessary, liquidate any
Claims arising therefrom;
(e) Enter orders approving the Debtors' post-Confirmation sale
or other disposition of Assets under section 363 of the Bankruptcy Code;
(f) Ensure that distributions to holders of Allowed Claims are
accomplished pursuant to the provisions of the Plan;
(g) Decide or resolve any motions, adversary proceedings,
contested or litigated matters and any other matters and grant or deny any
applications involving any Debtor that may be pending in the Chapter 11 Cases on
the Effective Date;
(h) Hear and determine matters concerning state, local or
federal taxes in accordance with sections 346, 505 or 1146 of the Bankruptcy
Code;
(i) Decide or resolve any disputes with DNPS in any way
relating to the Asset Sale;
(j) Enter such orders as may be necessary or appropriate to
implement or consummate the provisions of the Plan and the Confirmation Order;
(k) Hear and determine any matters concerning the enforcement
of the provisions of Article 13 of this Plan and any other releases or
injunctions contemplated by this Plan;
(1) Resolve any cases, controversies, suits or disputes that
may arise in connection with the consummation, interpretation or enforcement of
the Plan or the Confirmation Order;
(m) Permit the Debtors, to the extent authorized pursuant to
section 1127 of the Bankruptcy Code, to modify the Plan or any agreement or
document created in connection with the Plan, or remedy any defect or omission
or reconcile any inconsistency in the Plan or any agreement or document created
in connection with the Plan;
62
(n) Issue injunctions, enter and implement other orders or
take such other actions as may be necessary or appropriate to restrain
interference by any entity with consummation, implementation or enforcement of
the Plan or the Confirmation Order;
(o) Enforce any injunctions entered in connection with or
relating to the Plan or the Confirmation Order;
(p) Enter and enforce such orders as are necessary or
appropriate if the Confirmation Order is for any reason modified, stayed,
reversed, revoked or vacated, or distributions pursuant to the Plan are enjoined
or stayed;
(q) Set or extend deadlines by which objected to Claims must
be Filed;
(r) Determine any other matters that may arise in connection
with or relating to the Plan or any agreement or the Confirmation Order;
(s) Enter any orders in aid of prior orders of the Bankruptcy
Court;
(t) Hear and determine any request of the Reconstituted
Committee for authority and approval to take any actions or enforce any remedies
provided to the Reconstituted Committee pursuant to any provision of this Plan;
and (u) Enter an order concluding the Chapter 11 Cases.
ARTICLE 15
ACCEPTANCE OR REJECTION OF THE PLAN
15.1 PERSONS ENTITLED TO VOTE. Class 1A, Class IB, Class 1C, Class ID,
Class IE, Class 3 and Class 4 are not Impaired and pursuant to section 1126(f)
of the Bankruptcy Code is deemed to have accepted the Plan. Votes from holders
of Class 1 A, Class IB, Class 1C, Class ID, Class IE, Class 3 and Class 4 Claims
will not be solicited. Classes 2, 5, 6A, 6B, 6C, 6D and 6E are Impaired but will
receive a distribution under the Plan. Votes from holders of Class 2, 5, 6A, 6B,
6C, 6D and 6E Claims will be solicited. Class 7 Claims and Class 8 Interests are
63
Impaired and are not entitled to distributions pursuant to the Plan. Class 7
Claims and Class 8 Interests will be cancelled pursuant to the Plan and holders
of such Claims are deemed pursuant to section 1126(g) of the Bankruptcy Code to
have rejected the Plan. Votes from holders of Class 7 Claims and Class 8
Interests will not be solicited.
15.2 ACCEPTANCE BY IMPAIRED CLASSES. An Impaired Class of Claims shall
have accepted the Plan if (i) the holders (other than any holder designated
under section 1126(e) of the Bankruptcy Code) of at least two-thirds in amount
of the Allowed Claims actually voting in such Class have voted to accept the
Plan and (ii) the holders (other than any holder designated under section
1126(e) of the Bankruptcy Code) of at least one-half in number of the Allowed
Claims actually voting in such Class have voted to accept the Plan.
15.3 REQUEST FOR NON-CONSENSUAL CONFIRMATION. Class 7 and Class 8
receive no distribution on account of their Claims and Interests and are
therefore deemed to have rejected the Plan. The Debtors therefore request that
the Court confirm the Plan under the cramdown provisions of section 1129(b) of
the Bankruptcy Code with respect to Class 7 and Class 8, as well as with respect
to any other Class that does not vote to accept the Plan.
