Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 1 of 45 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 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 #4230168.2 -i-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 2 of 45 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...13 Section 1.04 Computation of Time...14 Section 1.05 Reference to Monetary Figures...14 Section 1.06 Exhibits...14 Section 1.07 Deemed Acts...14 ARTICLE II UNCLASSIFIED EXPENSES AND CLAIMS (NOT ENTITLED TO VOTE ON THIS PLAN)...14 Section 2.01 Certain Allowed Expenses...14 Section 2.02 Junior Lender Adequate Protection Rights...15 Section 2.03 Priority Tax Claims...15 Section 2.04 Senior Lenders...15 ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS...15 Section 3.01 Introduction...15 Section 3.02 Voting; Acceptance by Impaired Classes...16 Section 3.03 Empty Classes...16 Section 3.04 Identification of Claims and Interests...16 ARTICLE IV TREATMENT OF CLAIMS AND INTERESTS...17 Section 4.01 Mechanics of Payments...17 Section 4.02 Class 1: Priority Non-Tax Claims...17 Section 4.03 Class 2: Junior Lender Claims...17 Section 4.04 Class 3: OII Note Claim...18 Section 4.05 Class 4: Kassiotis Claims...19 Section 4.06 Class 5: General Unsecured Claims...20 Section 4.07 Class 6: Intercompany Claims...20 Section 4.08 Class 7: Indemnification Claims...20 Section 4.09 Class 8: Interests...21 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...23 Section 5.04 Closing of the Chapter 11 Case...23 -i-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 3 of 45 ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS...23 Section 6.01 Distributions...23 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...25 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...26 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 Section 8.05 Junior Lender Claims...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...28 Section 9.03 Substantial Consummation...28 Section 9.04 Revocation or Withdrawal...28 Section 9.05 Plan Revocation or Failure...28 ARTICLE X AMENDMENTS AND MODIFICATIONS...29 ARTICLE XI RETENTION OF JURISDICTION...29 ARTICLE XII COMPROMISES AND SETTLEMENTS...31 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 Releases...33 -ii-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 4 of 45 Section 13.07 Exculpation...35 Section 13.08 Injunction...36 Section 13.09 Senior Lenders...37 Section 13.10 Votes Solicited in Good Faith...37 Section 13.11 Binding Effect...38 Section 13.12 Notices...38 Section 13.13 Setoffs...39 Section 13.14 Recoupment...39 Section 13.15 Term of Stays...39 Section 13.16 Release and Termination of Liens...39 Section 13.17 Dissolution of Committee...40 Section 13.18 Wind-Up of the Debtors...40 Section 13.19 No Admissions...40 Section 13.20 Governing Law...40 ARTICLE XIV CONFIRMATION REQUEST...40 -iii-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 5 of 45 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. 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 13.06, SECTION 13.07 AND SECTION 13.08 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 947 Filed in TXSB on 02/01/13 Page 6 of 45 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 Rights 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 Rights 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) Affiliate Funded Debt Obligations means (a) the financing provided by Glencore International A.G. to Tornado Navigation Inc; (b) the financing provided by Lloyds TSB Bank PLC to Blizzard Navigation Inc and Tornado Navigation Inc; (c) the financing provided by Bank of Scotland plc as Lender to Fire Navigation Inc and Hurricane Navigation Inc; (d) the financing provided by Bremer Landesbank Kreditanstalt Oldenburg Gigozentrale to Rain Navigation Inc and Lightning Navigation Inc; (e) the financing provided by Hyundai Mipo Dockyard Co., Ltd. to Rain Navigation Inc;. -2-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 7 of 45 (6) Affiliate Funded Debt Providers means, as to each of the financings described in the defined term Affiliate Funded Debt Obligations, the provider of such financing. (7) Affiliate Guarantees means the guarantees previously provided by Omega to the Affiliate Funded Debt Providers in respect of the facilities listed in clauses (a), (b) and (c) of the defined term Affiliate Funded Debt Obligations. (8) 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; (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; and (iv) when used in the context of a Professional Fees or Adequate Protection Rights, means any Professional Fees or Adequate Protection Rights that have been allowed by the Bankruptcy Court after application therefor. (9) Available Amounts means the