B+H Ocean 2nd Amended Plan

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Nicholas F. Kajon John D. Demmy Constantine D. Pourakis STEVENS & LEE, P.C. 485 Madison Avenue, 20th Floor New York, New York 10022 Telephone: (212) 319-8500 Facsimile: (212) 319-8505 nfk@stevenslee.com jdd@stevenslee.com cp@stevenslee.com Attorneys for the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------In re: B+H OCEAN CARRIERS LTD., et al., Debtors. ------------------------------------------------------x : Chapter 11 : : : Case No. 12-12356 (SCC) : Jointly Administered : x
Dated: December 17, 2012
SECOND AMENDED JOINT PLAN OF REORGANIZATION OF THE DEBTORS UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
NOTHING CONTAINED IN THIS DOCUMENT SHALL CONSTITUTE AN OFFER, ACCEPTANCE OR A LEGALLY BINDING OBLIGATION OF THE DEBTORS OR ANY OTHER PARTY IN INTEREST AS THIS PLAN REMAINS SUBJECT TO APPROVAL BY THE BANKRUPTCY COURT AND OTHER CUSTOMARY CONDITIONS. THIS PLAN IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN OF REORGANIZATION PURSUANT TO SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL BE MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. YOU SHOULD NOT RELY ON THE INFORMATION CONTAINED IN OR THE TERMS OF THIS PLAN FOR ANY PURPOSE PRIOR TO THE CONFIRMATION OF THIS PLAN BY THE BANKRUPTCY COURT. THE INFORMATION CONTAINED IN THIS PLAN IS PRELIMINARY AND DEVELOPMENTS MAY OCCUR THAT REQUIRE MODIFICATIONS, ADDITIONS, OR DELETIONS TO THIS PLAN.
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TABLE OF CONTENTS ARTICLE I INTRODUCTION AND GENERAL FRAMEWORK OF THE PLAN ..........................2 ARTICLE II DEFINITIONS .................................................................................................................5 ARTICLE III ADMINISTRATIVE EXPENSE AND PRIORITY TAX CLAIMS ...........................25 Section 3.1 Section 3.2 Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 Section 4.6 Section 4.7 Section 4.8 Section 4.9 Administrative Expenses. ................................................................................25 Priority Tax Claims. ........................................................................................27 Classification. . ...............................................................................................27 BHO (B+H Ocean Carriers Ltd.) (Classes A1 through A4). ...........................28 OBOH (OBO Holdings Ltd.) (Classes B1 through B4). .................................29 OBO1 (BHOBO One Ltd.) (Classes C1 through C4)......................................29 OBO2 (BHOBO Two Ltd.) (Classes D1 through D4).....................................30 OBO3 (BHOBO Three Ltd.) (Classes E1 through E4)....................................30 Protrans (Product Transport Corp.) (Classes F1 through F4). .........................30 RMJ (RMJ OBO Shipping Ltd.) (Classes G1 through G4). ............................31 Seapowet (Seapowet Shipping Ltd.) (Classes H1 through H4).......................31
ARTICLE IV CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS ................................27
Section 4.10 Seasak (Seasak Trading Ltd.) (Classes I1 through I4).....................................32 Section 4.11 Straits (Straits Offshore Ltd.) (Classes J1 through J4). ...................................32 Section 4.12 Sakonnet (Sakonnet Shipping Ltd.) (Classes K1 through K4). .......................32 ARTICLE V TREATMENT OF CLAIMS AND EQUITY INTERESTS..........................................33 Section 5.1 Section 5.2 Section 5.3 Section 5.4 Treatment of Other Priority Claims and Other Secured Claims Common to All Debtors...................................................................................33 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against All Debtors Except Sakonnet. .............................34 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against Sakonnet. .............................................................37 Treatment of Equity Interests Against All Debtors (Classes A4 through K4)......................................................................................................38 -i-
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Section 5.5 Section 5.6 Section 5.7 Section 6.1 Section 6.2 Section 6.3 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9
Nonconsensual Confirmation. .........................................................................39 Elimination of Vacant Classes. .......................................................................39 Intercompany Claims. ......................................................................................39 Distributions From the Third Party Release Fund. .........................................39 Distribution Record Date. ...............................................................................40 Manner of Payment. ........................................................................................40 Disbursement Agent. .......................................................................................40 Delivery of Distributions. ...............................................................................40 Allocation of Distributions Between Principal and Interest. ..........................40 No Postpetition Interest on Claims. ................................................................41 No Distribution in Excess of Allowed Amount of Claim. ..............................41 Distributions with Respect to Disputed Claims. .............................................41
ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS.......................................................39
Section 6.10 Distributions with Respect to Defendants. ......................................................41 Section 6.11 Disputed Payments. .........................................................................................41 Section 6.12 Setoffs. ............................................................................................................41 Section 6.13 Unclaimed Distributions and Time Bar to Cash Payments. ...........................42 Section 6.14 Distributions Free and Clear. . .........................................................................42 Section 6.15 De Minimis Distributions. ..............................................................................42 Section 6.16 Transfer of Assets Under Plan. .......................................................................43 ARTICLE VII MEANS FOR IMPLEMENTATION..........................................................................43 Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Compromises and Settlements. .......................................................................43 Plan Administrator. .........................................................................................44 Steering Committee. .......................................................................................46 Administrative and Priority Claims Reserve. .................................................47 General Unsecured Claims Reserve. ...............................................................47 Professional Claims Reserve............................................................................47 Causes of Action and Accounts Receivable. ...................................................47 Effectuating Documents and Further Transactions. ........................................48 - ii -
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Section 7.9
Authority to Act. . ............................................................................................48
Section 7.10 Operations During Post-Confirmation Period. ...............................................48 ARTICLE VIII PROCEDURES FOR DISPUTED CLAIMS ............................................................49 Section 8.1 Section 8.2 Section 8.3 Section 9.1 Section 9.2 Section 9.3 Section 9.4 Objections to Claims. ......................................................................................49 Estimation of Claims Post-Effective Date. ......................................................49 Settlement of Disputed Claims. . .....................................................................50 Assumption and Rejection of Executory Contracts and Unexpired Leases...............................................................................................................50 Objections to Rejection. ..................................................................................50 Rejection Damage Claims. ..............................................................................51 Modifications. .................................................................................................51
ARTICLE IX EXECUTORY CONTRACTS AND UNEXPIRED LEASES ....................................50
ARTICLE X CONDITIONS PRECEDENT .......................................................................................52 Section 10.1 Conditions Precedent to the Confirmation Date. ...........................................52 Section 10.2 Conditions Precedent to the Effective Date. ...................................................52 Section 10.3 Waiver of Conditions Precedent. ....................................................................53 ARTICLE XI EFFECT OF CONFIRMATION ..................................................................................53 Section 11.1 Vesting of Assets. ...........................................................................................53 Section 11.2 Binding Effect. ................................................................................................53 Section 11.3 Injunction Against Interference with the Plan. ...............................................53 Section 11.4 Term of Injunctions or Stays Arising Under or Entered During the Chapter 11 Cases. ............................................................................................54 Section 11.5 Exculpation. . ...................................................................................................54 Section 11.6 Releases............................................................................................................54 Section 11.7 Injunction. . ......................................................................................................56 Section 11.8 Exclusions and Limitations on Exculpation, Indemnification, and Releases. ..........................................................................................................56 Section 11.9 Dissolution of Creditors Committee. ............................................................56 Section 11.10 Post-Effective Date Services By Debtors Professionals.................................57 - iii -
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ARTICLE XII RETENTION OF JURISDICTION ............................................................................57 Section 12.1 Retention of Jurisdiction. ................................................................................57 ARTICLE XIII MISCELLANEOUS PROVISIONS..........................................................................59 Section 13.1 Payment of Statutory Fees. . ............................................................................59 Section 13.2 Substantial Consummation. . ...........................................................................59 Section 13.3 Exemption from Transfer Taxes. . ...................................................................59 Section 13.4 Determination of Tax Liabilities. ....................................................................60 Section 13.5 Withholding and Reporting Requirements. . ...................................................60 Section 13.6 Modification and Amendment. .......................................................................60 Section 13.7 Severability. ....................................................................................................61 Section 13.8 Notice of Entry of Confirmation Order and Relevant Dates. .........................61 Section 13.9 Courts of Competent Jurisdiction. ..................................................................61 Section 13.10 No Admissions. ...............................................................................................61 Section 13.11 Currency. .........................................................................................................61 Section 13.12 Governing Law. ..............................................................................................62 Section 13.13 Schedules, Exhibits and Supplements. ............................................................62 Section 13.14 Notices. ...........................................................................................................62 Section 13.15 Counterparts. ...................................................................................................62
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EXHIBIT A TERM SHEET WITH MACQUARIE EXHIBIT B TERM SHEET WITH SCOTIABANK EXHIBIT C FORM OF PLAN ADMINISTRATOR AGREEMENT EXHIBIT D CREDITORS COMMITTEE SUPPORT LETTER
