Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 1 of 44 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION In re: OMEGA NAVIGATION ENTERPRISES, Case No. 11-35927 INC.; BAYTOWN NAVIGATION INC.; Case No. 11-35926 GALVESTON NAVIGATION INC.; Case No. 11-35928 BEAUMONT NAVIGATION INC.; Case No. 11-35930 CARROLTON NAVIGATION INC.; Case No. 11-35931 DECATUR NAVIGATION INC.; Case No. 11-35933 ELGIN NAVIGATION INC.; Case No. 11-35934 FULTON NAVIGATION INC.; Case No. 11-35936 ORANGE NAVIGATION INC.; Case No. 11-35937 OMEGA NAVIGATION (USA) LLC. Case No. 11-35938 Debtors. Chapter 11 DEBTORS SECOND AMENDED JOINT PLAN OF LIQUIDATION BRACEWELL & GIULIANI LLP AS COUNSEL FOR THE DEBTORS AND DEBTORS IN POSSESSION William A. (Trey) Wood III Texas Bar No. 21916050 Trey.Wood@bgllp.com Jason G. Cohen Texas Bar No. 24050435 Jason.Cohen@bgllp.com 711 Louisiana, Suite 2300 Houston, TX 77002 Telephone: (713) 223-2300 Facsimile: (713) 221-1212 Evan Flaschen Conn. Bar No. 304232 Evan.Flaschen@bgllp.com Ilia M. O Hearn Conn. Bar No. 423613 Ilia.OHearn@bgllp.com Goodwin Square 225 Asylum Street, Suite 2600 Hartford, CT 06103 Telephone: (860) 947-9000 Facsimile: (860) 246-3201 #4246920.6 -i-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 2 of 44 TABLE OF CONTENTS INTRODUCTION...1 ARTICLE I DEFINED TERMS, RULES OF INTERPRETATION, AND COMPUTATION OF TIME...2 Section 1.01 Scope of Defined Terms; Rules of Construction...2 Section 1.02 Defined Terms...2 Section 1.03 Rules of Interpretation...14 Section 1.04 Computation of Time...15 Section 1.05 Reference to Monetary Figures...15 Section 1.06 Exhibits...15 Section 1.07 Deemed Acts...15 ARTICLE II UNCLASSIFIED EXPENSES AND CLAIMS (NOT ENTITLED TO VOTE ON THIS PLAN)...15 Section 2.01 Certain Allowed Expenses...15 Section 2.02 Priority Tax Claims...16 Section 2.03 Senior Lenders...16 Section 2.04 OII...16 ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS...17 Section 3.01 Introduction...17 Section 3.02 Voting; Acceptance by Impaired Classes...17 Section 3.03 Empty Classes...17 Section 3.04 Identification of Claims and Interests...17 ARTICLE IV TREATMENT OF CLAIMS AND INTERESTS...18 Section 4.01 Mechanics of Payments...18 Section 4.02 Class 1: Priority Non-Tax Claims...18 Section 4.03 Class 2: Junior Lenders Claims...18 Section 4.04 Class 3: Released Related Persons Claims...19 Section 4.05 Class 4: General Unsecured Claims...20 Section 4.06 Class 5: Intercompany Claims...20 Section 4.07 Class 6: Interests...20 ARTICLE V MEANS OF IMPLEMENTATION OF THIS PLAN...21 Section 5.01 Deemed Substantive Consolidation; Claims Against Multiple Debtors...21 Section 5.02 Preservation of Rights, Claims and Causes of Action...21 Section 5.03 Nonconsensual Confirmation...22 Section 5.04 Closing of the Chapter 11 Case...23 ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS...23 Section 6.01 Distributions...23 -i-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 3 of 44 Section 6.02 Failure to Negotiate Checks...23 Section 6.03 De Minimis Distributions...24 Section 6.04 Delivery of Distributions...24 Section 6.05 Distribution Record Date...24 Section 6.06 Reserves for Claims That Have Not Become Allowed Claims...24 Section 6.07 The Escrow Agent...24 ARTICLE VII EXECUTORY CONTRACTS, OTHER AGREEMENTS AND LIENS...25 Section 7.01 Rejection...25 Section 7.02 Insurance Policies...25 Section 7.03 Claims Based on Rejection of Executory Contracts...25 Section 7.04 Reservation of Rights Related to Executory Contracts...25 ARTICLE VIII PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT, AND UNLIQUIDATED CLAIMS...26 Section 8.01 Objection Deadline...26 Section 8.02 Estimation of Claims...26 Section 8.03 Automatic Reduction of Claims...26 Section 8.04 Automatic Disallowance of Late Proofs of Claim...27 ARTICLE IX CONDITIONS PRECEDENT TO CONFIRMATION OF THIS PLAN...27 Section 9.01 Conditions Precedent to Confirmation...27 Section 9.02 Condition Precedent to Effective Date...27 Section 9.03 Substantial Consummation...27 Section 9.04 Revocation or Withdrawal...28 Section 9.05 Plan Revocation or Failure...28 ARTICLE X AMENDMENTS AND MODIFICATIONS...28 ARTICLE XI RETENTION OF JURISDICTION...29 ARTICLE XII COMPROMISES AND SETTLEMENTS...30 ARTICLE XIII MISCELLANEOUS PROVISIONS...31 Section 13.01 Bar Dates for Certain Actions...31 Section 13.02 Waiver of Final Order Requirement...32 Section 13.03 Severability of Plan Provisions...32 Section 13.04 Successors and Assigns...33 Section 13.05 Effect of Confirmation; Discharge...33 Section 13.06 RELEASE PROVISIONS...34 Section 13.07 Releases...34 Section 13.08 Exculpation...35 Section 13.09 Injunction...35 Section 13.10 Senior Lenders and Junior Lenders...37 -ii-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 4 of 44 Section 13.11 Votes Solicited in Good Faith...37 Section 13.12 Binding Effect...37 Section 13.13 Notices...37 Section 13.14 Setoffs...38 Section 13.15 Recoupment...38 Section 13.16 Term of Stays...39 Section 13.17 Release and Termination of Liens...39 Section 13.18 Dissolution of Committee...39 Section 13.19 Resignation of Independent Directors...39 Section 13.20 Wind-Up of the Debtors...39 Section 13.21 No Admissions...40 Section 13.22 Governing Law...40 ARTICLE XIV CONFIRMATION REQUEST...40 -iii-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 5 of 44 INTRODUCTION Omega Navigation Enterprises, Inc., a Marshall Islands corporation, and the other Debtors in the above-captioned Chapter 11 Case, filed for Chapter 11 relief on July 8, 2011. The Debtors hereby propose the following joint plan of liquidation for the resolution of outstanding Claims against, Interests in and Expenses incurred by each of the Debtors. The Debtors are the proponents of this Plan within the meaning of Bankruptcy Code 1129. THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS AND THE JUNIOR LENDERS ALL SUPPORT THIS PLAN. Because the Debtors operations have ceased and this Plan contemplates ratable treatment for each Class, this Plan is based on a deemed substantive consolidation of the Debtors. Consequently, votes will be tabulated and Distributions will be made for the Debtors as a group, rather than for each Debtor separately. Reference is made to the Disclosure Statement and the Withdrawn Disclosure Statement for a discussion of the Debtors history, businesses, assets and results of operations, as well as a summary and