following (in all cases subject to the prior rights and interests of the Escrow Agent pursuant to Section 6.07): (i) (A) with respect to the Allowed Budgeted Professional Fees of the Debtors, the Debtor Fees Payment and, in the case of Debtors Counsel, the Wrap-Up -3-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 8 of 45 Fees Payment and the Excess Payments (if any), and (B) with respect to the Allowed Budgeted Professional Fees of the Committee, the Committee Fees Payment; (ii) (A) with respect to any Allowed Unbudgeted Professional Fees of the Debtors, the balance (if any) of the Debtor Fees Payment, Wrap-Up Fees Payment and Excess Payments after payment of Allowed Budgeted Professional Fees of the Debtors, and (B) with respect to any Allowed Unbudgeted Professional Fees of the Committee, the balance (if any) of the Committee Fees Payment after payment of Allowed Budgeted Professional Fees of the Committee; (iii) (iv) with respect to OpEx, the OpEx Payment; with respect to Trustee Fees, the amount described in Section 2.01(4); (v) with respect to any Allowed Secured Claim in Class 4, the net amount of Equity Interests Proceeds attributable to the Omnicrom Share Pledge (if any); and (vi) with respect to all other Expenses and Claims after payment of Trustee Fees, out of the Equity Interests Proceeds (if any) and the $500,000 Payment in the following order of priority on a Pro Rata basis within each priority (to the extent there are no Expenses or Claims within a particular priority, such priority shall be omitted): (a) first, any remaining Allowed Budgeted Professional Fees of the Debtors and any remaining Allowed Budgeted Professional Fees of the Committee; (b) second, Junior Lender Claims entitled to payment pursuant to Section 4.03(3)(i) or Section 4.03(3)(ii); (c) third, any remaining Allowed Unbudgeted Professional Fees of the Debtors and any remaining Allowed Unbudgeted Professional Fees of the Committee; (d) fourth, Priority Claims in the order of their priority pursuant to Bankruptcy Code 507(a); and (e) fifth, Claims entitled to Distribution in Class 5; provided, however, that Excess Payments, as such term is described in (m)(v) of the SL Settlement, shall be dealt with as set forth in such (m)(v). (10) 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). (11) Ballot means the document for accepting or rejecting this Plan, in the form approved by the Bankruptcy Court. -4-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 9 of 45 (12) 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. (13) Bankruptcy Court means the United States Bankruptcy Court for the Southern District of Texas, Houston Division. (14) 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. (15) 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. (16) Budgeted means, with respect to all Professional Fees, Allowed amounts coming within clauses (iii) and (iv) of the Carve-Out. (17) 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. (18) Carve-Out means the Carve-Out as such term is defined in paragraph 11 of the Cash Collateral Order. (19) 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. (20) Cash Collateral Order means the order entered by the Bankruptcy Court in the Chapter 11 Case at Dkt. No. 101, as the same may be extended and modified from time to time. (21) 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, 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. (22) 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. -5-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 10 of 45 (23) Charter Claim means each of the Preserved Rights described in Section 5.02(2) together with any other claim 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. Pursuant to (f)(ii) of the SL Settlement, the Debtors have transferred all Charter Claims to the Senior Lenders except for such Charter Claims (if any) that the Senior Lenders decide to leave with the Debtors for prosecution for the benefit of the Senior Lenders at the Senior Lenders expense. (24) 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. (25) 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. (26) Class means a category of Claims or Interests as set forth in Section 3.04 and ARTICLE IV pursuant to Bankruptcy Code 1122. (27) 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. (28) Committee means the statutory official committee of unsecured creditors appointed in the Chapter 11 Case. (29) Confirmation means entry by the Bankruptcy Court of the Confirmation Order on the docket of the Chapter 11 Case. (30) 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. (31) 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. (32) Confirmation Order means the order entered by the Bankruptcy Court confirming