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INTRODUCTION AND GENERAL FRAMEWORK OF THE PLAN The Debtors hereby propose the following second amended joint chapter 11 plan of reorganization pursuant to section 1121(a) of title 11 of the United States Code. Capitalized terms used in this Plan are defined in Article 1 below. The Plan is being proposed by the Debtors, and enjoys the full support of the Creditors Committee and the Debtors two secured lenders, Macquarie and Scotiabank. No solicitation materials other than the Disclosure Statement and related materials transmitted herewith and approved by the Bankruptcy Court have been authorized by the Bankruptcy Court for use in soliciting acceptances or rejections of the Plan. The Plan constitutes a joint plan of reorganization for the eleven Debtors. Although the Chapter 11 Cases are jointly administered pursuant to an order of the Bankruptcy Court, the Plan does not provide for the substantive consolidation of the Debtors Estates, i.e., the integrity of the separate Debtor estates is being observed in all respects. The Plans overall objective is to liquidate and Distribute all Assets of the Debtors to holders of Allowed Claims and Allowed Unclassified Claims in satisfaction of the Debtors obligations, with the following key features: 1. The Plan contemplates Distributions to Creditors based on the priorities established by the Bankruptcy Code, after giving effect to the settlements (i) between Scotiabank and the Creditors Committee, with respect to which the Debtors fully support, as set forth and described in the Scotiabank Plan Term Sheet, (ii) between the Debtors and Macquarie as set forth and described in the Macquarie Plan Term Sheet, with respect to which the Creditors Committee fully supports, and (iii) among the Debtors, Macquarie, Scotiabank and the Hudner Released Parties as set forth and described in this Plan, with respect to which the Creditors Committee fully supports. 2. The holders of Administrative Expense Claims, Priority Tax Claims and Other Priority Claims against each of the Debtors other than Debtor Sakonnet Shipping Ltd. shall receive Distributions in full in Cash on the Effective Date of the Plan from the Cash held by the Estate (which Cash is subject to liens in favor of Macquarie, and, thus is Macquaries Cash Collateral, but which Macquarie is making available to pay such Administrative Expense, Priority Tax and Other Priority Claims, pursuant to the Macquarie Plan Term Sheet and the Plan). 3. The Macquarie Secured Claim shall receive the treatment set forth in the Macquarie Plan Term Sheet, which consists, generally, of: (i) after Distributions in full have been made to the holders of Administrative Expense Claims, Priority Tax Claims and Other Priority Claims of each of the Debtors other than Debtor Sakonnet Shipping Ltd. from Macquaries Cash Collateral, and after the funding of the Administrative and Priority Claims Reserve Amount by the Plan Administrator, the remainder of Macquaries Cash Collateral shall be distributed to Macquarie; and (ii) subject to 2
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the Macquarie Settlement Contribution, Macquaries receipt of the proceeds of the dispositions of the vessels Searose G, RIP Hudner and Roger M. Jones, including each such vessels Related Equipment (as defined below). The Macquarie Deficiency Claim shall receive treatment in accordance with the Macquarie Plan Term Sheet which, generally, provides for subordination of the Macquarie Deficiency Claim to the Claims of General Unsecured Creditors until such time that $4 million becomes distributable to General Unsecured Creditors. 4. The holders of Administrative Expense Claims (including Claims under section 503(b)(9) of the Bankruptcy Code), Priority Tax Claims and Other Priority Claims against Sakonnet shall receive Distributions in full in Cash on the Effective Date of the Plan from Cash to be made available to the Estate by Scotiabank in accordance with the Scotiabank Plan Term Sheet. Pursuant to the Scotiabank Plan Term Sheet, Scotiabank will pay 503(b)(9) Claims against Debtor Sakonnet Shipping Ltd. up to $10,000.00, crew wage claims including contract termination wages, and will provide an additional $50,000.00 in Cash to Sakonnet to fund Administrative Expense Claims, Priority Tax Claims and Other Priority Claims, which Cash is subject to refund to Scotiabank as set forth in the Scotiabank Plan Term Sheet. Scotiabanks Secured Claim shall receive the treatment set forth in the Scotiabank Plan Term Sheet which consists, generally, of Scotiabanks receipt of all the proceeds of the disposition of the vessel Sakonnet, including such vessels Related Equipment. Scotiabanks Deficiency Claim shall receive treatment in accordance with the Scotiabank Plan Term Sheet which, generally, provides for subordination of the Scotiabank Deficiency Claim against Debtor Sakonnet Shipping Ltd. to the Claims of General Unsecured Creditors until such time that $300,000 becomes distributable to General Unsecured Creditors of Debtor Sakonnet Shipping Ltd. 5. Each holder of an Allowed General Unsecured Claim will receive, from the Debtor against which it holds such Allowed General Unsecured Claim, (i) Distribution of Specified Settlement Assets, if any, and (ii) Distribution of General Settlement Assets pursuant to a hybrid (Pro Rata/equal division) formula as follows: (a) 50% to be divided among all Debtors Pro Rata based on the amount of Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) against each Debtor; and (b) 50% to be divided equally between each Debtor, with the exception of solvent Debtors and Debtors without Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) (such excluded Debtors are expected to be OBOH, Seapowet, Seasak and Straits), in each case with any excess General Settlement Assets at any particular Debtor that remains after paying all of its Allowed Claims in full (other than any Allowed Claims held by Macquarie or Scotiabank) being distributed to such other participating Debtors equally. Notwithstanding the foregoing, all Specified Settlement Assets and General Settlement Assets to the extent that they are included in the Third Party Release Fund will not be available for Distribution to those Creditors who vote to reject the Plan or who opt out of the Third Party Release Fund. Only holders of Allowed General Unsecured Claims that either (i) do not vote to reject this Plan, or (ii) abstain from voting and do not affirmatively elect to opt-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, shall share in the Third Party Release Fund. To the extent that the holder of an Allowed General Unsecured Claim either (i) votes to reject this Plan, or (ii) abstains from voting and affirmatively opts-out of the Release by Holders of Claims and Released 3
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Parties set forth in Section 11.6(b) of this Plan, then such holder shall not receive any Distribution from the Third Party Release Fund. The Debtors believe that the Third Party Release Fund will be approximately $2.4 million to $2.6 million, which is estimated to constitute between 72% and 76% of the value available for Distribution to holders of Allowed General Unsecured Claims who do not vote to reject the Plan or who do not affirmatively opt-out of the Third Party Release Fund, assuming that no creditors vote to reject the Plan or opt-out of the Third Party Release Fund. Creditors who vote to reject the Plan or who affirmatively elect to opt-out of the Third Party Release will not participate in the Third Party Release Fund. At the Confirmation Hearing, the Debtors will demonstrate that the third party releases contemplated under the Plan are important and necessary to the success of the Plan. 6. The Debtors shall remain in existence after the Effective Date, except that the Debtors board of directors and management shall no longer control the Debtors. Instead, a Plan Administrator shall be appointed on the Effective Date of the Plan to wind up the Debtors affairs, prosecute Causes of Action, and resolve all outstanding Claims not previously Allowed or Disallowed prior to the Effective Date. The Plan Administrator shall be vested with the rights and obligations of a chapter 11 trustee. The Plan Administrator shall be relieved of its duties once all Final Distributions have been made, all Debtors have been dissolved under applicable law, and the Bankruptcy Court has entered a final decree closing all of the Chapter 11 Cases. Michael S. Hudner will remain available for consultation with the Plan Administrator, but Mr. Hudner will not be part of the Debtors management or exercise any control over the Debtors following the Effective Date. 7. Vote tabulation in connection with Plan confirmation shall be completed on a Debtorby-Debtor basis. If the Plan is not confirmed as to a particular Debtor, such Debtors Chapter 11 Case shall be converted to a case under chapter 7 of the Bankruptcy Code with Allowed Claims against such Debtor likely receiving reduced recoveries as a result of the chapter 7 administrative costs (including chapter 7 trustees commissions and the fees of a chapter 7 trustees professionals) and the unavailability to holders of General Unsecured Claims of the value represented by the Scotiabank-Sakonnet EBC Arbitration Claim, contributed by Scotiabank, and the Third Party Release Fund, which value is being contributed by Macquarie and the Hudner Released Parties, but only in connection with the terms and provisions of this Plan, and some or all of which would not be available in a chapter 7 case. 8. THE CREDITORS COMMITTEE BELIEVES THAT THE PLAN PROVIDES TREATMENT OF GENERAL UNSECURED CLAIMS THAT IS FAIR AND EQUITABLE. THE CREDITORS COMMITTEE, REPRESENTING THE INTERESTS OF ALL UNSECURED CREDITORS OF THE DEBTORS, SUPPORTS CONFIRMATION OF THE PLAN AND, THEREFORE, RECOMMENDS THAT ALL CREDITORS REVIEW THE PLAN AND DISCLOSURE STATEMENT ENCLOSED HEREWITH AND VOTE TO ACCEPT THE PLAN. A LETTER FROM THE CREDITORS COMMITTEE SETTING FORTH ITS SUPPORT OF, AND RECOMMENDATION TO ACCEPT, THE PLAN IS ATTACHED HERETO AS EXHIBIT D. 4
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9. The Debtors believe that the Plan is in the best interest of holders of Claims and recommend that all such holders whose votes are being solicited vote to accept the Plan. Creditors will receive far more if the Plan is confirmed than they would receive in a liquidation under chapter 7. Moreover, Creditors who do not opt-out of the Third Party Release Fund will receive far more than Creditors who do opt-out. ARTICLE II DEFINITIONS Definitions. As used in the Plan, the following terms shall have the meanings set forth below: Section 2.1 ADM Arbitration means that certain arbitration between Algonquin Shipping Ltd., a wholly-owned indirect non-Debtor subsidiary of BHO, and Archer Daniels Midland. Section 2.2 ADM Arbitration Allocation means, pursuant to the Macquarie Plan Term Sheet, the proceeds from the ADM Arbitration specifically allocated to the Estates. Section 2.3 Administrative and Priority Claims Reserve means the account to be established if necessary by the Plan Administrator and funded with the Administrative and Priority Claims Reserve Amount pursuant to Section 7.4 of the Plan. Section 2.4 Administrative and Priority Claims Reserve Amount means an amount equal to (a) the aggregate amount of all Administrative Expense Claims that are Allowed on the Effective Date (excluding Professional Claims), (b) the aggregate amount of all Priority Tax Claims that are Allowed on the Effective Date, (c) the aggregate amount of all Other Priority Claims that are Allowed on the Effective Date, and (d) the aggregate amount of all Disputed Administrative Expense Claims (excluding Professional Claims), Disputed Priority Tax Claims, and Disputed Other Priority Claims. For the avoidance of doubt, the Administrative and Priority Claims Reserve Amount shall not include Distributions in an amount equal to the Macquarie Administrative Claim or Scotiabank Administrative Claim. Section 2.5 Administrative Expense Claim means any right to payment constituting a cost or expense of administration of any of the Chapter 11 Cases Allowed under and in accordance with, as applicable, sections 330, 364, 365, 503(b), 507(a)(2), and 507(b) of the Bankruptcy Code, including, without limitation, any actual and necessary costs and expenses of preserving the Debtors Estates and Professional Claims (to the extent unpaid). For the avoidance of doubt, an Administrative Expense Claim shall not include the Macquarie Administrative Claim or Scotiabank Administrative Claim. 5
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Section 2.6 Administrative Expense Claim Bar Date means the deadline for the filing of proofs of Administrative Expense Claims in the Chapter 11 Cases, which shall be the date that is the first Business Day thirty (30) days after the Effective Date or such other date as may be fixed by the Bankruptcy Court. Section 2.7 Allowed means, (i) with reference to any Claim, (a) any Claim against a Debtor which has been listed by a Debtor in its Schedules, as such Schedules may be amended by a Debtor from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent and for which no contrary proof of claim has been filed, (b) any Claim allowed hereunder, (c) any Claim which is not Disputed, (d) any Claim that is compromised, settled or otherwise resolved pursuant to a Final Order of the Bankruptcy Court or under the Plan, or (e) any Claim which, if Disputed, has been Allowed by Final Order; provided, however, that Claims allowed solely for the purpose of voting to accept or reject the Plan pursuant to an order of the Bankruptcy Court shall not be considered Allowed Claims hereunder, and (ii) with reference to any Equity Interest, (a) any Equity Interest as of the Confirmation Date and (b) either not timely objected to or Allowed by Final Order. Unless otherwise specified herein or by order of the Bankruptcy Court, Allowed Administrative Expense Claim or Allowed Claim shall not, for any purpose under the Plan, include interest, punitive damages or any fine or penalty on such Administrative Expense Claim or Allowed Claim from and after the Petition Date. For purposes of determining the amount of an Allowed Claim, there shall be deducted therefrom an amount equal to the amount of any claim which a Debtor may hold or assert against the holder thereof, to the extent such claim may be set off pursuant to sections 502(d) or 553 of the Bankruptcy Code. Section 2.8 Assets means all tangible and intangible assets of every kind and nature of the Debtors and the Estates, including, without limitation, Causes of Action and all proceeds thereof, existing as of the Effective Date. Section 2.9 Ballot means the form or forms distributed to holders of impaired Claims and Equity Interests on which is to be indicated such holders acceptance or rejection of the Plan. Section 2.10 Bankruptcy Code means title 11 of the United States Code, as amended from time to time, as applicable to the Chapter 11 Cases. Section 2.11 Bankruptcy Court means the United States Bankruptcy Court for the Southern District of New York having jurisdiction over the Chapter 11 Cases, and to the extent of any reference made under section 157 of title 28 of the United States Code, the unit of such District Court having jurisdiction over the Chapter 11 Cases under section 151 of title 28 of the United States Code. Section 2.12 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States 6
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Code, as amended from time to time, applicable to the Chapter 11 Cases, and any local rules of the Bankruptcy Court. Section 2.13 BHM means B+H Management Ltd., a non-Debtor affiliate of the Debtors.