ARTICLE 16
MISCELLANEOUS PROVISIONS
16.1 SUBSTANTIVE CONSOLIDATION OF CLAIMS AGAINST DEBTORS. The Plan is
premised on the substantive consolidation into separate groups of (a) the
Selling Debtors, (b) the Coastal Debtors and (c) the Independence Debtors,
respectively, in each case with respect to the treatment of all Claims except
for Administrative Claims, Priority Tax Claims and Secured Claims in Classes 2,
3 and 4, as provided below. The Plan does not contemplate substantive
consolidation of the Debtors with respect to the Administrative Claims, Priority
Tax Claims or Secured Claims against or Interests in the Debtors, which shall be
deemed to apply separately
64
with respect to each Plan proposed by each Debtor (provided, however, that,
pursuant to the Settlement, the Selling Debtors have agreed to pay all
Administrative Expenses and Priority Tax Claims of all of the Debtors). This
Plan shall serve as a request by the Debtors, in lieu of a separate motion, to
the Bankruptcy Court, that it grant substantive consolidation as set forth
above.
On the Effective Date, all Class 7 Intercompany Claims will be
cancelled. After giving effect to the Settlement and to the transfers set forth
in the Plan to the holders of Administrative Claims, Professional Claims,
Allowed Priority Tax Claims, Class 2 Claims, Class 3 Claims and Class 4 Claims,
(a) all Assets and liabilities of the Selling Debtors will be merged or treated
as though they were merged, (b) all guarantees of any Selling Debtor of the
obligations of any other Selling Debtor and any joint or several liability of
any of the Selling Debtors shall be eliminated, and (c) except with respect to
Secured Claims, each and every Claim against any of the Selling Debtors shall be
deemed filed against the consolidated Selling Debtors, and all Claims filed
against more than one of the Selling Debtors for the same liability shall be
deemed one Claim against and obligation of the consolidated Selling Debtors.
On the Effective Date, all Class 7 Intercompany Claims will be
cancelled. After giving effect to the Settlement and to the transfers set forth
in the Plan to the holders of Administrative Claims, Professional Claims,
Allowed Priority Tax Claims, Class 2 Claims, Class 3 Claims and Class 4 Claims,
(a) all Assets and liabilities of the Coastal Debtors will be merged or treated
as though they were merged, (b) all guarantees of any Coastal Debtor of the
obligations of any other Coastal Debtor and any joint or several liability of
any of the Coastal Debtors shall be eliminated, and (c) except with respect to
Secured Claims, each and every Claim against any of the Coastal Debtors shall be
deemed filed against the consolidated Coastal Debtors, and all Claims filed
against more than one of the Coastal Debtors for the same liability shall be
deemed one Claim against and obligation of the consolidated Coastal Debtors.
65
On the Effective Date, all Class 7 Intercompany Claims will be
cancelled. After giving effect to the Settlement and to the transfers set forth
in the Plan to the holders of Administrative Claims, Professional Claims,
Allowed Priority Tax Claims, Class 2 Claims, Class 3 Claims and Class 4 Claims,
(a) all Assets and liabilities of the Independence Debtors will be merged or
treated as though they were merged, (b) all guarantees of any Independence of
the obligations of any other Independence Debtor and any joint or several
liability of any of the Independence Debtors shall be eliminated, and (c) except
with respect to Secured Claims, each and every Claim against any of the
Independence Debtors shall be deemed filed against the consolidated Independence
Debtors, and all Claims filed against more than one of the Independence Debtors
for the same liability shall be deemed one Claim against and obligation of the
consolidated Independence Debtors.
16.2 MODIFICATION OF THE PLAN. Subject to the restrictions on Plan
modifications set forth in section 1127 of the Bankruptcy Code, the Debtors
reserve the right to alter, amend or modify the Plan before its substantial
consummation.
16.3 REVOCATION OF THE PLAN. The Debtors reserve the right to revoke or
withdraw the Plan prior to the Confirmation Date. If the Debtors revoke or
withdraw the Plan, or if Confirmation does not occur or if the Plan does not
become effective, then the Plan shall be null and void, and nothing contained in
the Plan shall: (a) constitute a waiver or release of any Claims by or against,
or any Interests in, the Debtors; (b) constitute an admission of any fact or
legal conclusion by the Debtors or any other Entity; or (c) prejudice in any
manner the rights of the Debtors in any further proceedings involving the
Debtors.
16.4 GOVERNING LAW. Unless a rule of law or procedure is supplied by
(i) federal law (including the Bankruptcy Code and Bankruptcy Rules), or (ii) an
express choice of law provision in any agreement, contract, instrument or
document provided for, or executed in connection with, the Plan, the rights and
obligations arising under the Plan and any agreements,
66
contracts, documents and instruments executed in connection with the Plan shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without giving effect to the principles of conflict of laws
thereof.
16.5 No ADMISSIONS. Notwithstanding anything herein to the contrary,
nothing contained in the Plan shall be deemed as an admission by the Debtors
with respect to any matter set forth herein including, without limitation,
liability on any Claim or the propriety of any Claims classification.