this Plan pursuant to Bankruptcy Code 1129. (33) 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. (34) Creditor means any Person who holds a Claim against the Debtor. (35) Debtors means individually or collectively the following debtors and debtors in possession: Omega, Galveston Navigation Inc., Beaumont Navigation Inc., Carrolton Navigation -6-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 11 of 45 Inc., Decatur Navigation Inc., Elgin Navigation Inc., Fulton Navigation Inc., Orange Navigation Inc., Baytown Navigation Inc. and OUSA., and the term Debtors shall include the Debtors after the Effective Date in addition to the Debtors prior to the Effective Date. (36) 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. (37) Disallowed Claim means all or such part of a Claim that is disallowed by a Final Order of the Bankruptcy Court or other court of competent jurisdiction. (38) Disclosure Statement means the original Disclosure Statement for the Debtors 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. (39) 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. (40) 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. (41) 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. (42) Distribution Record Date has the meaning set forth in Section 6.05(1). (43) Distributions means all distributions required to be made pursuant to this Plan. (44) 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. -7-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 12 of 45 (45) Equity Interests means Omega s equity interests in OMIN, Omnicrom and OMAN. (46) Equity Interests Proceeds means the cash proceeds received as a result of the closing of the sale of the Equity Interests pursuant to the Equity Interests Sale Order. (47) Equity Interests Sale Order means the order of the Bankruptcy Court at Dkt. No. [ ] authorizing and directing the sale of the Equity Interests. (48) 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. (49) Escrow Agent means Bracewell & Giuliani LLP 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. (50) 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. (51) Estate means the estate created for the Debtors in the Chapter 11 Case pursuant to Bankruptcy Code 541. (52) 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; and (d) to the extent (and only to the extent) each Junior Lender consents to the Release Provisions, each Junior Lender, together in each case with each of their respective direct and indirect parent companies, subsidiaries and joint ventures and other Related Persons. (53) Executory Contract means an executory contract or unexpired lease within the meaning of Bankruptcy Code 365. (54) 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 Rights, Professional Fee Expenses and Trustee Fees. (55) Exhibit means an exhibit annexed to the Disclosure Statement or contained in a Plan supplement, as applicable, unless the context otherwise indicates. (56) File, Filed or Filing means file, filed or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Case. (57) 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 -8-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 13 of 45 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. (58) General Unsecured Claim means any Claim that is not Secured, an Other Unsecured Claim or entitled to priority under the Bankruptcy Code. (59) Holder means the beneficial holder of any Expense, Claim or Interest. (60) 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. (61) "Indemnification Claims" means a claim by any Related Person of any of the Debtors for indemnification 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 claims of the Escrow Agent as described in Section 6.07. (62) Insiders means, together, (a) OII in its capacity as the Holder of the OII Note and (b) Kassiotis in his capacity as the Holder of the Kassiotis Claims. (63) 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. (64) 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. (65) Junior Lenders means the lenders under the Junior Facilities Agreement. (66) Junior Lender Claims means collectively, the Expenses and Claims of the Junior Lenders. (67) Kassiotis means George Kassiotis, the Chief Executive Officer and largest shareholder of Omega. (68) Kassiotis Claim(s) means, individually or collectively as the context requires, the Kassiotis Prepetition Claim, Kassiotis Priority Claim and Kassiotis Severance Claim. (69) Kassiotis Prepetition Claim means the non-priority portion of the Claim of Kassiotis for unpaid contractual compensation. (70) Kassiotis Priority Claim means the Bankruptcy Code 507(a)(4) portion of the Claim of Kassiotis for unpaid contractual compensation. -9-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 