Section 2.14 BHM Management Agreement means that certain Management Services Agreement dated June 27, 1988 and amended on October 10, 1995 and June 1, 2009, and all agreements relating thereto including without limitation any assignment agreements thereunder or any agency agreements relating thereto. Section 2.15 BHO means Debtor B+H Ocean Carriers Ltd.
Section 2.16 Bonnie Smithwick Vessel means the ore-bulk-carrier Bonnie Smithwick, formerly operated by OBO1 and sold in April 2012. Section 2.17 Brokerage and Incentive Agreement means the agreement among the Debtors, Macquarie and BHM pursuant to which the Debtors will pay, from Macquarie Cash Collateral, a brokerage and incentive fee to BHM upon disposition of the Macquarie Collateral Vessels, which agreement was approved by order dated November 13, 2012 [Docket No. 267]. Section 2.18 Business Day means any day other than a Saturday, a Sunday, a legal holiday as such term is defined in Bankruptcy Rule 9006(a), or any other day on which banking institutions in New York, New York; London, United Kingdom; Paris, France; or Hamburg, Germany are required or authorized to close by law or executive order. Section 2.19 Cash means legal tender of the United States of America and of such other jurisdictions in whose currency the Debtors hold Assets, as applicable. Section 2.20 Cash Reconciliation means the reconciliation of remaining Cash, after taking into account the extent to which any cash that was used by the Debtors prior to or after the Confirmation Date was traceable to the proceeds of any particular asset, and specifying which Cash constitutes Macquarie Collateral and which Cash should either be Distributed to other Classes or be used to fund various reserves to be established under the Plan. Section 2.21 Bankruptcy Code. Cash Collateral has the meaning set forth in section 363(a) of the
Section 2.22 Causes of Action means any and all rights, actions, proceedings, causes of action, suits, demands, rights to legal remedies, rights to equitable remedies, rights to payment, and claims, whether known, unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent, noncontingent, matured, unmatured, disputed, undisputed, secured, or unsecured, and whether asserted or assertable directly or derivatively in law, equity, or otherwise, of the Debtors or the Estates, existing as of the Effective Date, unless otherwise waived or released 7
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pursuant to the Plan, the Confirmation Order, a Final Order or by the Plan Administrator, including, without limitation, any recharacterization, subordination, avoidance or other claim arising under or pursuant to section 105 or chapter 5 of the Bankruptcy Code or under any other similar provisions of applicable state or federal law. For the avoidance of doubt, the term Causes of Action does not include the Scotiabank-Sakonnet EBC Arbitration Claim or the ADM Arbitration; and any and all Causes of Action against Macquarie and Scotiabank are forever waived and released pursuant to the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, and the Plan. Section 2.23 Chapter 11 Cases means the cases commenced by the Debtors pursuant to chapter 11 of the Bankruptcy Code which are jointly administered under the caption In re B+H Ocean Carriers Ltd., et al., Case No. 12-12356 (SCC). Section 2.24 Claim has the meaning set forth in section 101(5) of the Bankruptcy Code.
Section 2.25 Claims Bar Date Order means the Order Establishing Deadlines and Procedures for Filing Proofs of Claim and Approving the Form and Manner of Notice Thereof, entered by the Bankruptcy Court on September 5, 2012 [Docket No. 184]. Section 2.26 Claims Objection Deadline means the date that is the first Business Day that is one hundred eighty (180) days after the Effective Date, subject to extension from time to time by order of the Bankruptcy Court. Section 2.27 Class means any group of substantially similar Claims or Equity Interests, classified in Article III of the Plan pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code. Section 2.28 Collateral means any property or interest in property of the Estate of any Debtor subject to a lien, charge or other encumbrance to secure the payment or performance of a Claim, which lien, charge or other encumbrance is not subject to avoidance or otherwise invalid under the Bankruptcy Code or applicable nonbankruptcy law. Section 2.29 Confirmation Date means the date on which the Confirmation Order is entered on the docket maintained by the clerk of the Bankruptcy Court. Section 2.30 Confirmation Hearing means the hearing to be held by the Bankruptcy Court pursuant to section 1128 of the Bankruptcy Code to consider confirmation of the Plan, as such hearing may be adjourned or continued from time to time. Section 2.31 Confirmation Objection Deadline means the deadline to be established by the Bankruptcy Court pursuant to the Confirmation Scheduling Order for the filing and service by any and all parties in interest of objections to confirmation of the Plan.
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Section 2.32 Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, which order shall be in form and substance satisfactory to the Debtors, the Creditors Committee, and the Lenders. Section 2.33 Confirmation Scheduling Order means the order to be entered by the Bankruptcy Court (a) scheduling the Confirmation Hearing, (b) establishing the deadline to accept or reject the Plan, and (c) establishing the Confirmation Objection Deadline. Section 2.34 Creditor means the holder of a Claim against a Debtor.
Section 2.35 Creditors Committee means the statutory committee of unsecured creditors appointed in the Chapter 11 Cases by the United States Trustee on June 14, 2012, as such committee may be reconstituted from time to time. Section 2.36 Critical Vendors has the meaning set forth in that certain Order Granting Debtors Motion (I) Authorizing the Debtors to Pay or Honor Prepetition Obligations to Foreign Vendors, Service Providers and Governments and Certain Critical Vendors, and (II) Authorizing Financial Institutions to Honor All Related Checks and Electronic Payment Requests, dated August 1, 2012 [Docket No. 116]. Section 2.37 Debtors means, collectively, BHO, OBO1, OBO2, OBO3, RMJ, Sakonnet, Straits, Seapowet, OBOH, Seasak, and Protrans, as debtors and debtors in possession in their Chapter 11 Cases pursuant to sections 101(13), 1107(a) and 1108 of the Bankruptcy Code. Section 2.38 Debtor means one of the Debtors in its individual capacity as a debtor and debtor in possession in its Chapter 11 Case pursuant to sections 101(13), 1107(a) and 1108 of the Bankruptcy Code. Section 2.39 Deficiency Claim means that portion of a Claim, secured by a lien on property of the Estate, which exceeds the value of such property, determined in accordance with section 506(a) of the Bankruptcy Code. Section 2.40 Disallowed means, with respect to a Claim, any Claim that has been disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court. Section 2.41 Disbursement Agent means any entity, including the Debtors and the Plan Administrator, designated by the Plan or by the Plan Administrator, to make a transfer or Distribution required under the Plan. Section 2.42 Disclosure Statement means the written disclosure statement, dated October 2, 2012, relating to the Plan, including, without limitation, all exhibits and schedules thereto, as the same may be amended, supplemented, or otherwise modified from time to time, as approved by the Bankruptcy Court pursuant to sections 1125 and 1126(b) of the Bankruptcy Code. 9
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Section 2.43 Disclosure Statement Approval Order means the order entered by the Bankruptcy Court on December __, 2012, approving the Disclosure Statement pursuant to sections 1125 and 1126(b) of the Bankruptcy Code. Section 2.44 Disposition Procedures Order means the Order dated August 17, 2012 [Docket No. 157] authorizing and approving procedures by which the Debtors may use, lease, sell or otherwise dispose of the Sakonnet Vessel, the Searose G Vessel, the Rip Hudner Vessel and the Roger M. Jones Vessel and the vessels respective engines, boilers, machinery, boats, equipment, tackle, appurtenances, bunkers, parts, stores, consumables, spare gear and belongings, in separate transactions, including but not limited to the charter, lease, rental, use, sale, or other disposition, outside of the Debtors ordinary course of business. Section 2.45 Disputed means, with respect to any Claim or Equity Interest, any Claim or Equity Interest that is not Allowed or Disallowed, or any Claim with respect to which an objection or request for estimation has been filed on or before the deadline established in Section 8.1 of the Plan and such objection or request for estimation has not been withdrawn with prejudice or determined by a Final Order. Section 2.46 Distribute Distributed or Distributing or Distribution(s) means any transfer under this Plan of Cash or other property or instruments to the Holder of a Claim. Section 2.47 Date. Section 2.48 Distribution Record Date means the record date for purposes of making Distributions under the Plan on account of Allowed Claims, which date shall be the Confirmation Date or such other date designated in the Confirmation Order. Section 2.49 Effective Date means the first Business Day on which all conditions to the effectiveness of the Plan specified in Section 10.2 of the Plan have been satisfied or as soon as practicable thereafter. Section 2.50 Effective Date Cash Requirement means Cash in an amount equal to the sum of (a) the Administrative and Priority Claims Reserve Amount, plus (b) the Plan Administrator Expenses Reserve Amount, plus (c) the Professional Claims Reserve Amount. Section 2.51 Equity Interest means the legal, equitable, contractual, or other rights of a holder of an ownership interest in any of the Debtors, including, without limitation, any interest evidenced by common or preferred stock, membership interests, options, or other rights to purchase or otherwise acquire any ownership interest in any of the Debtors. Section 2.52 Estate means, with respect to each Debtor, the estate created in its respective Chapter 11 Case pursuant to section 541 of the Bankruptcy Code. 10 Distribution Date means either the Effective Date or a Periodic Distribution