16.6 SEVERABILITY OF PLAN PROVISIONS. If prior to Confirmation any term
or provision of the Plan that does not govern the treatment of Claims or
Interests is held by the Bankruptcy Court to be invalid, void or unenforceable,
the Bankruptcy Court shall have the power to alter and interpret such term or
provision to make it valid or enforceable to the maximum extent practicable,
consistent with the original purpose of the term or provision held to be
invalid, void or unenforceable, and such term or provision shall then be
applicable as altered or interpreted. Notwithstanding any such holding,
alteration or interpretation, the remainder of the terms and provisions of the
Plan shall remain in full force and effect and shall in no way be affected,
Impaired or invalidated by such holding, alteration or interpretation. The
Confirmation Order shall constitute a judicial determination and shall provide
that each term and provision of the Plan, as it may have been altered or
interpreted in accordance with the foregoing, is valid and enforceable pursuant
to its terms.
16.7 SUCCESSORS AND ASSIGNS. The rights, benefits and obligations of
any Entity named or referred to in the Plan shall be binding on, and shall inure
to the benefit of, any heir, executor, administrator, successor or assign of
such Entity.
16.8 EXEMPTION FROM CERTAIN TRANSFER TAXES. Pursuant to section 1146(c)
of the Bankruptcy Code, the issuance, transfer or exchange of any Security or
the making or delivery of any instrument of transfer under this Plan may not be
taxed under any law imposing a
67
stamp tax, use tax, sales tax or similar tax. Any sale of any Asset occurring
before, after or upon the Effective Date shall be deemed to be in furtherance of
this Plan.
16.9 PRESERVATION OF RIGHTS OF SETOFFS. The Debtors, may, but shall not
be required to, set off against any Claim, and the payments or other
distributions to be made pursuant to this Plan in respect of such Claim, claims
of any nature whatsoever that the Debtors may have against the holder of such
Claims; but neither the failure to do so nor the Allowance of any Claim
hereunder shall constitute a waiver or release by the Debtors of any such claim
that the Debtors may have against such holder.
16.10 SATURDAY, SUNDAY OR LEGAL HOLIDAY. If any payment or act under
the Plan is required to be made or performed on a date that is not a Business
Day, then the making of such payment or the performance of such act may be
completed on the next succeeding Business Day, but shall be deemed to have been
completed as of the required date.
68
Dated: January 7, 2003 American Classic Voyages Co.
(for itself and on behalf of the
other Debtors)
/s/ Jordan B. Allen
-------------------------------------
Jordan B. Allen
Executive Vice President and General
Counsel American Classic Voyages Co.
69
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS, INTERPRETATION AND RULES OF CONSTRUCTIONS.......................................................... 4
A. Scope of Definitions................................................................................................. 4
B. Definitions.......................................................................................................... 4
1.1 Administrative Claim........................................................................................ 4
1.2 Administrative Claims Bar Date.............................................................................. 5
1.3 Allowed [ ] Claim or Allowed [ ] Interest............................................................... 5
1.4 Allowed Claim or Allowed Interest........................................................................... 5
1.5 AMCV........................................................................................................ 5
1.6 AMCV Settlement Cash Amount................................................................................. 6
1.7 AMCV Settlement Avoidance Action Percentage................................................................. 6
1.8 Assets...................................................................................................... 6
1.9 Asset Sale.................................................................................................. 6
1.10 Assumed MARAD Notes......................................................................................... 6
1.11 Available Cash.............................................................................................. 6
1.12 Avoidance Actions........................................................................................... 7
1.13 Bankruptcy Code............................................................................................. 7
1.14 Bankruptcy Court............................................................................................ 7
1.15 Bankruptcy Rules............................................................................................ 7
1.16 Bar Date.................................................................................................... 7
1.17 Business Day................................................................................................ 7
1.18 Cash........................................................................................................ 7
1.19 Chapter 11 Cases............................................................................................ 8
1.20 Claim....................................................................................................... 8
1.21 Class....................................................................................................... 8
1.22 Coastal Debtor(s)........................................................................................... 8
1.23 Coastal Debtors Settlement Cash Amount...................................................................... 8
1.24 Coastal Debtors Settlement Avoidance Action Percentage...................................................... 8
1.25 Columbia Queen Debtor....................................................................................... 8
1.26 Columbia Queen Settlement Cash Amount....................................................................... 8
1.27 Columbia Queen Settlement Avoidance Action Percentage....................................................... 9
1.28 Confirmation................................................................................................ 9
1.29 Confirmation Date........................................................................................... 9
1.30 Confirmation Hearing........................................................................................ 9
1.31 Confirmation Order.......................................................................................... 9
1.32 Convenience Claims.......................................................................................... 9
1.33 Creditor(s)................................................................................................. 9
1.34 Creditors' Committee........................................................................................ 9
1.35 Customer Deposit Claims..................................................................................... 9
1.36 Debtor(s)................................................................................................... 10
1.37 Debtor Releasees............................................................................................ 10
1.38 Deficiency Claims........................................................................................... 10