description of this Plan and certain related matters. No materials other than the Disclosure Statement, this Plan and any Exhibits and schedules attached hereto or thereto or referenced herein or therein have been authorized by the Debtors for use in soliciting acceptances or rejections of this Plan. ALL HOLDERS OF CLAIMS, INTERESTS OR EXPENSES ARE ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT CAREFULLY AND IN THEIR ENTIRETY. ALL HOLDERS OF CLAIMS OR INTERESTS ENTITLED TO VOTE TO ACCEPT OR REJECT THIS PLAN ARE ENCOURAGED TO READ THIS PLAN AND THE DISCLOSURE STATEMENT CAREFULLY AND IN THEIR ENTIRETY BEFORE VOTING ON THIS PLAN. WITHOUT LIMITING THE FOREGOING, ALL HOLDERS OF CLAIMS, INTERESTS OR EXPENSES ARE PARTICULARLY URGED TO READ CAREFULLY THE RELEASE, EXCULPATION AND INJUNCTION PROVISIONS SET FORTH IN SECTION 13.07, SECTION 13.08 AND SECTION 13.09 BECAUSE SUCH PROVISIONS AFFECT NOT ONLY SUCH HOLDERS RIGHTS AND CLAIMS AGAINST THE DEBTORS BUT ALSO SUCH HOLDERS RIGHTS AND CLAIMS AGAINST CERTAIN NON-DEBTOR PERSONS IDENTIFIED IN SUCH SECTIONS. ALL HOLDERS OF CLAIMS WHO HAVE RECEIVED POSTPETITION PAYMENTS ARE ALSO PARTICULARLY URGED TO READ CAREFULLY SECTION 8.03, WHICH ENTITLES THE DEBTORS, UPON NOTICE AND WITHOUT NEEDING TO FILE AN OBJECTION, AUTOMATICALLY TO REDUCE SCHEDULED CLAIMS AND PROOFS OF CLAIM BY THE AMOUNT OF ALL SUCH POSTPETITION PAYMENTS. ALL HOLDERS OF CLAIMS WHO FILED THEIR CLAIMS AFTER THE BAR DATE ARE ALSO PARTICULARLY URGED TO READ CAREFULLY SECTION 8.04, WHICH PROVIDES FOR THE AUTOMATIC DISALLOWANCE OF ANY SUCH PROOFS OF CLAIM WITHOUT THE NEED TO FILE AN OBJECTION. -1-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 6 of 44 ARTICLE I DEFINED TERMS, RULES OF INTERPRETATION, AND COMPUTATION OF TIME Section 1.01 Scope of Defined Terms; Rules of Construction For purposes of this Plan, except as expressly defined elsewhere in this Plan or unless the context otherwise requires, all capitalized terms used herein shall have the meanings ascribed to them in Section 1.02. Any term used but not defined herein that is defined in the Bankruptcy Code or the Bankruptcy Rules, as the case may be, shall have the meaning ascribed in the Bankruptcy Code or the Bankruptcy Rules. Whenever the context requires, such terms shall include the plural as well as the singular. The masculine gender shall include the feminine, and the feminine gender shall include the masculine. Section 1.02 Defined Terms (1) Adequate Protection Claims means Adequate Protection Liens and Adequate Protection Superpriority Claims, as each such term is defined in the Cash Collateral Order. (2) Administrative Expense(s) means a Claim(s) for costs and expenses of administration pursuant to Bankruptcy Code 503(b), 507(a)(2), 507(b), or 1114(e)(2), including: (a) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors (such as wages, salaries, or commissions for services, and payments for goods and other services and leased premises) and (b) all Trustee Fees, but shall not include Adequate Protection Claims or Allowed Professional Fee Expenses. (3) Administrative Expenses Bar Date has the meaning set forth in Section 13.01(1). (4) Affiliate means an affiliate and, for purposes of ARTICLE XIII and the definition of Related Person, (a) the term Affiliate is intended to be interpreted and construed as broadly as possible; (b) an Affiliate of a Person shall also include another Person (including a limited partnership) controlling, controlled by or under common control with such first Person; and (c) an Affiliate of a Person shall also include another Person in which such Affiliate has a joint venture interest. For purposes of this definition, control means, when used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise, and the terms controlling and controlled have correlative meanings. (5) Allowed : (i) when used in the context of an Administrative Expense, means an Administrative Expense as to which a timely request for payment has been made in the ordinary course of business or in a Filed Proof of Administrative Expense to which the Debtors or another party-in-interest (1) have not interposed a timely objection or (2) have interposed a timely objection and such objection has been settled, waived through payment or withdrawn, as permitted herein, or denied by a Final Order; -2-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 7 of 44 (ii) when used in the context of a Claim, means any Claim of the type specified or any portion thereof (a) which has been scheduled by the Debtor pursuant to Bankruptcy Rule 1007 and (i) is not scheduled as disputed, contingent or unliquidated; (ii) as to which no Proof of Claim has been filed; and (iii) as to which no objection to such scheduled claim has been filed or request for estimation has been made; (b) as to which a timely Proof of Claim has been filed as of the Bar Date or, in the case of rejection Claims, as of the date specified in Section 7.03, and as to which no objection to allowance or request for estimation has been interposed on or before the latter of (i) the Claims Objection Deadline or (ii) the expiration of such other applicable period of limitation fixed by the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court; (c) as to which any objection to its allowance has been settled, waived through payment or withdrawn, as permitted herein, or denied by a Final Order; (d) as to which liability of the Debtor and the amount thereof has been determined and expressly allowed by a Final Order; (e) as to which the liability of the Debtor and the amount thereof are determined and expressly allowed by final order of a court of competent jurisdiction other than the Bankruptcy Court; or (f) that is expressly deemed allowed in a liquidated amount in this Plan; (iii) when used in the context of an Interest, means any Interest on the Distribution Record Date that has not been disallowed, cancelled or otherwise expunged pursuant to the terms of this Plan or a Final Order; (iv) when used in the context of the Junior Lenders Claims and the Released Related Persons Claims, the Allowed amount of such Claims in accordance with the JL Settlement and the Released Related Persons Settlement, respectively; and (v) when used in the context of Professional Fees, means any Professional Fees that have been Allowed by the Bankruptcy Court after application therefor, but