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Section 2.53 Excess Administrative and Priority Claims Reserve means, as determined by Section 7.4 of the Plan, Distributions in accordance with the Plan in an amount equal to the balance, if any, of the Administrative and Priority Claims Reserve after all Administrative Expense Claims, Priority Tax Claims, and Other Priority Claims have either been Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court. Section 2.54 Excess Professional Claims Reserve means Distributions in accordance with the Plan in an amount equal to the balance, if any, of the Professional Claims Reserve after all Professional Claims have either been Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court. Section 2.55 Final Order means an order or judgment of a court of competent jurisdiction that has been entered on the docket maintained by the clerk of such court which has not been reversed, vacated, or stayed and as to which (a) the time to appeal, petition for certiorari, or move for a stay, new trial, reargument, or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for a stay, new trial, reargument, or rehearing shall then be pending or (b) if an appeal, writ of certiorari, stay, new trial, reargument, or rehearing thereof has been sought, (i) such order or judgment shall have been affirmed by the highest court to which such order was appealed, certiorari shall have been denied, or a stay, new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order and (ii) the time to take any further appeal, petition for certiorari, or move for a stay, new trial, reargument, or rehearing shall have expired; provided, however, that the possibility that a motion pursuant to section 502(j) or 1144 of the Bankruptcy Code or under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such order shall not cause such order to not be a Final Order. Section 2.56 General Claims Bar Date means October 15, 2012, at 5:00 p.m. prevailing Eastern Time, as set forth in the Claims Bar Date Order. Section 2.57 General Settlement Assets means those Assets where legal title or entitlement to such Assets as between the Debtors is unresolved as of the Effective Date of the Plan, and shall include, without limitation, (i) the TTMI Settlement Proceeds, (ii) the Third Party Release Fund (without the Searose Receivable Proceeds), and (iii) any Causes of Action where legal title or entitlement to such Causes of Action are unresolved. General Settlement Assets will be allocated to each Debtor pursuant to the General Settlement Asset Distribution Formula. Section 2.58 General Settlement Asset Distribution Formula means the Distribution of General Settlement Assets pursuant to a hybrid (Pro Rata/equal division) formula as follows: (a) 50% to be divided between all Debtors Pro Rata based on the amount of Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) against a Debtor; and (b) 50% to be divided equally between each Debtor, with the exception of solvent Debtors or Debtors without Allowed 11
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Claims (other than any Allowed Claims held by Macquarie or Scotiabank), in each case with any excess General Settlement Assets at any particular Debtor that remains after paying all of its Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) in full being distributed to such other participating Debtors equally. Section 2.59 General Unsecured Claim means any Claim against any of the Debtors that is not (a) an Administrative Expense Claim, a Macquarie Administrative Claim, a Scotiabank Administrative Claim, a Priority Tax Claim, an Other Priority Claim, a Macquarie Secured Claim, a Macquarie Deficiency Claim, a Scotiabank Secured Claim, a Scotiabank Deficiency Claim, or an Other Secured Claim, or (b) is otherwise determined by the Bankruptcy Court to be a General Unsecured Claim. For the avoidance of doubt, any Rejection Damage Claim is a General Unsecured Claim. Section 2.60 General Unsecured Claims Reserve means the account to be established by the Plan Administrator and funded with the General Unsecured Claims Reserve Amount. Section 2.61 General Unsecured Claims Reserve Amount means an amount estimated by the Plan Administrator to be sufficient to pay the Distributions to all Disputed General Unsecured Claims at the time such Distributions are made in accordance with the provisions of the Plan, if such Disputed Claims become Allowed Claims. The Debtors and the Creditors Committee, prior to the Effective Date, and the Plan Administrator, after the Effective Date, shall have the right to seek estimation of Disputed General Unsecured Claims for the purpose of determining the amount of Distributions in accordance with the Plan that shall be reserved in connection with making Distributions. Section 2.62 Hudner Released Parties means B+H Management Ltd., Navinvest Marine Services (USA) Inc., Product Transport (S) Pte Ltd, B+H Equimar (Singapore) Pte Ltd., Centennial Maritime Services Corp., Centennial Transmarine Inc., Northampton Holdings Ltd., Northampton Assurance Ltd., Providence Tankers Ltd., Harbor Holdings Corp., Protrans Mgmt. Ltd., Product Transport (US) Inc., Product Transport USA, Seabulk Management AS, Seabulk Trading Ltd., Equimar Shipserv Ltd., B+H Norway, Consolidated Services Ltd., Fundamental Securities International Ltd., Nordan OBO II, Sagamore Shipping Corp., Boss Tankers Ltd., Agawam Shipping Corp. mi, Anawan Shipping Corp., Aquideck Shipping Corp., Isabelle Shipholdings Corp. (MT Pequod), Drew Corp. Services Pte Ltd., B+H Potier Partners, GHP Corp., JV Equities Inc., Cliaship Holdings Corp., Algonquin Shipping Corp., including any and all officers, directors and shareholders thereof and any and all officers and directors of any of the Debtors including without limitation Michael S. Hudner, E. Hope (Freeman) Hudner, Bay A. Hudner, Charles L. Brock, Michael Lewis, Trevor J. Williams, Per Ditlev-Simonsen, Sverre Ditlev-Simonsen, R. Anthony Dalzell, Harald Svensen, Patrick F. Toohey, Thomas Scott, Thomas Evans, John Graham, Marcin Wolasiewicz, Deborah Davis, Katie Bogue, Mary Guerenabarrena, Alexandra Plock, John M. LeFrere, Gerard H. Potier, Arthur E.M. Jones, Ronald Souza, Dolores A. Gallant, Karen M. Ptak, Steffen Tunge, Anthony J. Hardy, Shelley Durrant, Wolf-Harmut L. Voss, Jonathan C. Arruda, Kim Hong Tan, 12
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Trudy Coleman, Robert Nye, Praveen Bajaj, Paiman Said, Syed Hasan, Shahrukh Ismail, Belle Han, Irene Teo, Steven Teo, Ng Loke Ann, Karen LohRosalyn Chua, Nico Furst, Olaf Skogstad, Krasimir N. Angelov, Lian Kim Seng and Nita Sim Geok Hoon. Section 2.63 Hudner Released Parties Contribution means $1,360,000.00 in Cash, which is comprised of (i) the Searose Receivable Proceeds, and (ii) $650,000 in additional Cash. Section 2.64 Impaired has the meaning set forth in section 1124 of the Bankruptcy Code.
Section 2.65 Insider means an insider -- as the term insider is defined in section 101(31) of the Bankruptcy Code -- of a Debtor. Section 2.66 Debtor. Section 2.67 Section 2.68 Intercompany Claim means a Claim held by one Debtor against another Lenders means, collectively, Macquarie and Scotiabank. Macquarie means, collectively, (i) Macquarie Bank and (ii) Macquarie US.
Section 2.69 Macquarie-BHO Junior Loan Guaranty means the BHO written guaranty of the Macquarie Junior Loan. Section 2.70 Macquarie-BHO Senior Loan Guaranty means the BHO written guaranty of the Macquarie Senior Credit Facility. Section 2.71 Macquarie Administrative Claim means, collectively, the (i) Macquarie Senior Administrative Claim and (ii) Macquarie Junior Administrative Claim, in each case against all Debtors except Sakonnet; provided, however, the Allowed portion of any Macquarie Administrative Claim shall not receive any Distributions under the Plan unless and until the Macquarie Claim Settlement Threshold is satisfied pursuant to the Macquarie Plan Term Sheet. Section 2.72 Macquarie Bank means Macquarie Bank Limited.
Section 2.73 Macquarie Cash Collateral means the Cash Collateral securing the Debtors obligations to Macquarie under the Macquarie Senior Credit Facility and Macquarie Junior Loan in accordance with the Macquarie Cash Collateral Order. Section 2.74 Macquarie Cash Collateral Order means that certain Interim Order Pursuant to 11 U.S.C. 105(a), 361 and 363 (A) Authorizing Use of Cash Collateral of Nordea Lender Group, and (B) Granting Adequate Protection dated June 28, 2012 (Docket No. 64), as amended and modified by subsequent orders and stipulations dated June 28, 2012 and July 17, 2012 (Docket Nos. 65 and 84), and amended and modified again on July 26, 2012 and August 8, 2012 with Macquarie 13
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as the successor-in-interest to the Nordea Lender Group (Docket Nos. 102 and 133), and any and all subsequent amendments. Section 2.75 Macquarie Claim Settlement Threshold means, pursuant to the Macquarie Plan Term Sheet, that any (i) Macquarie Administrative Claim and (ii) Macquarie Deficiency Claim shall be subordinated to holders of Allowed General Unsecured Claims against all Debtors except Sakonnet in Class A3-A through J3-A unless and until an aggregate of $4,000,000 is or becomes available for Distribution to such holders of Allowed General Unsecured Claims. Section 2.76 Macquarie Collateral means, collectively, pursuant to the Macquarie Plan Term Sheet and subject to any senior liens and security interests, the aggregate amount of (i) the Macquarie Senior Loan Collateral and Macquarie Junior Loan Collateral, plus (ii) the Macquarie Cash Collateral to be turned over to Macquarie pursuant to the Macquarie Cash Collateral Order, less (iii) the amount of the Macquarie Settlement Contribution. Section 2.77 Macquarie Collateral Vessels means, collectively, the RIP Hudner Vessel, the Searose G Vessel and the Roger M. Jones Vessel. Section 2.78 Macquarie Deficiency Claim means, collectively, the (i) Macquarie Senior Loan Deficiency Claim and (ii) Macquarie Junior Loan Deficiency Claim, as Allowed under Classes A3-B through E3-B, G3-B, H3-B and I3-B of the Plan; provided, however, an Allowed Macquarie Deficiency Claim shall not receive any Distribution under the Plan unless and until the Macquarie Claim Settlement Threshold is satisfied pursuant to the Macquarie Plan Term Sheet. Section 2.79 Macquarie Junior Administrative Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion any Administrative Claim(s) arising under section 507(b) of the Bankruptcy Code held by Macquarie against all Debtors except Sakonnet in connection with the HBOS Junior Loan and Macquarie Cash Collateral Order. Section 2.80 Macquarie Junior Loan means that certain $3,975,230 credit facility, dated as of February 3, 2010, by and between OBOH, OBO1, OBO2, OBO3, RMJ and certain non-Debtors as borrowers, and Macquarie as the lender and the successor-in-interest to the Bank of Scotland Plc, as amended, supplemented or otherwise modified as of the Petition Date, and including all documents executed and delivered in connection therewith including, without limitation, the Macquarie-BHO Junior Loan Guaranty. As of the Petition Date, the principal amount outstanding under the Macquarie Junior Loan was approximately $3,975,230. Section 2.81 Macquarie Junior Loan Collateral means the following Collateral alleged by Macquarie as successor in interest to Bank of Scotland Plc to secure the Macquarie Junior Loan, subject to any senior liens and security interests: (i) a second mortgage on the Macquarie Collateral Vessels, (ii) certain security interests in the share of stock of various entities, (iii) a security interest in certain bank accounts, and (iv) a security interest in the cash generated by the Macquarie Collateral Vessels. 14