1.39 Disclosure Statement........................................................................................ 10
1.40 Disclosure Statement Hearing................................................................................ 11
1.41 Disputed Claim or Disputed Interest......................................................................... 11
1.42 Disputed Claims Reserve..................................................................................... 11
1.43 Distribution Record Date.................................................................................... 11
1.44 DNPS........................................................................................................ 11
1.45 Effective Date.............................................................................................. 11
1.46 Effective Date Distribution................................................................................. 12
1.47 Entity...................................................................................................... 12
1.48 Estates..................................................................................................... 12
1.49 Examiner.................................................................................................... 12
1.50 Face Amount................................................................................................. 12
1.51 Fee Order................................................................................................... 12
1.52 File or Filed............................................................................................... 12
1.53 Final Distribution.......................................................................................... 12
1.54 Final Distribution Date..................................................................................... 12
1.55 Final Order................................................................................................. 12
1.56 General Secured Claims...................................................................................... 13
1.57 General Unsecured Claims.................................................................................... 13
1.58 Impaired.................................................................................................... 13
1.59 Indemnification Claims...................................................................................... 13
1.60 Indemnification Reserve..................................................................................... 13
1.61 Indenture Trustee........................................................................................... 14
1.62 Independence Debtors........................................................................................ 14
1.63 Independence Debtors Settlement Cash Amount................................................................. 14
1.64 Independence Debtors Settlement Avoidance Action Percentage................................................. 14
1.65 Intercompany Claims......................................................................................... 14
1.66 Interest.................................................................................................... 14
1.67 Lien........................................................................................................ 15
1.68 MARAD....................................................................................................... 15
1.69 MARAD AQ Deficiency Claim................................................................................... 15
1.70 MARAD Notes................................................................................................. 15
1.71 MARAD Stipulation........................................................................................... 15
1.72 New MARAD Note.............................................................................................. 16
1.73 Operating Reserve........................................................................................... 16
1.74 Other AQ Secured Claims..................................................................................... 16
1.75 Other Deficiency Claims..................................................................................... 16
1.76 Other Priority Claim........................................................................................ 16
1.77 Person...................................................................................................... 16
1.78 Petition Date............................................................................................... 17
1.79 Plan........................................................................................................ 17
1.80 Plan Administrator.......................................................................................... 17
1.81 Possessory Lienholder Claims................................................................................ 17
1.82 Priority Tax Claim.......................................................................................... 17
1.83 Professional Claim.......................................................................................... 17
1.84 ProRata 17
1.85 Reconstituted Committee..................................................................................... 18
1.86 Scheduled................................................................................................... 18
1.87 Schedules................................................................................................... 18
1.88 Secured Claim............................................................................................... 18
1.89 Security.................................................................................................... 18
1.90 Selling Debtor(s)........................................................................................... 18
1.91 Settlement.................................................................................................. 18
1.92 Subsequent Distribution Date................................................................................ 18
1.93 Supplemental Distribution................................................................................... 19
1.94 TDQS........................................................................................................ 19
1.95 Taxes....................................................................................................... 19
1.96 Unsecured Claim............................................................................................. 19
C. Rules of Interpretation.............................................................................................. 19
D. Computation of Time.................................................................................................. 21
ARTICLE 2 TREATMENT OF UNCLASSIFIED, UNIMPAIRED CLAIMS.................................................................... 21
2.1 Administrative Claims....................................................................................... 21
2.2 Statutory Fees.............................................................................................. 21
2.3 Professional Claims......................................................................................... 21
2.4 Priority Tax Claims......................................................................................... 22
2.5 Deadline for Filing Administrative Claims................................................................... 22