subject to the Professional Fees Cap as relevant to the particular Professionals involved. (6) Available Amounts means the following (in all cases subject to the indemnification rights of the Escrow Agent pursuant to Section 6.07): (i) with respect to the Junior Lenders' Claims, the JL Settlement Payment to be made out of the Equity Interest Proceeds; (ii) (iii) with respect to OpEx, the OpEx Payment; with respect to Trustee Fees, the amount described in Section 2.01(4); (iv) (A) with respect to the Allowed Professional Fees of the Debtors and the Escrow Agent, the Debtor Fees Payment and, in the case of Bracewell and the Escrow Agent, the Wrap-Up Fees Payment and the Free Cash; and (B) with respect to the Allowed Professional Fees of the Committee, the Committee Fees Payment and the Free Cash; provided, however, each of the foregoing Professionals shall be subject to the Professional Fees Cap as it applies to them; and -3-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 8 of 44 (v) with respect to all Claims entitled to Distribution in Class 4 after payment of Trustee Fees, out of the Free Cash on a Pro Rata basis. (7) Avoidance Actions means any and all actual or potential claims or Causes of Action to avoid a transfer of property or an obligation incurred by the Debtor pursuant to any applicable section of the Bankruptcy Code, including Bankruptcy Code 544, 545, 547, 548, 549, 550, 551, 553(b), and 724(a). (8) Ballot means the document for accepting or rejecting this Plan, in the form approved by the Bankruptcy Court. (9) Bankruptcy Code means the Bankruptcy Reform Act of 1978, as codified in title 11 of the United States Code, 11 U.S.C. 101-1532, as in effect on the Petition Date, as heretofore or hereafter amended. (10) Bankruptcy Court means the United States Bankruptcy Court for the Southern District of Texas, Houston Division. (11) Bankruptcy Rules means, collectively, the Federal Rules of Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, the Federal Rules of Civil Procedure, as amended, as applicable to the Chapter 11 Case or proceedings therein, and the Local Rules of the Bankruptcy Court, as applicable to the Chapter 11 Case or proceedings therein, as the case may be. (12) Bar Date(s) means the applicable date(s) designated by the Bankruptcy Court as the last date for Filing Proofs of Claims or Interests in the Chapter 11 Case, which was November 21, 2011 as to all Claims and Interests other than those identified on Exhibit C to Bankruptcy Court docket entry 528, as to whom the bar date was extending to March 14, 2012. (13) Bracewell means Bracewell & Giuliani LLP, in its capacity as Debtors lead Chapter 11 counsel and, as the context requires, its separate capacity as Escrow Agent. (14) Business Day means any day, excluding Saturdays, Sundays or legal holidays (as defined in Bankruptcy Rule 9006(a)), on which commercial banks are open for business in Houston, Texas and in Athens, Greece. (15) Cash means legal currency of the United States of America (unless the Disclosure Statement specifically refers to Euros) or equivalents thereof, including bank deposits and checks, unless a person entitled to payment under this Plan specifically requests payments in Euros and, in their sole discretion, the Debtors agree to do so. (16) Cash Collateral Order means the order entered by the Bankruptcy Court in the Chapter 11 Case at Dkt. No. 101, as the same has been extended and modified from time to time. (17) Cause(s) of Action means each and all actions, causes of action, liabilities, obligations, rights, suits, damages, judgments, remedies, demands, setoffs, defenses, recoupments, crossclaims, counterclaims, third-party claims, indemnity claims, contribution claims, or any other claims whatsoever, whether known or unknown, matured or unmatured, -4-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 9 of 44 fixed or contingent, liquidated or unliquidated, disputed or undisputed, suspected or unsuspected, foreseen or unforeseen, direct or indirect, choate or inchoate, existing or hereafter arising, in law, equity, or otherwise, based in whole or in part upon any act or omission or other event occurring prior to the Petition Date or during the course of the Chapter 11 Case, including through the Effective Date. (18) Chapter 11 Case means, collectively, the chapter 11 bankruptcy cases of the Debtors before the Bankruptcy Court Texas, jointly-administered as Case No. 11-35926. (19) Charter Claim means each of the Preserved Rights described in Section 5.02(2), together with any other Estate claims or causes of action, including as to unpaid Vessel-related account receivable, and/or any other rights related to any amounts payable to any of the Debtors in connection with the use of any of the Vessels, arising prior to the Effective Date and pursued in court or in arbitration (or by way of a similar process) in respect of the Vessels or charter parties or other contracts of employment relating to the Vessels for amounts which the Debtors assert should have been paid but were not paid when due, and (ii) any Charter Claims that the Senior Lenders decide to leave with the Debtors for prosecution for the benefit of the Senior Lenders at the Senior Lenders expense. Notwithstanding anything to the contrary in this defined term or in Section 5.02(2), Charter Claims shall not include any early termination claims and related causes of action in respect of the Omega Lady Sarah and/or the Omega Lady Miriam. (20) Claim means a claim, whether or not asserted or Allowed; provided, however, that in the case of Professionals, Claim means a claim for payment of fees and reimbursement expenses incurred on or after the Petition Date through and including the Effective Date. (21) Claims Objection Deadline means the first Business Day which is 30 days after the Effective Date, or such later date as may be established by the Bankruptcy Court in accordance with Section 8.01. (22) Class means a category of Claims or Interests as set forth in Section 3.04 and ARTICLE IV pursuant to Bankruptcy Code 1122. (23) Collateral means any property or interest in property subject to a Lien to secure the payment or performance of a Claim, which Lien is not subject to avoidance under the Bankruptcy Code or otherwise invalid under the Bankruptcy Code or applicable state law. (24) Committee means the statutory