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Section 2.82 Macquarie Junior Loan Deficiency Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion of any Deficiency Claim(s) held by Macquarie against all Debtors except Sakonnet in connection with the Macquarie Junior Loan and Macquarie Junior Secured Claim. Section 2.83 Macquarie Junior Secured Claim means the Secured Claim of Macquarie against all Debtors except Sakonnet pursuant to the Macquarie Junior Loan and the Macquarie Cash Collateral Order. Section 2.84 Macquarie OBO2 Vessel Settlement Allocation means, pursuant to the Macquarie Plan Term Sheet, Specified Settlement Assets allocated to OBO2 as part of the Macquarie Settlement Contribution. Section 2.85 Macquarie OBO3 Vessel Settlement Allocation means, pursuant to the Macquarie Plan Term Sheet, Specified Settlement Assets allocated to OBO3 as part of the Macquarie Settlement Contribution. Section 2.86 Macquarie Plan Term Sheet means that the term sheet among the Debtors and Macquarie, a true and correct copy of which is attached to this Plan as Exhibit A, pursuant to which Macquarie has agreed to contribute certain funds to enable enhanced Distributions to holders of General Unsecured Claims who do not opt out of the releases to be provided under Section 11.6 of the Plan or who do vote to reject the Plan. Upon entry of the Disclosure Statement Approval Order, the Macquarie Plan Term Sheet shall be binding on all parties. Section 2.87 Macquarie RMJ Vessel Settlement Allocation means, pursuant to the Macquarie Plan Term Sheet, Specified Settlement Assets allocated to RMJ as part of the Macquarie Settlement Contribution. Section 2.88 Macquarie Secured Claim means, collectively, the (i) Macquarie Senior Secured Claim, (ii) Macquarie Swap Claim and (iii) Macquarie Junior Secured Claim, plus postpetition interest, plus reasonable attorneys fees incurred by Macquarie in connection with these Chapter 11 Cases, less any payments made after the date hereof, as Allowed under Class A2-B through J2-B of the Plan. Section 2.89 Macquarie Senior Administrative Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion of any Administrative Claim or superpriority Claim arising under section 507(b) or section 503(b) of the Bankruptcy Code held by Macquarie against any Debtors except Sakonnet in connection with the Macquarie Senior Credit Facility, Macquarie Senior Secured Claim and Macquarie Cash Collateral Order. Section 2.90 Macquarie Senior Credit Facilitymeans that certain $202,000,000 revolving credit facility agreement, dated as of August 29, 2006, by and between OBOH, OBO1, OBO2, OBO3, RMJ and non-Debtor Sagamore Shipping Ltd. as borrowers, and Macquarie as lender and the 15
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successor-in-interest to the Nordea Lender Group, as amended, supplemented or otherwise modified as of the Petition Date, and including all documents executed and delivered in connection therewith including, without limitation, the Macquarie-BHO Senior Loan Guaranty. As of the Petition Date, the principal amount outstanding under the Macquarie Senior Credit Facility was approximately $18,837,000. Section 2.91 Macquarie Senior Deficiency Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion of any Deficiency Claim(s) held by Macquarie against all Debtors except Sakonnet in connection with the Macquarie Senior Credit Facility and Macquarie Senior Secured Claim. Section 2.92 Macquarie Senior Loan Collateral means, pursuant to the Macquarie Senior Credit Facility, the following Assets subject to any senior liens and security interests: (i) Macquarie Collateral Vessels, (ii) a security interest in certain bank accounts, (iii) a security interest in the shares of stock of OBOH, and each of OBO1, OBO2, OBO3, RMJ and non-Debtor Sagamore Shipping Ltd., (iv) a pledge of 50% of the outstanding shares of Nordan OBO II Inc., which operates the Seapowet Vessel, (v) a security interest in the proceeds of the operations and insurances of the Macquarie Collateral Vessels, and (vi) charterparty assignments in respect of the Macquarie Collateral Vessels. Section 2.93 Macquarie Senior Secured Claim means the Secured Claim of Macquarie against all Debtors except Sakonnet pursuant to the Macquarie Senior Credit Facility and the Macquarie Cash Collateral Order. Section 2.94 Macquarie Settlement Contribution means the Macquarie OBO2 Vessel Settlement Allocation, the Macquarie OBO3 Vessel Settlement Allocation, the Macquarie RMJ Vessel Settlement Allocation, the TTMI Settlement Proceeds and other assets (as set forth in the Macquarie Plan Term Sheet) that Macquarie has agreed to contribute to enable enhanced Distributions to holders of General Unsecured Claims who do not opt out of the releases to be provided under Section 11.6 of the Plan or who do not vote to reject the Plan. Section 2.95 Macquarie Swap Claim means any and all claims arising under ISDA Master Agreement, dated February 28, 2005, between OBOH, OBO1, OBO2, OBO3, RMJ and Sagamore Shipping Ltd., acting jointly and severally as Party B, and Macquarie, as successor in interest to Nordea Bank Finland PLC, and all schedules, agreements, addenda, confirmations and other documents related thereto. Section 2.96 Macquarie US means Macquarie US Trading LLC.
Section 2.97 Non-BHO Equity Interests means all Equity Interests in all Debtors other than BHO, which Equity Interests are either directly or indirectly (through subsidiaries) owned by BHO. 16
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Section 2.98 Nordea Lender Group means, collectively, Nordea Bank Norge SA as agent, bookrunner and lead arranger, Nordea Bank Finland PLC as senior swap bank, and DVB Bank America NV, Bank of Scotland Plc and HSH Nordbank AG as co-arrangers. Deutsche Schiffs Bank AG and UniCredit Bank AG later joined the Nordea Lender Group. On May 15, 2012, the position held by UniCredit Bank AG was purchased by Macquarie Bank, which later also purchased the entire Nordea Credit Facility during the pendency of these Chapter 11 Cases. Section 2.99 Notice and Claims Agent means Rust Consulting/Omni Bankruptcy, retained as the Debtors claims agent by order of the Bankruptcy Court dated August 24, 2012 [Docket No. 178]. Section 2.100 OBOH means Debtor OBO Holdings Ltd., incorporated in the Marshall Islands and holding company of OBO1, OBO2, OBO3 and RMJ. Section 2.101 OBO1 means Debtor BHOBO One Ltd., incorporated in the Marshall Islands and former operator of the Bonnie Smithwick Vessel. Section 2.102 OBO2 means Debtor BHOBO Two Ltd., incorporated in the Marshall Islands and operator the RIP Hudner Vessel. Section 2.103 OBO3 means Debtor BHOBO Three Ltd., incorporated in the Marshall Islands and operator of the Searose G Vessel. Section 2.104 Other Priority Claim means any claim other than an Administrative Expense Claim or a Priority Tax Claim that is entitled to priority in payment pursuant to section 507(a) of the Bankruptcy Code. Section 2.105 Other Secured Claim means any Secured Claim against a Debtor that is not a Macquarie Secured Claim or Scotiabank Secured Claim. Section 2.106 Periodic Distribution Date means a date after the Effective Date, which shall occur on a Business Day that is approximately sixty (60) days after the immediately preceding Distribution Date. Section 2.107 Petition Date means May 30, 2012, that date on which all the Debtors other than Seasak filed voluntary petitions commencing these Chapter 11 Cases. Section 2.108 Plan means this second amended joint plan of reorganization for the Debtors, including all exhibits, schedules, and supplements hereto, as the same may be amended or modified from time to time in accordance with the provisions of the Bankruptcy Code. Section 2.109 Plan Administrator means Buchwald Capital Advisors, LLC, solely in its capacity as representative of each of the Debtors and their Estates from and after the 17
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Effective Date for purposes of administering and consummating the Plan, or any successor thereto. Section 2.110 Plan Administrator Agreement means the form of agreement between the Debtors and the Plan Administrator attached to this Plan as Exhibit C. Section 2.111 Plan Administrator Expenses means all reasonable, actual and necessary fees, costs, expenses and obligations incurred by or owed to, the Plan Administrator and its respective agents, employees, attorneys, advisors and other professionals in administering the Plan, including, without limitation, (a) reasonable compensation for services rendered, and reimbursement for actual and necessary expenses incurred, by the Plan Administrator and each of its agents, employees and professionals after the Effective Date through and including the date upon which the Bankruptcy Court enters a final decree closing the Chapter 11 Cases and (b) all fees payable pursuant to Section 13.1 of the Plan. Section 2.112 Plan Administrator Expense Reserve Amount means Cash in an amount equal to $150,000. Section 2.113 Plan Supplement means the compilation of documents and forms of documents, schedules and exhibits to the Plan, if any, that, if to be filed, shall be filed no later than five days before the Confirmation Hearing or such later date as may be approved by the Bankruptcy Court, and additional documents filed with the Bankruptcy Court before the Effective Date as amendments. Section 2.114 Post-Confirmation Period means the period of time between the Confirmation Date until the Effective Date. Section 2.115 Priority Tax Claim means any Claim of a governmental unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code. Section 2.116 Pro Rata means, with respect to any Distribution on account of any Allowed Claim, the ratio that the amount of such Allowed Claim bears to the aggregate amount of all Claims (including Disputed Claims until disallowed) in the same Class. Section 2.117 Professional Claims means Claims for compensation for services rendered or reimbursement of expenses incurred through and including the Effective Date under section 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code. Section 2.118 Professional Claims Objection Deadline means the date that is the first Business Day that is forty-five (45) days after the Effective Date, as such deadline may be extended from time to time by order of the Bankruptcy Court.