14 of 45 (71) Kassiotis Severance Claim means 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. (72) 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. (73) OII means ONE Investments, Inc., a Marshall Islands limited liability company. (74) 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 and secured by the Omnicrom Stock Pledge and the Omnicrom Guarantee. (75) OII Note Claim means the Allowed Claim under the OII Note. (76) 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. (77) Omega means Omega Navigation Enterprises, Inc., one of the Debtors. (78) OMIN means Omega Investments Ltd., a non-debtor wholly-owned subsidiary of Omega. (79) Omnicrom means Omnicrom Holdings Ltd., a non-debtor wholly-owned subsidiary of Omega. (80) Omnicrom Share Pledge means the pledge by Omega of the Omnicrom Shares to secure the OII Note. (81) Omnicrom Shares means 100% of the equity interests in Omnicrom. (82) OpEx means OpEx as such term is defined in (b) of the Settlement Agreement. (83) Other Secured Claim means any Secured Claim against a Debtor other than the Senior Secured Claims. The only Other Secured Claims, if any, are valid and enforceable priming maritime liens, which, pursuant to 36 and 37 of the SL Settlement Order, remain secured by the Vessels notwithstanding the transfer of the Vessels to the Senior Lenders. (84) OUSA means Omega Navigation (USA) LLC, one of the Debtors. (85) 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. -10-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 15 of 45 (86) 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. (87) Plan means this Debtors 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. (88) 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 or this Plan. (89) 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). (90) Priority Tax Claim means a Claim that is entitled to priority pursuant to Bankruptcy Code 507(a)(8). (91) 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. (92) 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. (93) 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 13.17, 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. (94) Proof of Claim means a Proof of Claim that is Filed by a Holder of a Claim. (95) Record Date means the record date fixed by the Bankruptcy Court in accordance with Rule 3018(a) of the Federal Rules of Bankruptcy Procedure. (96) 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 -11-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 16 of 45 or through any of them (including their respective present and former officers, directors, managers, shareholders, partners, employees, members and professionals). (97) Release Provisions means, collectively, Section 13.06, Section 13.07 and Section 13.08. (98) 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. (99) 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. (100) Senior Lenders means the Senior Lenders and the Senior Facilities Agent, as each such term is used in the SL Settlement Order. (101) SL $500,000 Payment means the $500,000 Payment as such term is defined in (a)(i) of the SL Settlement. (102) SL Committee Fees Payment means the Committee Fees Payment as such term is defined in (a)(ii) of the SL Settlement. (103) SL Debtor Fees Payment means the Debtor Fees Payment as such term is defined in (a)(ii) of the SL Settlement. (104) SL OpEx Payment means the OpEx Payment as such term is defined in (b) of the SL Settlement. (105) 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. (106) 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. (107) SL Settlement Order means the Order and Opinion of the Bankruptcy Court at Dkt. No. 922. (108) SL Wrap-Up Fees Payment means the Wrap-Up Fees Payment as such term is defined in (a)(ii) of the SL Settlement. -12-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 17 of 45 (109) Trustee Fees means all Expenses of the United States Trustee chargeable to the Estates pursuant to 28 U.S.C. 1930. (110) Unbudgeted means Professional Fees that were not Budgeted. (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 & Giuliani LLP. (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 the Debtors counsel. 