official committee of unsecured creditors appointed in the Chapter 11 Case. (25) Confirmation means entry by the Bankruptcy Court of the Confirmation Order on the docket of the Chapter 11 Case. (26) Confirmation Date means the date on which the Confirmation Order is entered on the docket in the Chapter 11 Case within the meaning of Bankruptcy Rules 5003 and 9021. (27) Confirmation Hearing means the hearing held by the Bankruptcy Court to consider Confirmation of this Plan pursuant to Bankruptcy Code 1129, as such hearing may be continued from time to time. -5-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 10 of 44 (28) Confirmation Order means the order entered by the Bankruptcy Court confirming this Plan pursuant to Bankruptcy Code 1129. (29) Consummation means substantial consummation, as such term is defined in Bankruptcy Code 1101(2), which shall occur (or be deemed to occur) on the Effective Date in accordance with Section 9.03. (30) Creditor means any Person who holds a Claim against the Debtor. (31) Debtors means individually or collectively the following debtors and debtors in possession: Omega, Galveston Navigation Inc., Beaumont Navigation Inc., Carrolton Navigation Inc., Decatur Navigation Inc., Elgin Navigation Inc., Fulton Navigation Inc., Orange Navigation Inc., Baytown Navigation Inc. and Omega Navigation (USA) LLC, and the term Debtors shall include the Debtors after the Effective Date in addition to the Debtors prior to the Effective Date. (32) Deficiency Claim means a Claim in the amount by which an Allowed Secured Claim exceeds the value of any Collateral securing such Claim as may be determined by the Bankruptcy Court in accordance with Bankruptcy Code 506(a). Except as otherwise provided herein, a Deficiency Claim is a General Unsecured Claim. (33) Disallowed means, with respect to a Claim or Expense, the portion of such Claim or Expense that is not Allowed. (34) Disclosure Statement means the First Amended Disclosure Statement for the Debtors First Amended Joint Plan of Liquidation filed in the Chapter 11 Case as the same may be amended, modified or supplemented from time to time, including all Exhibits and schedules thereto, that is prepared and distributed in accordance with the Bankruptcy Code, the Bankruptcy Rules, and any other applicable law. (35) Disclosure Statement Hearing means the first day on which the Bankruptcy Court conducts a hearing in respect of the Debtors motion for approval of the Disclosure Statement. (36) Disputed means, in reference to a Claim or Interest, any Claim or Interest not otherwise Allowed or paid pursuant to this Plan or an order of the Bankruptcy Court (a) which has been or hereafter is listed on the Schedules as unliquidated, contingent, or disputed, and which has not been resolved by written agreement of the parties; (b) proof of which was required to be Filed but as to which a Proof of Claim or Interest was not timely or properly Filed; (c) proof of which was timely and properly Filed and which has been or hereafter is listed on the Schedules as unliquidated, contingent, or disputed; (d) that is disputed in accordance with the provisions of this Plan; or (e) as to which the Debtor or another party-in-interest has interposed a timely objection or request for estimation in accordance with the Bankruptcy Code, the Bankruptcy Rules, and any orders of the Bankruptcy Court, or is otherwise disputed by the Debtor in accordance with applicable law, which objection, request for estimation, or dispute has not been withdrawn or determined by a Final Order; provided, however, that for purposes of determining whether a particular Claim is a Disputed Claim prior to the expiration of any period of limitation fixed for the interposition by the Debtor of objections to the allowance of Claims, any Claim that is not an Allowed Claim shall be deemed Disputed. -6-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 11 of 44 (37) Distribution Date means the date or dates, occurring as soon as practicable after the latest of (a) the Effective Date, (b) the date on which the relevant Expense or Claim is Allowed and (c) the date specified for payment of an Expense or Claim in the SL Settlement. (38) Distribution Record Date has the meaning set forth in Section 6.05(1). (39) Distributions means all distributions required to be made pursuant to this Plan. (40) Effective Date means the Business Day on which the conditions to occurrence of the Effective Date set forth in Section 9.02 have been satisfied. (41) Equity Interests means Omega s equity interests in OMIN, Omnicrom and OMAN. (42) Equity Interests Proceeds means the cash proceeds received as a result of the closing of the sales of the Equity Interests pursuant to the Equity Interests Sale Order, consisting of (i) $50,000 for the Equity Interests in Omnicrom, plus (ii) $10,000 for the Equity Interests in OMAN, plus (iii) $4,000,000 for the Equity Interests in OMIN; provided, however, that if Delos Megacore Ltd. pursues an appeal from the Bankruptcy Court s Order Denying Motion of Delos Megacore Ltd. for Approval of Break-Up Fee [Dkt. No. 1068], the Equity Interests Proceeds shall be minus the amount of the break-up fee, if any, awarded pursuant to a Final Order. (43) Equity Interests Sale Order means, collectively, the Final Orders of the Bankruptcy Court at Dkt. Nos. 987 & 1022 authorizing and directing the sale of the Equity Interests. (44) Escrow means the Escrow as such term is defined in (m) of the SL Settlement, which Escrow shall also apply to funds received by and Distributions to be made by the Escrow Agent pursuant to this Plan. (45) Escrow Agent means Bracewell in its capacity as the Escrow Agent as such term is defined in (m) of the SL Settlement, which capacity shall also apply to funds received by and Distributions to be made by the Escrow Agent pursuant to this Plan. For the purposes of the Distributions of Available Amounts, the fees and expenses of the Escrow Agent shall be deemed to be included in the Professional Fees of Bracewell. (46) Escrow Agreement means the escrow agreement embodied in the SL Settlement Order and Exhibit A thereto, as more particularly referred to in (m) of the SL Settlement, which Escrow Agreement shall also apply to funds received by and Distributions to be made by the Escrow Agent pursuant to this Plan. (47) Estate means the estate created