ARTICLE 3 CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND INTERESTS.................................................. 24
A. General.............................................................................................................. 24
B. Classification....................................................................................................... 24
3.1 Class 1A: Selling Debtors Other Priority Claims............................................................. 25
3.2 Class IB: Coastal Debtors Other Priority Claims............................................................. 25
3.3 Class 1C: Independence Debtors Other Priority Claims........................................................ 25
3.4 Class ID: Columbia Queen Other Priority Claims.............................................................. 25
3.5 Class IE: AMCV Other Priority Claims........................................................................ 25
3.6 Class 2: MARAD AQ Secured Claims............................................................................ 25
3.7 Class 3: Other AQ Secured Claims............................................................................ 25
3.8 Class 4: General Secured Claims............................................................................. 25
3.9 Class 5: Convenience Claims................................................................................. 25
3.10 Class 6A: Selling Debtors General Unsecured Claims.......................................................... 26
3.11 Class 6B: Coastal Debtors General Unsecured Claims.......................................................... 26
3.12 Class 6C: Independence Debtors General Unsecured Claims..................................................... 26
3.13 Class 6D: Columbia Queen General Unsecured Claims........................................................... 26
3.14 Class 6E: AMCV General Unsecured Claims..................................................................... 26
3.15 Class 7: Intercompany Claims................................................................................ 26
3.16 Class 8: Interests.......................................................................................... 26
ARTICLE 4 IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS IMPAIRED AND NOT IMPAIRED BY THE PLAN......................... 26
4.1 Unimpaired Classes of Claims and Interests.................................................................. 26
4.2 Impaired Classes of Claims and Interests.................................................................... 26
ARTICLE 5 PROVISIONS FOR THE TREATMENT OF CLAIMS AND INTERESTS............................................................ 27
5.1 Class 1A (Selling Debtors Other Priority Claims)............................................................ 27
5.2 Class IB: (Coastal Debtors Other Priority Claims)........................................................... 27
5.3 Class 1C: (Independence Debtors Other Priority Claims)...................................................... 28
5.4 Class ID: (Columbia Queen Other Priority Claims)............................................................ 28
5.5 Class IE: (AMCV Other Priority Claims)...................................................................... 29
5.6 Class 2: (MARAD AQ Secured Claims).......................................................................... 30
5.7 Class 3 (Other AQ Secured Claims)........................................................................... 30
5.8 Class 4 (General Secured Claims)............................................................................ 31
5.9 Class 5 (Convenience Claims)................................................................................ 32
5.10 Class 6A (Selling Debtors General Unsecured Claims)......................................................... 32
5.11 Class 6B (Coastal Debtors General Unsecured Claims)......................................................... 33
5.12 Class 6C (Independence Debtors General Unsecured Claims).................................................... 33
5.13 Class 6D (Columbia Queen General Unsecured Claims).......................................................... 34
5.14 Class 6E (AMCV General Unsecured Claims).................................................................... 34
5.15 Class 7 (Intercompany Claims)............................................................................... 35
5.16 Class 8 (Interests)......................................................................................... 35
ARTICLE 6 TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 35
6.1 Assumption; Assignment...................................................................................... 35
6.2 Cure Payments; Assurance of Performance..................................................................... 36
6.3 Objections to Assumption of Executory Contracts and Unexpired Leases........................................ 36
6.4 Rejection................................................................................................... 38
6.5 Approval of Rejection; Rejection Damages Claims Bar Date.................................................... 38
ARTICLE 7 MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN.............................................................. 38
7.1 Engagement of Plan Administrator............................................................................ 38
7.2 Continuing Existence........................................................................................ 39
7.3 Post-Effective Date Oversight of the Debtors................................................................ 40
7.4 Plan Administrator Compensation............................................................................. 41
7.5 Plan Administrator and Reconstituted Committee Fiduciaries.................................................. 41
7.6 Cancellation of Instruments, Securities and Other Documentation............................................. 41
7.7 No Revesting of Assets...................................................................................... 42
7.8 Post-Confirmation Operations................................................................................ 42
7.9 Post-Confirmation Professional Fees and Expenses............................................................ 42
7.10 Post-Effective Date Reporting............................................................................... 43
7.11 Post-Effective Date Indemnification Claims and the Indemnification Reserve.................................. 43
7.12 Post-Confirmation Funding of Operations and Funding of Plan................................................. 44
7.13 Post-Confirmation Accounts.................................................................................. 44
7.14 Dissolution of the Debtors.................................................................................. 44
7.15 Closing of the Chapter 11 Cases............................................................................. 45
ARTICLE 8 SETTLEMENT...................................................................................................... 46
8.1 Intercompany Claims of AMCV against the Selling Debtors..................................................... 46
8.2 Intercompany Claims of the Coastal Debtors against the Selling Debtors...................................... 47
8.3 Intercompany Claims of the Independence Debtors against the Selling Debtors................................. 48
8.4 Intercompany Claims of the Columbia Queen Debtor against the Selling Debtors................................ 48