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. -13-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 18 of 45 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 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, release, settlement, and discharge of and in exchange for such Allowed Professional -14-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 19 of 45 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, either out of cash on hand (prior to the transfer of the final Vessel to the Senior Lenders) or out of the $500,000 Payment. Section 2.02 Junior Lender Adequate Protection Rights For convenience, the Adequate Protection Rights (if any) of the Junior Lenders are included in Class 2. Such inclusion in Class 2 shall not be construed as an admission that the Junior Lenders have or are entitled to receive payment on any Adequate Protection Rights. Section 2.03 Priority Tax Claims The Debtors do not have any Allowed Priority Tax Claims. Section 2.04 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 3.01 Introduction ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS The categories of Claims and Interests set forth below classify Claims and Interests for all purposes, including for purposes of voting, confirmation, and Distributions pursuant to this Plan -15-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 20 of 45 and Bankruptcy Code 1122 and 1123(a)(l). A Claim or Interest shall be deemed classified in a particular Class only to the extent that it qualifies within the description of such Class, and shall be deemed classified in other Classes to the extent that any portion of such Claim or Interest qualifies within the description of such other Classes. Notwithstanding anything to the contrary in this Plan, a Claim or Interest shall be deemed classified in a Class only to the extent that such Claim or Interest has not been paid, released, or otherwise settled prior to the Effective Date. Section 3.02 Voting; Acceptance by Impaired Classes Each Impaired Class of Claims that will (or may) receive or retain property or any interest in property under this Plan shall be entitled to vote to accept or reject this Plan. An Impaired Class of Claims shall have accepted this Plan if (i) the Holders (other than any Holder designated under Bankruptcy Code 1126(e)) of at least two-thirds in amount of the Allowed Claims actually voting in such Class have voted to accept this Plan and (ii) the Holders (other than any Holder designated under Bankruptcy Code 1126(e)) of more than one-half in number of the Allowed Claims actually voting in such Class have voted to accept this Plan. An Impaired Class of Interests shall have accepted this Plan if the Holders (other than any Holder designated under Bankruptcy Code 1126(e)) of at least two-thirds in amount of the Allowed Interests actually voting in such Class have voted to accept this Plan. Section 3.03 Empty Classes To the extent there are no Persons in a particular Class, such Class shall be deemed to have accepted this Plan; provided, however, that such accepting Class shall not satisfy the requirement of Bankruptcy Code 1129(a)(10). Section 3.04 Identification of Claims and Interests The following table designates the Classes of Claims against, and Interests in, the Debtors, other than Administrative Expenses and Priority Tax Claims, and specify which of those Classes and Interest are (a) Impaired or Unimpaired by this Plan; (b) entitled to vote to accept or reject this Plan in accordance with Bankruptcy Code 1126; and (c) deemed to accept or reject this Plan. Type of Allowed Class Claim or Interest 1 Priority Non-Tax Claims Impairment Unimpaired Voting Rights Deemed to accept 2 Junior Lender Claims Impaired Entitled to vote 3 OII Note Claim Impaired Entitled to vote -16-
Case 11-35926 Document 947 Filed in TXSB on 02/01/13 Page 21 of 45 Class Type of Allowed Claim or Interest Impairment Voting Rights 4 Kassiotis Claims Impaired Entitled to vote 5 General Unsecured Claims 6 Intercompany Claims 7 Indemnification Claims Impaired Impaired Impaired Entitled to vote Deemed to reject Deemed to reject 8 Interests Impaired Deemed to reject Section 4.01 Mechanics of Payments ARTICLE IV TREATMENT OF CLAIMS AND INTERESTS All payments under this Plan shall be made exclusively out of the Available Amounts (if any) in respect of the Expense or Claim being paid. Section 4.02 Class 1: Priority Non-Tax Claims (1) Classification. Class 1 consists of all Allowed Priority Non-Tax Claims against the respective Debtor. (2) Treatment. The only Allowed Priority Not-Tax Claim is the Kassiotis Priority Claim, which is dealt with in Class 4. Section 4.03 Class 2: Junior Lender Claims (1) Classification. Class 2 consists of all Allowed Junior Lender Claims against the Debtors. (2) Adjudication of Claims. If pursuant to Section 8.05(2), the Junior Lenders timely file an application of the type referred to in such Section and there is a timely objection thereto, the Bankruptcy Court will adjudicate the Adequate Protection Rights (if any) of the Junior Lenders. If pursuant to Section 8.05(1), there is a timely objection to payment on the Junior Lenders Deficiency Claims, the Bankruptcy Court will adjudicate the Junior Lenders rights to payment on such Deficiency Claims. -17-