for the Debtors in the Chapter 11 Case pursuant to Bankruptcy Code 541. (48) Estate Party(ies) means individually and collectively: (a) each of the Debtors and its Estate; (b) the Committee and each Committee member; (c) the Escrow Agent; (d) each Junior Lender; and (e) each of the Released Related Persons; together with the officers, directors, -7-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 12 of 44 employees, representatives, professionals, advisers and other Related Persons of each of the foregoing. (49) Executory Contract means an executory contract or unexpired lease within the meaning of Bankruptcy Code 365. (50) Expense(s) means expenses of the Estates entitled to administrative priority status pursuant to Bankruptcy Code 503(b) or 507(b) or 28 U.S.C. 1930, including Administrative Expenses, Adequate Protection Claims, Professional Fee Expenses and Trustee Fees. (51) Exhibit means an exhibit annexed to the Disclosure Statement or contained in a Plan supplement, as applicable, unless the context otherwise indicates. (52) File, Filed or Filing means file, filed or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Case. (53) Final Order means (i) an order of the Bankruptcy Court as to which the time to appeal, petition for certiorari or motion for re-argument or rehearing has expired and as to which no appeal, petition for certiorari or other proceedings or motion for re-argument or rehearing shall then be pending or (ii) if an appeal, writ of certiorari, motion for re-argument or rehearing thereof has been Filed or sought, such order of the Bankruptcy Court shall not have been stayed. (54) Free Cash means the sum of (i) the Equity Interest Proceeds, plus (ii) the SL $500,000 Payment, minus (iii) the JL Settlement Payment. (55) General Unsecured Claim means any Claim that is not Secured, an Other Unsecured Claim or entitled to priority under the Bankruptcy Code. (56) Governmental Unit means governmental unit, as such term is defined in Bankruptcy Code 101(27), together with any other governmental agency. (57) Holder means the beneficial holder of any Expense, Claim or Interest. (58) Impaired means, when used with reference to a Claim or Interest, a Claim or Interest that is impaired within the meaning of Bankruptcy Code 1124. (59) Indemnification Claims means a claim by any Related Person of any of the Debtors for indemnification, contribution, reimbursement or subrogation by any of the Debtors, whether (a) arising before or after the Petition Date or the Effective Date, (b) liquidated or contingent, (c) contractual or statutory and/or (d) legal or equitable but, for the avoidance of doubt, shall not include the indemnification and other claims of the Escrow Agent as described in Section 6.07. (60) "Independent Directors" means the current independent directors of Omega, being Messrs. Nicolas Borkmann (chair), Kevin Harding and Shariq Azhar. -8-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 13 of 44 (61) Interests or Interest means the interest of any holder of equity securities in any of the Debtors represented by any issued outstanding common stock, preferred interests or other instrument evidencing a present ownership interest in, right to acquire or right to recover or convert into an ownership interest or the right to in any of the Debtors prior to the Effective Date (including prior to the Petition Date), however evidenced. (62) JL Adequate Protection Claims means the Adequate Protection Claims in the approximate amount of $36,200,000 that the Junior Lenders have asserted in the JL Adequate Protection Motion. (63) JL Adequate Protection Motion means the Junior Lenders Renewed Motion for Superpriority Administrative Expense Claim Pursuant to 11 U.S.C. 503(b) and 507(b) Filed on March 1, 2013 [Dkt. No. 992] (as such motion is being settled pursuant to this Plan). (64) JL Settlement means a Bankruptcy Rule 9019 settlement of the JL Adequate Protection Motion and all other Claims of the Junior Lenders to be approved at the Confirmation Hearing as an integral and non-severable part of this Plan, as follows: in resolution of all actual and potential disputes as between the Junior Lenders, on the one hand and, on the other hand, each of the Estate Parties other than the Junior Lenders, (a) the JL Adequate Protection Claims will be Allowed in the amount of the JL Settlement Payment; (b) the Junior Lenders will waive in full the right to receive any Distributions on any and all Deficiency Claims the Junior Lenders have or may have; and (c) the Junior Lenders shall be included within the Estate Parties entitled to the benefit of the Release Provisions. (65) JL Settlement Payment means the payment of $3,500,000 to the Junior Lenders as a result of the JL Settlement. (66) Junior Facilities Agreement means that certain Facilities Agreement in the original maximum amount of $42,500,000 and outstanding principal amount as of the Petition Date of $36,222,378 dated 27 March 2008, as amended, modified and supplemented, between, among others, Omega and the Junior Lenders. (67) Junior Lenders means the lenders under the Junior Facilities Agreement. (68) Junior Lenders Claims means collectively, the Expenses and Claims of the Junior Lenders. (69) Kassiotis means George Kassiotis, the Chief Executive Officer and largest shareholder of Omega. (70) Kassiotis Claim(s) means, individually or collectively as the context requires, the (a) the non-priority portion of the Claim of Kassiotis for unpaid contractual compensation; (b) the Bankruptcy Code 507(a)(4) portion of the Claim of Kassiotis for unpaid contractual compensation; and (c) the Claim of Kassiotis for contractual severance upon the termination of his employment by Omega after the transfer of the Vessels pursuant to the SL Settlement. -9-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 14 of 44 (71) Lien means a charge against or interest in property of any Debtor or its Estate to secure payment of a debt or performance of an obligation, including a mortgage, deed of trust, pledge, or other security interest or encumbrance in or against any property. (72) OII means ONE Investments, Inc., a Marshall Islands limited liability company. (73) OII Note means that certain secured demand convertible promissory note in the Petition Date amount of approximately $5.45 million dated July 16, 2010, between Omega and