8.5 Priority Claims of m/s Patriot Customers against AMCV....................................................... 49
ARTICLE 9 POSTCONFIRMATION LITIGATION..................................................................................... 50
9.1 Retention and Enforcement of Causes in Action............................................................... 50
9.2 Objections to Claims........................................................................................ 51
ARTICLE 10 DISTRIBUTIONS.................................................................................................. 51
10.1 No Duplicate Distributions.................................................................................. 51
10.2 Distributions by the Debtors................................................................................ 51
10.3 Delivery of Distributions in General........................................................................ 52
10.4 Cash Payments............................................................................................... 52
10.5 Interest on Claims.......................................................................................... 52
10.6 No De Minimus Distributions................................................................................. 52
10.7 Face Amount................................................................................................. 53
10.8 Unclaimed Distributions..................................................................................... 53
10.9 Effective Date Distributions................................................................................ 53
10.10 Supplemental Distributions.................................................................................. 53
10.11 Final Distributions......................................................................................... 54
10.12 Disputed Claims Reserve..................................................................................... 54
10.13 Claims Resolution Authority................................................................................. 54
10.14 Compliance with Tax Requirements............................................................................ 55
10.15 Distributions by the Indenture Trustee...................................................................... 55
10.16 Record Date for Distributions to the Indenture Trustee...................................................... 56
ARTICLE 11 RELEASE OF LIENS................................................................................................ 56
ARTICLE 12 CONDITIONS TO THE EFFECTIVE DATE............................................................................... 57
12.1 Conditions to Effective Date................................................................................ 57
12.2 Termination of Plan for Failure To Become Effective......................................................... 57
12.3 Waiver of Conditions........................................................................................ 57
12.4 Notice of Effective Date.................................................................................... 57
ARTICLE 13 EFFECT OF CONFIRMATION......................................................................................... 58
13.1 Jurisdiction of Court....................................................................................... 58
13.2 Binding Effect.............................................................................................. 58
13.3 Stay 58
13.4 Exculpation................................................................................................. 58
13.5 Injunction.................................................................................................. 59
13.6 Releases by Debtors......................................................................................... 60
13.7 Limitation of Liability..................................................................................... 60
ARTICLE 14 RETENTION OF JURISDICTION...................................................................................... 61
ARTICLE 15 ACCEPTANCE OR REJECTION OF THE PLAN............................................................................ 63
15.1 Persons Entitled to Vote.................................................................................... 63
15.2 Acceptance by Impaired Classes.............................................................................. 64
15.3 Request for Non-Consensual Confirmation..................................................................... 64
ARTICLE 16 MISCELLANEOUS PROVISIONS...................................................................................... 64
16.1 Substantive Consolidation of Claims against Debtors......................................................... 64
16.2 Modification of the Plan.................................................................................... 66
16.3 Revocation of the Plan...................................................................................... 66
16.4 Governing Law............................................................................................... 66
16.5 No Admissions............................................................................................... 67
16.6 Severability of Plan Provisions............................................................................. 67
16.7 Successors and Assigns...................................................................................... 67
16.8 Exemption from Certain Transfer Taxes....................................................................... 67
16.9 Preservation of Rights of Setoffs........................................................................... 68
16.10 Saturday, Sunday or Legal Holiday........................................................................... 68
EXHIBITS
1. List of Debtors
2. List of Selling Debtors
3. List of Independence Debtors
4. Oceanic Ship Co. Settlement Agreement
EXHIBIT 1
Debtors
DEBTOR NAME TAX ID CASE NO.
- ----------- ------ --------
American Classic Voyages Co. 31-0303330 01-10954
Great Pacific NW Cruise Line, L.L.C. 72-1446619 01-10977
DQCV, L.L.C. f/k/a Delta Queen Coastal
Voyages, L.L.C. 72-1451156 01-10964
Cape Cod Light, L.L.C. 72-1451150 01-10962
Cape May Light, L.L.C. 72-1451148 01-10961
DQSB II, Inc. 36-4133147 01-10974
AMCV Holdings, Inc. 72-1451155 01-10973
Ocean Development Co. 36-4243198 01-10972
Great Hawaiian Cruise Line, Inc. 36-3897706 01-10975
CAT II, Inc. 72-1451157 01-10968
Great Independence Ship Co. 36-3897780 01-10969
Great Hawaiian Properties Corporation 36-3897776 01-10971
American Hawaii Properties Corporation 99-0327076 01-10976
AMCV Cruise Operations, Inc. 36-4365686 01-10967
TDQS Co. f/k/a The Delta Queen Steamboat Co. 72-1245383 01-10970
Cruise America Travel, Incorporated, 31-0963640 01-10966
Great AQ Steamboat, L.L.C. 72-1353482 01-10960
Great Ocean Cruise Line, L.L.C. 72-1351947 01-10959
Great River Cruise Line, L.L.C. 72-1353488 01-10963
DQSC Property Co. 36-4233547 01-10965
EXHIBIT 2
Selling Debtors
DEBTOR NAME TAX ID CASE NO.
- ----------- ------ --------
AMCV Cruise Operations, Inc. 36-4365686 01-10967
TDQS Co. f/k/a The Delta Queen 72-1245383 01-10970
Steamboat Co.
Cruise America Travel, Incorporated, 31-0963640 01-10966
Great AQ Steamboat, L.L.C. 72-1353482 01-10960
Great Ocean Cruise Line, L.L.C. 72-1351947 01-10959
Great River Cruise Line, L.L.C. 72-1353488 01-10963
DQSC Property Co. 36-4233547 01-10965
EXHIBIT 3
Independence Debtors
DEBTOR NAME TAX ID CASE NO.