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Section 2.119 Professional Claims Reserve means the account to be established by the Plan Administrator and funded with the Professional Claims Reserve Amount pursuant to Section 6.10 of the Plan. Section 2.120 Professional Claims Reserve Amount means the amount of the anticipated Allowed Professional Claims as estimated in good faith by the Debtors professionals and the Creditors Committees professionals and determined by the Bankruptcy Court at the Confirmation Hearing to be a reasonable estimate of such anticipated Allowed Professional Claims. Section 2.121 Protrans means Debtor Product Transport Corp., incorporated in Bermuda and sub-charterer of vessels to third party charterers. Section 2.122 Protrans Crane Deposit means, pursuant to the Scotiabank Plan Term Sheet, that certain crane system deposit (or the proceeds of any sale or other disposition thereof) that shall be entirely allocated to Protrans. Section 2.123 Rejection Damage Claim means a Claim for damages arising from the rejection by any Debtor of any executory contract or unexpired lease pursuant to section 365 or 1123 of the Bankruptcy Code. Section 2.124 Rejection Damage Claim Bar Date means the date that is the first Business Day that is thirty (30) days after the date of the entry of an order authorizing the rejection of an executory contract or unexpired lease, except as otherwise set forth in any order authorizing rejection of an executory contract or unexpired lease, as provided in the Claims Bar Date Order. Section 2.125 Related Equipment means, with respect to any vessel owned by any of the Debtors, such vessels engines, boilers, machinery, boats, equipment, tackle, appurtenances, bunkers, parts, stores, consumables, spare gear and belongings. Section 2.126 Released Parties means, collectively, (a) Macquarie, (b) Scotiabank, (c) the Hudner Released Parties, (d) the Creditors Committee and the members thereof in their capacity as such, (e) the Plan Administrator, (f) each of the respective current and former officers, directors, employees, members, affiliates, financial advisors, attorneys, professionals, accountants, investment bankers, consultants, agents, and other representatives and advisors of the parties in (a) through (e) above, and (g) the Debtors, their successors and assignees, and the Debtors current and former officers, directors, employees, members, affiliates, financial advisors, attorneys, professionals, accountants, investment bankers, consultants, agents, and other representatives and advisors. Section 2.127 RIP Hudner Vessel means the ore-bulk-carrier RIP Hudner operated by OBO2. Section 2.128 RMJ means Debtor RMJ OBO Shipping Ltd., incorporated in the Marshall Islands and operator of the Roger M. Jones Vessel. 19
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Section 2.129 Roger M. Jones Vessel means the ore-bulk-carrier Roger M. Jones operated by RMJ. Section 2.130 Sakonnet means Debtor Sakonnet Shipping Ltd., incorporated in the Marshall Islands and former operator of the Sakonnet Vessel, which was sold in September 2012. Section 2.131 Sakonnet Vessel means the ore-bulk-carrier ship formerly operated by Sakonnet. Section 2.132 Schedules means, collectively, the schedules of the Debtors assets and liabilities, the statement of the Debtors financial affairs, and any other schedules and statements filed with the Bankruptcy Court pursuant to sections 521 or 1106 of the Bankruptcy Code or Bankruptcy Rule 1007, as such schedules and statements have been or may be amended and supplemented from time to time in accordance with Bankruptcy Rule 1009. Section 2.133 Scotiabank means The Bank of Nova Scotia Asia Limited. Section 2.134 Scotiabank-BHO Guaranty means the BHO written guaranty of the Scotiabank Credit Facility. Section 2.135 Scotiabank-BHO Deficiency Claim means, pursuant to the Scotiabank Plan Term Sheet, that Allowed portion of any Deficiency Claim held by Scotiabank against BHO in connection with the Scotiabank-BHO Guaranty, as Allowed under Class A3-C of the Plan; provided, however, that Distributions on account of an Allowed Scotiabank-BHO Deficiency Claim shall not be made unless and until the Scotiabank-BHO Claim Settlement Threshold is satisfied. Section 2.136 Scotiabank-BHO Claim Settlement Threshold means, pursuant to the Scotiabank Plan Term Sheet, that any Allowed Scotiabank-BHO Deficiency Claim in connection with the Scotiabank-BHO Guaranty, the Scotiabank Credit Facility and the Scotiabank Secured Claim shall be subordinated to holders of Allowed General Unsecured Claims against BHO in Class A3-A unless and until an aggregate of $2,000,000.00 is or becomes available for Distribution to such holders of Allowed General Unsecured Claims against BHO. Section 2.137 Scotiabank-Sakonnet Claim Settlement Threshold means, pursuant to the Scotiabank Plan Term Sheet, that any Scotiabank Administrative Claim and Scotiabank-Sakonnet Deficiency Claim in connection with the Scotiabank Credit Facility and Scotiabank Secured Claim shall be subordinated to holders of Allowed General Unsecured Claims against Sakonnet in Class K3-A unless and until an aggregate of $300,000.00 is or becomes available for Distribution to such holders of Allowed General Unsecured Claims against Sakonnet. Section 2.138 Scotiabank-Sakonnet Deficiency Claim means, pursuant to the Scotiabank Plan Term Sheet, that Allowed portion of any Deficiency Claim held by Scotiabank against Sakonnet in connection with the Scotiabank Secured Claim and Scotiabank Credit Facility, as Allowed under 20
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Class K3-B of the Plan; provided, however, that Distributions on account of an Allowed ScotiabankSakonnet Deficiency Claim shall not be made unless and until the Scotiabank-Sakonnet Claim Settlement Threshold is satisfied. Section 2.139 Scotiabank-Sakonnet EBC Arbitration Claim means, that certain arbitration claim against Egyptian Bulk Carriers for broken mooring lines aboard the Sakonnet Vessel. Section 2.140 Scotiabank-Sakonnet EBC Arbitration Allocation means, pursuant to the Scotiabank Plan Term Sheet, the proceeds from the Scotiabank-Sakonnet EBC Arbitration Claim specifically allocated to holders of General Unsecured Claims against the Sakonnet. Section 2.141 Scotiabank Administrative Claim means, pursuant to the Scotiabank Plan Term Sheet, that Allowed portion of any Administrative Claim or superpriority Claim arising under section 507(b) or section 503(b) of the Bankruptcy Code held by Scotiabank against Sakonnet in connection with the Scotiabank Credit Facility; provided, however, that Distributions on account of an Allowed Scotiabank-Sakonnet Administrative Claim shall not be made unless and until the Scotiabank-Sakonnet Claim Settlement Threshold is satisfied. Section 2.142 Scotiabank Cash Collateral means the Cash Collateral securing the Debtors obligations to Scotiabank under the Scotiabank Credit Facility pursuant to the Scotiabank Cash Collateral Order and Scotiabank Plan Term Sheet. Section 2.143 Scotiabank Cash Collateral Carveout means, pursuant to the Scotiabank Plan Term Sheet, Scotiabank Cash Collateral that Scotiabank agreed to carveout from the Scotiabank Collateral to pay specified Allowed Administrative Expense Claims (other than an Allowed Scotiabank Administrative Claim) against Sakonnet. Any remaining funds from the Scotiabank Cash Collateral Carveout after payment of such specified Allowed Administrative Expense Claims shall become Scotiabank Collateral for Distribution under the Plan. Section 2.144 Scotiabank Cash Collateral Order means that certain Interim Order Pursuant to 11 U.S.C. 105(a), 361 and 363 (A) Authorizing Use of Cash Collateral and (B) Granting Adequate Protection to Scotiabank dated June 28, 2012 (Dkt. No. 66), as amended and modified by subsequent orders and stipulations dated July 12, 2012, July 17, 2012, July 16, 2012 and August 3, 2012 (Dkt Nos. 77, 83, 103 and 120). Section 2.145 Scotiabank Collateral means, collectively, pursuant to the Scotiabank Plan Term Sheet and subject to any senior liens and security interests, the aggregate amount of the (i) Scotiabank Cash Collateral to be turned over to Scotiabank; plus (ii) Scotiabank Vessel; plus (iii) Scotiabank Other Collateral; less (iii) the amount of the Scotiabank Carveout. Section 2.146 Scotiabank Contribution means the amounts Scotiabank has agreed to contribute to Distributions to holders of General Unsecured Claims and to the Debtors estates as set forth in the Scotiabank Plan Term Sheet. 21
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Section 2.147 Scotiabank Credit Facility means that certain term loan facility to purchase the Sakonnet Vessel, dated on or about January 24, 2007, by and between Sakonnet, as borrower, and Scotiabank, as lender, in the amount of $27,300,000, as amended, supplemented or otherwise modified as of the Petition Date, and including all documents executed and delivered in connection therewith including, without limitation, the Scotiabank-BHO Guaranty. As of the Petition Date, the principal amount outstanding under the Scotiabank Loan Agreement was approximately $9,642,857. Section 2.148 Scotiabank Other Collateral means all Collateral other than the Scotiabank Vessel and the Scotiabank Cash Collateral, granted by any of the Debtors pursuant to, and as described in, the Scotiabank Credit Facility, subject to any senior liens and security interests. Section 2.149 Scotiabank Plan Term Sheet means that certain agreement, dated as of August 23, 2012, by Scotiabank and the Creditors Committee, a true and correct copy of which is attached to this Plan as Exhibit B. Section 2.150 Scotiabank Secured Claim means, collectively, the Secured Claims of Scotiabank against Sakonnet arising under the Scotiabank Credit Facility, those claims alleged in the Scotiabank-Sakonnet EBC Arbitration Claim but not otherwise allocated, plus post-petition interest, plus reasonable attorneys fees incurred by Scotiabank in connection with these Chapter 11 Cases, less any payments made after the date hereof, as Allowed under Class K2-B of the Plan. Section 2.151 Scotiabank Settlement Contribution means the amounts Scotiabank has agreed to contribute to Distributions to holders of General Unsecured Claims and to the Debtors estates as set forth in the Scotiabank Plan Term Sheet. Section 2.152 Scotiabank Vessel means the first mortgage against the Sakonnet Vessel held by Scotiabank pursuant to the Scotiabank Credit Facility. Section 2.153 Seapowet means Debtor Seapowet Shipping Ltd., incorporated in the British Virgin Islands and 50% owner of non-Debtor Nordan OBO II, the operator of Seapowet Vessel. Section 2.154 Seapowet Vessel means the ore-bulk-carrier Seapowet, 50% owned by Seapowet and operated by non-Debtor Nordan OBO II. Section 2.155 Searose G Vessel means the ore-bulk-carrier Searose G operated by OBO3. Section 2.156 Searose Receivable Proceeds means the first $710,000 of charter hire generated by the Searose G Vessel between August 2, 2012 and the date of the Confirmation Hearing, but does not include any charter hire or other amounts in excess of such $710,000. Section 2.157 Seasak means Debtor Seasak Trading Ltd., incorporated in the Marshall Islands and the holding company for Sakonnet and Seapowet. 22
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Section 2.158 Secured Claim means a Claim to the extent (a) of the holders interest in the value of the Collateral securing such Claim, (b) determined by a Final Order in accordance with section 506(a) of the Bankruptcy Code as secured, or (c) of any valid and enforceable rights of setoff of the holder thereof under section 553 of the Bankruptcy Code. Section 2.159 Specified Settlement Assets means Assets specifically designated to a particular Debtor pursuant to settlements that are allocated to the Debtor on equitable ownership principles, and shall include, without limitation (i) the Macquarie OBO2 Vessel Settlement Allocation, (ii) the Macquarie OBO3 Vessel Settlement Allocation, (iii) the Macquarie RMJ Vessel Settlement Allocation, (iv) the ADM Arbitration Allocation, (v) the Scotiabank-Sakonnet EBC Settlement Allocation, (vi) the Searose Receivable Proceeds, (vii) the net proceeds from the sale of the Straits-BHO Winch System, and (viii) any unencumbered Assets where legal title or entitlement to such Assets has been determined. Section 2.160 Steering Committee means the committee constituted to oversee the liquidating and wind up of the Debtors and their Estates, as described in Section 7.3 of the Plan. Section 2.161 Straits means Debtor Straits Offshore Ltd., incorporated in the British Virgin Islands to purchase a hotel and work barge project in a transaction that failed to close. Section 2.162 Straits-BHO Winch System means that certain eight-point winch system (or the proceeds of any sale or other disposition thereof) owned by Straits. Section 2.163 Subordinated Claim means any Claim that is subordinated in priority of payment pursuant to section 510 of the Bankruptcy Code or a Final Order of the Bankruptcy Court. Section 2.164 Third Party Release means the release given to the Hudner Released Parties by the Creditor Releasing Parties as set forth in 11.6(b) hereof. Section 2.165 Third Party Release Fund means collectively, the Hudner Released Parties Contribution and the Macquarie Settlement Contribution, and any proceeds therefrom. Section 2.166 TTMI Settlement means that settlement agreement by and among Debtors, TTMI Sarl of Geneva and JPMorgan Chase & Co., dated July 27, 2012, and corresponding stipulation and agreement among the Debtors, Creditors Committee and Macquarie regarding the use of certain of the TTMI settlement proceeds, as each was approved by the Bankruptcy Court on August 1, 2012 [Docket No. 117]. Section 2.167 TTMI Settlement Proceeds means $350,000 in Cash from the proceeds of the TTMI Settlement. Section 2.168 United States Trustee means the Office of the United States Trustee for the Southern District of New York. 23