OII. (74) OII Note Claim means the Allowed Claim under the OII Note. (75) OMAN means, together, (a) Omega Management Inc., a non-debtor whollyowned subsidiary of Omega and (b) Taylor, a non-debtor wholly-owned subsidiary of Omega Management Inc. (76) Omega means Omega Navigation Enterprises, Inc., one of the Debtors. (77) OMIN means Omega Investments Ltd., a non-debtor wholly-owned subsidiary of Omega. (78) Omnicrom means Omnicrom Holdings Ltd., a non-debtor wholly-owned subsidiary of Omega. (79) Omnicrom Share Pledge means the pledge by Omega of its Equity Interests in Omnicrom to secure the OII Note. (80) OpEx means OpEx as such term is defined in (b) of the SL Settlement. (81) Person means a person, an entity a corporation, a limited partnership, limited liability company, trust, liquidating trust, joint venture, Governmental Unit or other entity of any kind. (82) Petition Date means July 8, 2011, which was the date on which each of the Debtors filed its voluntary petition for relief under chapter 11 of the Bankruptcy Code. (83) Plan means this Debtors Second Amended Joint Plan of Liquidation, including any Exhibits and all supplements, appendices and schedules thereto, either in its present form or as the same may be altered, amended, modified or supplemented from time to time as permitted herein and in accordance with the provisions of the Bankruptcy Code and the terms hereof. (84) Preserved Rights means any and all actual, pending and potential rights, claims, causes of action, defenses, and counterclaims that the Debtors or the Estates have or may have against any Person, whether arising or based on an act or matter arising before or after the Petition Date and whether based in contract, law, equity, tort, statute (including the Bankruptcy Code) or rule or regulation (including the Bankruptcy Rules), except to the extent released pursuant to the SL Settlement, the JL Settlement, the Released Related Persons Settlement, the Professional Fees Settlement or this Plan. -10-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 15 of 44 (85) Priority Non-Tax Claims means any Claim other than an Administrative Expense or a Priority Tax Claim, entitled to priority in payment as specified in Bankruptcy Code 507(a). (86) Priority Tax Claim means a Claim that is entitled to priority pursuant to Bankruptcy Code 507(a)(8). (87) Pro Rata means that proportion that an Allowed Claim in a particular Class or Classes, as the context requires, bears to the aggregate amount of all Allowed Claims in such Class or Classes. (88) Professional means any professional employed in the Chapter 11 Case pursuant to Bankruptcy Code 327, 328 or 1103, including any Professional continuing in such capacity after the Effective Date. (89) Professional Fees means the Expenses of a Professional for compensation of fees or reimbursement of expenses incurred on and after the Petition Date and, in the case of the Debtors Professionals, through and including the closing of the Estate pursuant to ARTICLE XI(16) and, in the case of the Committee s Professionals, through and including the date of the dissolution of the Committee pursuant to Section 13.18, including under Bankruptcy Code 327, 328, 330, 331, 1103 and 1129(a)(4). For the avoidance of doubt, the fees and expenses of the Escrow Agent, including the fees and expenses of any professionals retained by the Escrow Agent, shall not comprise Professional Fees and, instead, shall be subject to Section 6.07. (90) Professional Fees Cap means, with respect to each of the following Professionals, the following amounts: (i) for Bracewell (including in its capacity as Escrow Agent), the sum of (a) all amounts previously paid to Bracewell on an interim basis, plus (b) Bracewell s share of the SL Debtor Fees Payment, plus (c) the SL Wrap-Up Fees Payment, plus (d) $110,000 out of the Free Cash; (ii) for all other Debtor Professionals, the sum of (a) all amounts previously paid to them on an interim basis, plus (b) their respective shares of the SL Debtor Fees Payment; and (iii) for all Committee Professionals, an amount equal to all of their Allowed Professional Fees minus 5.25%, to be paid out of the sum of (a) all amounts previously paid to them on an interim basis, plus the SL Committee Fees Payment, plus (c) the Free Cash. (91) Professional Fees Settlement means, as to each of the Professionals referred to in the defined term Professional Fees Cap, the settlement of any and all actual or potential objections that any of the Estate Parties have or may have against such Professionals Allowed Professional Fees to be approved at the Confirmation Hearing as an integral and non-severable part of this Plan, in exchange for agreement to the Professional Fees Cap. This includes (i) all existing and potential objections to the Allowance of any Committee Professional Fees in excess of the Budgets under the Cash Collateral Order; (ii) all existing and potential objections to the -11-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 16 of 44 Allowance of any Committee Professional Fees in respect of the Order to Show Cause [Dkt. No. 464, vacated at Dkt. No. 922]; (iii) all other existing and potential objections to the Allowance of Committee Professional Fees; and (iv) all existing and potential objections to the Allowance of Debtor Professional Fees; in each case subject to the Professional Fees Cap for each of the relevant Professionals. For the avoidance of doubt, the Professional Fees Settlement shall not be binding on the United States Trustee or any Governmental Unit. (92) Proof of Claim means a Proof of Claim that is Filed by a Holder of a Claim. (93) Record Date means the record date fixed by the Bankruptcy Court in accordance with Rule 3018(a) of the Federal Rules of Bankruptcy Procedure. (94) Related Persons means, with respect to any Person, their present and former Affiliates, officers, directors (or the functional equivalent, if any), employees, managers, shareholders, partners, financial advisors, attorneys, accountants, investment bankers, consultants, agents and professionals, each acting in such capacity, and any Person claiming by or through any of them (including their respective present and former officers, directors, managers, shareholders, partners, employees, members and professionals). (95) Release Provisions means, collectively, Section 13.07, Section 