- ----------- ------ --------
AMCV Holdings, Inc. 72-1451155 01-10973
Ocean Development Co. 36-4243198 01-10972
Great Hawaiian Cruise Line, Inc. 36-3897706 01-10975
CAT II, Inc. 72-1451157 01-10968
Great Independence Ship Co. 36-3897780 01-10969
Great Hawaiian Properties Corporation 36-3897776 01-10971
American Hawaii Properties Corporation 99-0327076 01-10976
EXHIBIT 4
Oceanic Ship Co. Settlement Agreement
SETTLEMENT AND RELEASE AGREEMENT
AMERICAN CLASSIC VOYAGES CO., a Delaware corporation ("AMCV") and its
subsidiaries and affiliates listed on Exhibit A hereto (together with AMCV, the
"Debtors"), as debtors and debtors-in- possession in Case No. 01-10954 (the
"Case") before the United States Bankruptcy Court for the District of Delaware
(the "Bankruptcy Court"), and Oceanic Ship Co. and its affiliates listed on
Exhibits hereto (together with Oceanic Snip Co., the "Non-Debtors and, together
with the Debtors, the "Parties"), hereby enter into this Settlement and Release
Agreement (this "Agreement") on this 2nd day of December 2002,
WHEREAS, on October 19,2001, AMCV filed a voluntary petition for
relief under chapter 11 of the United States Bankruptcy Code (the "Bankruptcy
Code"), Thereafter, on October 22,2001, the remaining Debtors filed voluntary
petitions for relief under chapter 11 of the Bankruptcy Code;
WHEREAS, on December 2,2002, the Debtors filed the First Amended Joint
Plan of Liquidation (as amended or modified from time to time, die "Plan");1
WHEREAS, Oceanic Ship Co., a non-debtor affiliate of AMCV, was the
former owner and operator of the m/s Patriot;
WHEREAS, on October 22, 2001, Holland American Line ("HAL") filed a
Verified Complaint In Rem and In Personam for Foreclosure of Preferred Marine
Mortgage in which they asked the District Court for the District of Hawaii,
among other things, to issue a warrant of arrest instructing the United States
Marshall to seize the m/s Patriot, to enter a judgment foreclosing the mortgage
for $79,430,000 and to enter an order directing the sale of the Patriot. On
January 28,2002 pursuant to the District Court of Hawaii's Order for
Interlocutory Sale of Defendant Vessel M/S Patriot Pursuant to Supplemental
Admiralty Rule E(9)(b) and the Notice of Sale, me m/s Patriot was sold at
public auction by a U.S. Marshall to HAL for $79,769,783, On February 1,2002,
the United States District Court for the District of Hawaii entered an order
confirming this sale;
WHEREAS the Non-Debtors assert claims against AMCV and the other
Debtors seeking to substantively consolidate non-debtor Oceanic Ship Co. with
AMCV and/or the other Debtors;
WHEREAS AMCV asserts claims against Oceanic Ship Co. in an aggregate
amount of approximately $41,6 million. AMCV and the other Debtors assert that
Oceanic Ship Co, should not be granted the extraordinary remedy of substantive
consolidation because, aside from a centralized cash management system and
similar directors and officers, Oceanic Ship Co. operated separately from AMCV;
WHEREAS, the Debtors and the Non-Debtors have agreed to resolve my and
all claims, rights and causes of action against each other, their affiliates,
successors, assigns, and creditors, including, without limitation, the
Intercompany Claims and substantive consolidation claims.
- ---------
1 Capitalized terms used herein but not otherwise defined have the
meanings assigned to such terms in the Plan.
1
WHEREAS, alter lengthy negotiations, the Non-Debtors and the Debtors
have agreed to settle this dispute upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the receipt sad sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Section 1. Claims.
The Non-Debtors hereby agree to release any and all claims, rights and
causes of action, including, without limitation, any and all substantive
consolidation or veil piercing claims they may have against any of the Debtors
in exchange for each customer asserting a priority claim for deposits or
prepayments for travel on the m/s Patriot being granted an Allowed AMCV Other
Priority Claim in an amount equal to his share (based on the ratio of the
allowed priority claim he would have against Oceanic Ship Co, had it filed a
chapter 1 1 case to the aggregate of all of the allowed priority claims all
such customers would have against Oceanic Ship Co. had it filed a chapter 1 1
case) of the difference between (a) the sum of $710,000 and any cash that
becomes available from the AMCV Settlement Avoidance Action Percentage (17.5%
of cash proceeds of avoidance actions of the Debtors (net of the costs of
avoidance actions) minus (b) the amount required to pay all holders of Allowed
AMCV Other Priority Claims other than m/s Patriot customers in full (including
post-Effective Date interest),
AMCV and the other Debtors hereby agree to release any and all claims,
including, without limitation, the Intercompany Claims of AMCV against Oceanic
Ship Co. in an aggregate amount of approximately $41.6 million
Section 2. Mutual Release and Covenant Not To Sue.
For the consideration set forth above, the Debtors, on one hand, and
the Non-Debtors, on the other hand, do hereby release and forever discharge
each other, including their respective creditors, predecessors, successors,
officers, directors, shareholders, employees, heirs, executors, administrators
and assigns, from any and all debts, claims, demands, damages, actions or
causes of action of whatsoever nature, whether presently known or unknown,
arising from acts, omissions or events that have occurred from the beginning of
the world to the date first set forth above, including, without limitation,
substantive consolidation claims and Intercompany Claims,
Section 3. Effectiveness.
This Agreement shall only become effective upon the Effective Date of
the Plan.
Section 4. Miscellaneous.
(a) Reliance on Legal Counsel. Each of the Parties represents
and warrants that it has not relied upon or been induced by any representation,
statement or disclosure by the other Party, but has relied upon its own
knowledge and judgment and upon the advice and representation of
2
its counsel in entering into this Agreement. The Parties acknowledge that they
have been represented in the negotiations for and in the execution of this
Agreement by counsel of their own choice and that they have read this Agreement
and have had it fully explained to them by their counsel and that they are
fully aware of the contents of this Agreement and its legal effect.