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Section 2.169 Interpretation, Application of Definitions, and Rules of Construction. For purposes of the Plan, unless otherwise provided herein: whenever from the context it is appropriate, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine and the neuter gender; (a) any reference in the Plan to an existing document, schedule, or exhibit, whether or not filed with the Bankruptcy Court, shall mean such document, schedule, or exhibit, as it may have been or may be amended, modified, or supplemented; (b) any reference to an entity as a holder of a Claim or Equity Interest includes that entitys permitted successors and assigns; (c) all references in the Plan to articles, sections, schedules, exhibits, and supplements are references to the respective articles, sections, schedules, exhibits, and supplements of or to the Plan, as the same may be amended, waived, or modified from time to time; (d) whenever the words include, includes, or including are used in the Plan, they shall be deemed to be followed by the words without limitation, whether or not they are in fact followed by those words or words of similar import; (e) the words herein, hereunder, hereof, and hereto refer to the Plan in its entirety rather than to a particular provision of the Plan; (f) subject to the provisions of any contract, certificate of incorporation, bylaw, instrument, release, or other agreement or document entered into in connection with the Plan, the rights and obligations arising pursuant to the Plan shall be governed by, and construed and enforced in accordance with, applicable federal law, including the Bankruptcy Code and Bankruptcy Rules; (g) captions and headings to sections of the Plan are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan; (h) apply; (i) any term used in capitalized form in the Plan that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as applicable; (j) all references to docket numbers of documents filed in the Chapter 11 Cases are references to the docket numbers under the CM/ECF system of the Bankruptcy Court; the rules of construction set forth in section 102 of the Bankruptcy Code shall
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(k) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time, as applicable to the Chapter 11 Cases; (l) any immaterial effectuating provisions may be interpreted by the Plan Administrator after the Effective Date in such a manner that is consistent with the overall purpose and intent of the Plan, all without further Bankruptcy Court order; (m) in the event that a particular term of the definitive documentation required to be implemented pursuant to the terms of the Plan or any settlement or other agreement contemplated hereunder is inconsistent with a particular term of the Plan, the Plan shall govern and shall be binding on the parties thereto; (n) to the extent that the Macquarie Plan Term Sheet or Scotiabank Plan Term Sheet are inconsistent with the terms of the Plan or any schedule, exhibit, or supplement to the Plan, the terms of the Plan shall govern; (o) to the extent that the Confirmation Order is inconsistent with the Plan or any schedule, exhibit, or supplement to the Plan, the provisions of the Confirmation Order shall govern; (p) to the extent that the Disclosure Statement is inconsistent with the terms of the Plan, the terms of the Plan shall govern; (q) in computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply; (r) in the event that any payment, Distribution, act or deadline under the Plan is required to be made or performed or occurs on a day that is not a Business Day, then the making of such payment or Distribution, the performance of such act or the occurrence of such deadline shall be deemed to be on the next succeeding Business Day, but shall be deemed to have been completed or have occurred as of the required date; and (s) all references in the Plan to monetary figures shall refer to currency of the United States of America. ARTICLE III ADMINISTRATIVE EXPENSE AND PRIORITY TAX CLAIMS Section 3.1 Administrative Expenses.
(a) Generally. Except (a) for the Macquarie Administrative Claim and the Scotiabank Administrative Claim and (b) to the extent that a holder of an Allowed Administrative Expense Claim agrees to less favorable treatment, or as otherwise provided in the Plan, each holder 25
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of an Allowed Administrative Expense Claim shall receive in full settlement, satisfaction, and release of such Claim, a Distribution of Cash in full, on or as soon as practicable after, the later of (i) the Effective Date, (ii) the date such claim becomes allowed, and (iii) the date for payment provided by any agreement or understanding between the Debtors or the Plan Administrator and the holder of such Claim. The rights of Macquarie, Scotiabank and the Creditors Committee shall not be prejudiced in any manner to the extent the Debtors used cash that was traceable to the proceeds of any particular asset prior to or after the Confirmation Date to pay any Administrative Expense Claim including Professional Claims. Any escrows established or to be established concerning payment of Administrative Expense Claims or other Claims shall remain in full force and effect after the Effective Date, until resolved by agreement of the relevant parties or decision of the Bankruptcy Court. To the extent that any such resolution treats any portion of such escrow as the cash collateral of Macquarie or Scotiabank, then such funds shall be distributed to Macquarie or Scotiabank (as the case may be). If the dispute between Macquarie and Scotiabank concerning payment of unallocated Administrative Expense Claims is resolved after all Administrative Expense Claims have been paid, then any portion of such $250,000 escrow that is not to be returned to Scotiabank under such resolution shall be distributed to Macquarie. Except as otherwise provided in the Plan, the General Bar Date Order, or any other order of the Bankruptcy Court (and excluding, for the avoidance of doubt, the Macquarie Administrative Claim, the Scotiabank Administrative Claim and any Administrative Expense Claims that have been fully satisfied or Allowed on or before the Effective Date), proofs of all Administrative Expense Claims (including requests for payment thereof) that accrue from and after the Petition Date through the Effective Date (other than Professional Claims) shall be filed with the Notice and Claims Agent, and served on counsel for the Debtors, the Creditors Committee, and the Lenders (if filed and served before the Effective Date) or the Plan Administrator (if filed and served on or after the Effective Date) on or before the Administrative Expense Claim Bar Date. The failure to properly file and serve such proof of an Administrative Expense Claim and payment request on or before the Administrative Expense Claim Bar Date shall result in such Administrative Expense Claim being deemed forever barred and Disallowed automatically without the need for any objection from the Debtors, the Plan Administrator or any other party in interest or any action by the Bankruptcy Court. After the Effective Date, the Plan Administrator, Macquarie and Scotiabank shall have the right to object to Administrative Expense Claims (other than Administrative Expense Claims that are Allowed as of the Effective Date) on or before the Claims Objection Deadline, subject to extension from time to time by order of the Bankruptcy Court. Unless such an objection is interposed to a timely-filed and properly-served Administrative Expense Claim and payment request, such Claim shall be deemed Allowed in the amount requested. In the event that the Plan Administrator, Macquarie or Scotiabank objects to an Administrative Expense Claim, the parties may confer to try to reach a settlement and, failing that, the Bankruptcy Court shall resolve the dispute. The Plan Administrator may settle Administrative Expense Claims in the ordinary course of 26
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business and without further Bankruptcy Court approval, but subject to the consent of Macquarie and/or Scotiabank to the extent either has expressed an interest in the objection. (b) Professional Compensation and Reimbursement Claims. Any holder of a Professional Claim shall (i) file its application for final allowance of such Claim on or before the Administrative Expense Claim Bar Date and (ii) unless such holder agrees to less favorable treatment, or as otherwise provided in the Plan, shall receive in full settlement, satisfaction, and release of such Claim, a Distribution of Cash, in full, in such amounts as are Allowed by the Bankruptcy Court, upon (x) the date of entry of an order granting such award, or as soon as practicable thereafter or (y) terms less favorable to such holder, as may be mutually agreed upon by such holder, the Plan Administrator and any creditor or party in interest who filed an objection thereto. The failure to file and serve such fee application timely and properly shall result in the Professional Claim being forever barred and Disallowed. Objections to any applications for final allowance of a Professional Claim shall be filed and served on the professional that filed such application on or before the Professional Claims Objection Deadline, subject to extension from time to time by order of the Bankruptcy Court. As soon as practicable following the seventh Business Day after the occurrence of the Professional Claims Objection Deadline, a hearing will be held to consider all timely-filed and properly-served applications for final allowance of a Professional Claim. (c) Macquarie Administrative Claim. The Macquarie Administrative Claim shall receive the treatment set forth in the Macquarie Plan Term Sheet. (d) Scotiabank Administrative Claim. The Scotiabank Administrative Claim shall receive the treatment set forth in the Scotiabank Plan Term Sheet. Section 3.2 Priority Tax Claims. Except to the extent that a holder of an Allowed Priority Tax Claim has been paid prior to the Effective Date or agrees to less favorable treatment, each holder of an Allowed Priority Tax Claim shall receive, in full and complete settlement, satisfaction and discharge of its Allowed Priority Tax Claim, a Distribution of Cash, in an amount equal to such Allowed Priority Tax Claim on, or as soon as reasonably practicable after, the later of (i) the Effective Date, (ii) the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, and (iii) the date on which such Priority Tax Claim becomes due and payable pursuant to any agreement between the Debtors or Plan Administrator (as applicable) and a holder of a Priority Tax Claim. ARTICLE IV CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS Section 4.1 Classification. Generally, for voting and Distribution purposes, a Claim or Equity Interest is classified in a particular Class only to the extent that the Claim or Equity 27
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Interest qualifies within the description of that Class, and is classified in a different Class to the extent the Claim or Equity Interest qualifies within the description of such different Class. Unless otherwise provided, to the extent a Claim qualifies for inclusion in a more specifically defined Class and a more generally defined Class, it shall be included in the more specifically defined Class. The Plan is a joint plan of reorganization for the eleven Debtors. Debtors reserve the right to request at the Confirmation Hearing consolidation for purposes of Distributions to holders of Allowed Claims. Pursuant to section 1122 of the Bankruptcy Code, the following tables designate the Classes of Claims against, and Equity Interests in, the Debtors, and specify which of those Classes are (a) Impaired and entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code, (b) unimpaired and presumed to accept the Plan, and therefore not entitled to vote to accept or reject the Plan, and (c) Impaired and deemed to reject the Plan. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expense Claims and Priority Tax Claims are not classified, and the respective treatment of such unclassified claims is provided in Article II of the Plan. ALLOWED CLAIMS HELD AGAINST ONE DEBTOR SHALL BE SATISFIED SOLELY FROM THAT PORTION OF UNRESTRICTED CASH AND/OR OTHER ASSETS TO BE DISTRIBUTED ON ACCOUNT OF THE VALUE ATTRIBUTABLE TO SUCH DEBTOR AND ITS ESTATE. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NOTHING IN THIS PLAN OR IN THE DISCLOSURE STATEMENT SHALL CONSTITUTE OR BE DEEMED TO CONSTITUTE AN ADMISSION THAT ANY ONE OF THE DEBTORS IS SUBJECT TO OR LIABLE FOR ANY CLAIM AGAINST ANY OTHER DEBTOR. A CLAIM AGAINST MULTIPLE DEBTORS, TO THE EXTENT ALLOWED IN EACH DEBTORS CASE, SHALL BE TREATED AS A SEPARATE CLAIM AGAINST EACH DEBTORS ESTATE FOR ALL PURPOSES (INCLUDING, BUT NOT LIMITED TO, VOTING AND DISTRIBUTION, PROVIDED, HOWEVER, THAT NO HOLDER SHALL BE ENTITLED TO RECEIVE MORE THAN PAYMENT IN FULL OF ITS ALLOWED CLAIM), AND SUCH CLAIMS SHALL BE ADMINISTERED AND TREATED IN THE MANNER PROVIDED IN THE PLAN. A Claim or Equity Interest shall be placed in a particular Class only to the extent that such Claim or Equity Interest falls within the description of such Class, and shall be classified in other Classes to the extent that any portion of the Claim or Equity Interest falls within the description of such other Classes. For the avoidance of doubt, a Claim shall be placed in a particular Class for the purpose of receiving Distributions pursuant to the Plan only to the extent that the Claim is an Allowed Claim in such Class and the Claim has not been paid, released, or otherwise settled or compromised prior to the Effective Date. Section 4.2
Class
BHO (B+H Ocean Carriers Ltd.) (Classes A1 through A4).