13.08 and Section 13.09. (96) Released Related Persons means (a) each of the Debtors present and former officers and directors, including without limitation the Independent Directors; (b) OMIN and its Related Persons; (c) Omnicrom and its Related Persons; (d) OMAN and its Related Persons; (e) OII and its Related Persons; (f) One Enterprises Inc and its Related Persons; and (g) Oxygen Maritime Inc and its Related Persons. (97) Released Related Persons Claims means, as to each Released Related Person (as the context requires), all Claims and Liens against and Interests in any of the Debtors held by such Released Person, including: (a) all Filed Proofs of Claim or proofs of Interest and all Liens related thereto; (b) all scheduled Claims and Interests and all Liens related thereto; (c) all Indemnification Claims and all Liens related thereto; (d) all severance, termination, rejection and like Claims that have been or could be asserted as a result of employment terminations and other Executory Contract rejections or terminations and all Liens related thereto; (e) the OII Note Claim and any other Claims held by OII and all Liens related thereto; (f) all of the Kassiotis Claims and all Liens related thereto; and (g) any other type or nature of Claim or Interest currently or hereafter asserted or assertable and regardless of whether fixed, liquidated, contingent or Disputed and all Liens related thereto. With limiting the foregoing, the Released Related Person s Claims include any and all Claims and Interests, and all Liens related thereto, asserted in the Proofs of Claim Filed by OII, Messrs. Kassiotis, Robert Flynn and the Independent Directors, but, notwithstanding anything to the contrary in this defined term, shall not include the Proofs of Claim Filed by Messrs. Chiang Hai Ding, Yuan Chiang Huang and Matthew McCleery. (98) Released Related Persons Settlement means a Bankruptcy Rule 9019 settlement of any and all Released Related Persons Claims to be approved at the Confirmation Hearing as -12-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 17 of 44 an integral and non-severable part of this Plan, as follows: in resolution of all actual and potential disputes as between the Released Related Persons, on the one hand and, on the other hand, each of the Estate Parties other than the Released Related Persons, (a) the Released Related Persons will waive in full the right to receive any Distributions on any and all Released Related Persons Claims; and (b) the Released Related Persons shall be included within the Estate Parties entitled to the benefit of the Release Provisions. (99) Schedules means the schedules of assets and liabilities and statements of financial affairs Filed by the Debtor pursuant to Bankruptcy Code 521 and Bankruptcy Rule 1007(b), as such schedules or statements may be amended or supplemented from time to time as permitted hereunder in accordance with Bankruptcy Rule 1009 or orders of the Bankruptcy Court. (100) Secured means, when referring to a Claim: (a) secured by a Lien on property in which the Estate has an interest, which Lien is valid, perfected, and enforceable pursuant to applicable law or by reason of a Bankruptcy Court order, or (b) that is subject to setoff pursuant to Bankruptcy Code 553, to the extent of the value of the Creditor s interest in the Estate s interest in such property or to the extent of the amount subject to setoff, as applicable; in each case as determined pursuant to Bankruptcy Code 506(a). To the extent that the value of a Creditor s interest in the Estate s interest in such property is less than the amount of the Claim that has the benefit of such security, such Claim is a Deficiency Claim. (101) Senior Lenders means the Senior Lenders and the Senior Facilities Agent, as each such term is used in the SL Settlement Order. (102) SL $500,000 Payment means the $500,000 Payment as such term is defined in (a)(i) of the SL Settlement. (103) SL Committee Fees Payment means the Committee Fees Payment as such term is defined in (a)(ii) of the SL Settlement. (104) SL Debtor Fees Payment means the Debtor Fees Payment as such term is defined in (a)(ii) of the SL Settlement. (105) SL OpEx Payment means the OpEx Payment as such term is defined in (b) of the SL Settlement. (106) SL Payment(s) means, individually or collectively as the context requires, the SL $500,000 Payment, SL Committee Fees Payment, SL Debtor Fees Payment and SL OpEx Payment. (107) SL Settlement means the Settlement Agreement as such term is defined in the SL Settlement Order and as such agreement is set forth in Exhibit A to the SL Settlement Order. (108) SL Settlement Order means the Order and Opinion of the Bankruptcy Court at Dkt. No. 922. -13-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 18 of 44 (109) SL Wrap-Up Fees Payment means the Wrap-Up Fees Payment as such term is defined in (a)(ii) of the SL Settlement. (110) Trustee Fees means all Expenses of the United States Trustee chargeable to the Estates pursuant to 28 U.S.C. 1930. (111) Unimpaired means a Claim or Interest that is not Impaired. (112) Vessel(s) means the 8 vessels transferred to the Senior Lenders pursuant to the SL Settlement Order. (113) Vessel-Owning Subsidiaries means the following Debtors: Galveston Navigation Inc.; Beaumont Navigation Inc.; Carrolton Navigation Inc.; Decatur Navigation Inc.; Elgin Navigation Inc.; Fulton Navigation Inc.; Orange Navigation Inc.; and Baytown Navigation Inc. (114) Voting Agent means Bracewell. (115) Voting Deadline means the date by which a Creditor or Interest Holder must deliver a Ballot to accept or reject this Plan as set forth in the order of the Bankruptcy Court approving the instructions and procedures relating to the solicitation of votes with respect to this Plan. (116) Withdrawn Disclosure Statement means the First Amended Joint Disclosure Statement for the Debtors Proposed First Amended Joint Plan of Reorganization [Dkt. No. 687] filed by the Debtors on September 14, 2012. A copy of the Old Disclosure Statement is available upon written request of Bracewell. For the avoidance of doubt, the Withdrawn Disclosure Statement has been withdrawn and is of no further force or effect. Section 1.03 Rules of Interpretation For purposes of this Plan, (i) except as provided in ARTICLE X, any reference in this Plan to a contract, instrument, release, indenture, 