(b) No Representations or Promises Not Contained Herein. In
making this Agreement each of the Parties represents and warrants that it
relied wholly upon its own judgment, belief and knowledge.
(c) Due Authorization. Each of the Parties represents and
warrants to the other that; (1) this Agreement has been duly authorized,
executed and delivered, (2) that it has the power to enter into this Agreement
and (3) feat, upon entry of the Order by the Bankruptcy Court approving this
Agreement, this Agreement shall be binding and enforceable.
(d) Entire Agreement. This Agreement constitutes the entire
agreement of the Parties with respect to the matters covered herein, and no
other agreement, statement or promise; regarding such matters made by either
Party, or by any employee, director, officer, agent or attorney of either
Party, which is not contained in this Agreement, shall be binding or valid,
(e) Controlling Law. This Agreement shall be governed by,
construed in accordance with, and enforced under the laws of Delaware, without
regard to the rules of conflict of laws of the State of Delaware or any other
jurisdiction.
(f) Effect of Captions. Captions of the sections of this
Agreement are for convenience and reference only, and the words contained
herein shall in no way be employed to explain, modify, amplify or aid in the
interpretation, construction or meaning of die provisions of this Agreement.
(g) Severability. If any provision of this Agreement is held,
determined, or adjudged to be invalid, unenforceable, or void for any reason
whatsoever, the remainder of that provision (if any) and the remaining
provisions of this Agreement will remain in full force and effect.
(h) Construction. This Agreement shall be construed as if
prepared jointly by the Parties, and any uncertainty or ambiguity shall not be
interpreted against either one of the Parties.
(i) Rights and Liabilities of Successors. This Agreement shall be
binding upon and shall inure to the benefit of the Parties hereto and their
respective heirs, executors, administrators, predecessors, successors,
assigns, parent and subsidiary corporations, officers, directors, employees,
agents, attorneys, partners, representatives, and employees, as applicable.
(j) Execution in Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original, but
all of which counterparts together shall constitute one and the same instrument
This Agreement shall become effective when each Party hereto shall have
received counterparts thereof signed by the other Party hereto. Facsimile or
other electronically transmitted signature pages shall be deemed to be an
original.
3
(k) Amendment. This Agreement may be modified, amended or
otherwise changed only in a writing signed by both, of the Parties.
(1) Consent to Jurisdiction. All actions brought arising out of
this Agreement shall be brought in the Bankruptcy Court, and the Bankruptcy
Court shall retain exclusive jurisdiction to determine any and all such
actions.
EACH PARTY HAS READ THIS AGREEMENT AND HAS HAD THE TERMS USED HEREIN
AND THE CONSEQUENCES HEREOF EXPLAINED BY LEGAL COUNSEL EACH PARTY IS AWARE THAT
THIS SETTLEMENT AND RELEASE AGREEMENT INCLUDES A RELEASE OF ANY PREFERENCE
LIABILITY. EACH OF THE UNDERSIGNED HAS CONSULTED WITH ITS ATTORNEYS CONCERNING
THE CONSEQUENCES AND CONTENTS OF THIS AGREEMENT.
4
IN WITNESS WHEREOF, the Debtors and Non-Debtors have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, as of the data first above written.
AMERICAN CLASSIC VOYAGES, CO,
GREAT PACIFIC CRUISE LINE, L.L.C.
DQCV, L.L.C., F/K/A DELTA QUEEN COASTAL
VOYAGES, L.L.C.
CAPE COD LIGHT, L.L.C.
CAPE MAY LIGHT, L.L.C.
DQSB II, INC.
AMCV HOLDINGS, INC.
OCEAN DEVELOPMENT, CO.
GREAT HAWAIIAN CRUISE LINE, INC.
CAT II, INC.
GREAT INDEPENDENCE SHIP CO.
GREAT HAWAIIAN PROPERTIES CORPORATION
AMERICAN HAWAIIAN PROPERTIES CORPORATION
AMCV CRUISE OPERATIONS, INC.
TDQS CO., F/K/A THE DELTA QUEEN STEAMBOAT CO.
CRUISE AMERICA TRAVEL, INCORPORATED,
GREAT AQ STEAMBOAT, L.L.C.
GREAT OCEAN CRUISE LINE, L.L.C.
GREAT RIVER CRUISE LINE, L.L.C.
DQSC PROPERTY CO.
By: /s/ [Illegible Signature]
-------------------------------------------------
Name: [Illegible]
Title:
PROJECT AMERICA, INC.
By: /s/ [Illegible Signature]
-------------------------------------------------
Name:
Title:
5
OCEANIC SHIP CO.
By: /s/ [Illegible Signature]
-------------------------------------------------
Name:
Title:
OCEAN DEVELOPMENT CO.
By: /s/ [Illegible Signature]
-------------------------------------------------
Name:
Title:
6