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; (ii) except as provided in ARTICLE X, any reference in this Plan to an existing document or Exhibit Filed or to be Filed means such document or Exhibit as it may have been or may be amended, modified, or supplemented as permitted herein; (iii) unless otherwise specified, all references in this Plan to an ARTICLE, a Section, a Schedule, or an Exhibit are references to an ARTICLE, Section or Schedule to this Plan or an Exhibit to the Disclosure Statement or Plan Supplement, as the context indicates; (iv) the words herein, hereto, and hereof refer to this Plan in its entirety rather than to a particular portion of this Plan; (v) captions and headings to ARTICLES and Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Plan; any term used herein that is defined in Bankruptcy Code 101 and not otherwise defined herein shall have the meaning ascribed to in in Bankruptcy Code 101; and (vii) unless otherwise set forth herein, the rules of construction set forth in Bankruptcy Code 102 and in the Bankruptcy Rules shall apply. -14-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 19 of 44 Section 1.04 Computation of Time In computing any period of time prescribed or allowed by this Plan, the provisions of Bankruptcy Rule 9006(a) shall apply. Section 1.05 Reference to Monetary Figures All references in this Plan to monetary figures shall refer to legal currency of the United States of America, unless otherwise expressly provided. Section 1.06 Exhibits All Exhibits are incorporated into and are a part of this Plan as if set forth in full herein. Subject to ARTICLE X, the Debtors explicitly reserve the right to modify or make additions to or subtractions from any Exhibit hereto or to the Disclosure Statement and to amend, modify or supplement any Exhibit prior to the Confirmation Date. Section 1.07 Deemed Acts Whenever an act or event is expressed under this Plan to have been deemed done or to have occurred, it shall be deemed to have been done or to have occurred without any further act by any party, by virtue of this Plan and the Confirmation Order. ARTICLE II UNCLASSIFIED EXPENSES AND CLAIMS (NOT ENTITLED TO VOTE ON THIS PLAN) In accordance with Bankruptcy Code 1123(a)(l), Expenses and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims and Interests set forth in ARTICLE III. This Section also refers to the claims of the Senior Lenders for the limited purposes described below. These unclassified Expenses and Claims are treated as follows: Section 2.01 Certain Allowed Expenses (1) Allowed Administrative Expenses. Except as otherwise provided for in this Plan or to the extent that the Holder of an Allowed Administrative Expense has agreed to a different treatment of such Expense, and subject to the requirements of ARTICLE XIII, each Holder of an Allowed Administrative Expense shall receive the Available Amounts in full satisfaction, release, settlement, and discharge of and in exchange for such Allowed Expense, even if the Available Amounts is insufficient to pay such Allowed Expense in full. Such payment shall be made as soon as practicable after the later of (i) the Distribution Date and (ii) such other date as may be agreed upon in writing by the Holder of such Expense and the Debtors. (2) Allowed Professional Fees. Except as otherwise provided for in this Plan, including the Professional Fees Cap as to the relevant Professionals, or to the extent that the Holder of Allowed Professional Fees has agreed to a different treatment of such Allowed Professional Fees, and subject to the requirements of Section 6.07 and ARTICLE XIII, each Holder of Allowed Professional Fees shall receive the Available Amounts in full satisfaction, -15-
Case 11-35926 Document 1073 Filed in TXSB on 04/24/13 Page 20 of 44 release, settlement, and discharge of and in exchange for such Allowed Professional Fees, even if the Available Amounts are insufficient to pay such Allowed Professional Fees in full. Such payment shall be made as soon as practicable after the later of (i) the Distribution Date and (ii) such other date as may be agreed upon in writing by the Holder of such Expense and the Debtors. (3) OpEx. To the extent not already paid in the ordinary course of business, OpEx shall be paid out of the OpEx Payment as and when agreed between the Debtors and the Senior Lenders in accordance with the SL Settlement. Such payment shall be in full satisfaction, release, settlement, and discharge of and in exchange for such OpEx, even if the OpEx Payment is insufficient to pay such OpEx in full. (4) Trustee Fees. All Trustee Fees shall be paid by the Debtors as they come due out of the Free Cash. Section 2.02 Priority Tax Claims The Debtors do not have any Allowed Priority Tax Claims. Section 2.03 Senior Lenders (1) Claims. The claims of the Senior Lenders are preserved for the sole and exclusive purpose of finalizing the transfer of the Vessels and all other property to be transferred to them pursuant to the SL Settlement and the SL Settlement Order. Upon the irrevocable consummation of all such transfers, all such claims shall be automatically be deemed released and no longer enforceable against the Debtors or the Estates in any way in accordance with the release provisions set forth in the SL Settlement and the mutual releases exchanged in accordance therewith. (2) Limited Nature. The claims of the Senior Lenders are so preserved for such sole and exclusive purpose. Such claims shall not be deemed to be a Class hereunder or Claims hereunder, shall not be entitled to any Distributions, any solicitation or any voting rights, and shall not subject either such claims or any of the Senior Lenders or their Related Persons to any of the Release Provisions. Section 2.04 OII (1) Claim. As a result of the process pursuant to which the Equity Interests were sold and also as a result of the Released Related Persons Settlement, OII has voluntarily waived any Distributions in respect of the OII Note Claim and the Omnicrom Share Pledge. However, the OII Note Claim (but not the Omnicrom Share Pledge) is preserved for the sole and exclusive purpose of ensuring that Omnicrom s guarantee of the OII Note is not contractually deemed to be released. (2) Limited Nature. The OII Note Claim is preserved, and shall be included in Class 3, for such sole and exclusive purpose. -16-