Description Impairment Voting Rights
28
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Description Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Impaired
Main Document
Class A1 A2-A A2-B A3-A A3-B A3-C A4-A
Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Other Priority Claims against BHO Other Secured Claims against BHO Macquarie Secured Claim against BHO General Unsecured Claims against BHO Macquarie Deficiency Claims against BHO Scotiabank-BHO Deficiency Claim against BHO Equity Interests in BHO
Section 4.3
Class B1 B2-A B2-B B3-A B3-B B4-B
OBOH (OBO Holdings Ltd.) (Classes B1 through B4).

Description Other Priority Claims against OBOH Other Secured Claims against OBOH Macquarie Secured Claim against OBOH General Unsecured Claims against OBOH Macquarie Deficiency Claim against OBOH Equity Interests in OBOH Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.4
Class C1 C2-A C2-B C3-A
OBO1 (BHOBO One Ltd.) (Classes C1 through C4).

Description Other Priority Claims against OBO1 Other Secured Claims against OBO1 Macquarie Secured Claim against OBO1 General Unsecured Claims against OBO1 Impairment Unimpaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote
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Description Impairment Impaired Impaired
Main Document
Class C3-B C4-B
Voting Rights Entitled to Vote Entitled to Vote
Macquarie Deficiency Claim against OBO1 Equity Interests in OBO1
Section 4.5
Class D1 D2-A D2-B D3-A D3-B D4-B
OBO2 (BHOBO Two Ltd.) (Classes D1 through D4).

Description Other Priority Claims against OBO2 Other Secured Claims against OBO2 Macquarie Secured Claim against OBO2 General Unsecured Claims against OBO2 Macquarie Deficiency Claim against OBO2 Equity Interests in OBO2 Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.6
Class E1 E2-A E2-B E3-A E3-B E4-B
OBO3 (BHOBO Three Ltd.) (Classes E1 through E4).

Section 4.7
Protrans (Product Transport Corp.) (Classes F1 through F4). 30
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Description Impairment Unimpaired Impaired Impaired Impaired Impaired
Main Document
Class F1 F2-A F2-B F3-A F4-B
Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Other Priority Claims against Protrans Other Secured Claims against Protrans Macquarie Secured Claim against Protrans General Unsecured Claims against Protrans Equity Interests in Protrans
Section 4.8
Class G1 G2-A G2-B G3-A G3-B G4-B
RMJ (RMJ OBO Shipping Ltd.) (Classes G1 through G4).

Description Other Priority Claims against RMJ Other Secured Claims against RMJ Macquarie Secured Claim against RMJ General Unsecured Claims against RMJ Macquarie Deficiency Claim against RMJ Equity Interests in RMJ Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.9
Class H1 H2-A H2-B H3-A H3-B H4-B
Seapowet (Seapowet Shipping Ltd.) (Classes H1 through H4).

Description Other Priority Claims against Seapowet Other Secured Claims against Seapowet Macquarie Secured Claim against Seapowet General Unsecured Claims against Seapowet Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Macquarie Deficiency Claim against Seapowet Equity Interests in Seapowet
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Section 4.10
Class I1 I2-A I2-B I3-A I3-B I4-B
Seasak (Seasak Trading Ltd.) (Classes I1 through I4).

Description Other Priority Claims against Seasak Other Secured Claims against Seasak Macquarie Secured Claim against Seasak General Unsecured Claims against Seasak Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Macquarie Deficiency Claim against Seasak Equity Interests in Seasak
Section 4.11
Class J1 J2-A J2-B J3-A J4-B
Straits (Straits Offshore Ltd.) (Classes J1 through J4).

Description Other Priority Claims against Straits Other Secured Claims against Straits Macquarie Secured Claim against Straits General Unsecured Claims against Straits Equity Interests in Straits Impairment Unimpaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.12
Class K1 K2-A K2-B K3-A K3-B
Sakonnet (Sakonnet Shipping Ltd.) (Classes K1 through K4).

Description Other Priority Claims against Sakonnet Other Secured Claims against Sakonnet Impairment Unimpaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Scotiabank Secured Claim against Sakonnet General Unsecured Claims against Sakonnet Scotiabank-Sakonnet Deficiency Claim against Sakonnet
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Description Impairment Impaired
Main Document
Class K4-B
Voting Rights Entitled to Vote
Equity Interests in Sakonnet
ARTICLE V TREATMENT OF CLAIMS AND EQUITY INTERESTS Section 5.1 Debtors. (a) Treatment of Other Priority Claims and Other Secured Claims Common to All Other Priority Claims (Classes A1 through K1).
(i) Treatment. Except to the extent that a holder of an Allowed Other Priority Claim agrees to less favorable treatment, each holder of an Allowed Other Priority Claim shall receive in full settlement, satisfaction, and release of such Allowed Other Priority Claim, Distributions of Cash in an aggregate amount equal to the Allowed but unpaid portion of such Claim, on or as soon as practicable after, the later of (i) the Effective Date, (ii) the date such Other Priority Claim becomes an Allowed Other Priority Claim, and (iii) the date on which such Other Priority Claim becomes due and payable pursuant to any agreement between the Debtors or Plan Administrator (as applicable) and a holder of an Other Priority Claim. (ii) Impairment and Voting. Other Priority Claims in Classes A1 through K1 are Unimpaired. Holders of Allowed Other Priority Claims in Classes A1 through K1 shall be deemed to have accepted the Plan, and accordingly are not entitled to vote to accept or reject the Plan. (b) Other Secured Claims (Classes A2 through K2).
(i) Treatment. In full satisfaction, release and discharge of, and in exchange for, its Allowed Other Secured Claim, each holder of an Allowed Other Secured Claim shall receive, at the option of the Plan Administrator, (a) the Collateral in which such holder has a security interest; (b) the proceeds, if any, actually received by a Debtor from the sale or disposition of the Collateral in which such holder has a security interest; (c) cash in the amount of such holders Allowed Other Secured Claim; (d) such other Distributions or treatment as is necessary to leave the rights of such holder Unimpaired or as is necessary to otherwise satisfy the requirements of Chapter 11 of the Bankruptcy Code; or (e) such other treatment as may be agreed upon by such holder and the Debtors or Plan Administrator (as applicable), in each such case on, or as soon as reasonably practicable after, the latest of (i) the Effective Date, (ii) the date on which such Other Secured Claim 33
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becomes an Allowed Other Secured Claim or (iii) the date on which such Other Secured Claim becomes due and payable pursuant to any agreement between the Debtors or Plan Administrator (as applicable) and the holder of an Allowed Other Secured Claim. (ii) Impairment and Voting. Class A2 through K2 Claims are Impaired and, accordingly, the holder of an Allowed Other Secured Claim in Class A2 through K2 is entitled to vote to accept or reject the Plan.
Section 5.2 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against All Debtors Except Sakonnet. (a) Macquarie Secured Claim (Classes D2-B, E2-B, and G2-B).
(i) Allowance. Without prejudice to Macquaries right to subsequently different amounts and without prejudice to the Debtors right to object to any such assertion, the Macquarie Secured Claim is Allowed in an aggregate amount equal to $25,575,215 consisting of: (i) $18,837,000 in principal amount on account of the Macquarie Senior Secured Claim, plus prepetition interest in the amount of $241,817, plus post-petition interest in the amount of $530,622 (through October 31, 2012), plus additional post-petition interest that accrues on and after November 1, 2012 at approximately $3,439 per day, (ii) $782,315 in principal amount on account of the Macquarie Swap Claim plus post-petition interest in the amount of $21,758 (through October 31, 2012), plus additional post-petition interest that accrues on and after November 1, 2012 at approximately $141 per day; and (iii) $3,975,230 in principal amount on account of the Macquarie Junior Secured Claim, plus pre-petition interest in the amount of $70,933 , plus post-petition interest in the amount of $157,258 (through October 31, 2012), plus additional post-petition interest that accrues on and after November 1, 2012 at approximately $1,029 per day, plus reasonable attorneys fees incurred by Macquarie in connection with these Chapter 11 Cases in the amount of $958,282, less any payments made after the date hereof. Based on the value of Macquaries collateral, Macquaries Secured Claim is estimated, for voting purposes only, in an aggregate amount of $17,009,025 for Classes D2-B, E2-B and G2-B, and the remainder of its claim, $8,566,190, shall be estimated, for voting purposes only, as a general unsecured claim for each Debtor in Classes A3-B through E3-B, G3-B, H3-B and I3-B. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, its Allowed Macquarie Secured Claim, Macquarie shall receive, subject to the provisions of the Macquarie Plan Term Sheet, the Disposition Procedures Order or any other order entered in these Chapter 11 Cases, Distributions of Macquarie Collateral on, or as soon as reasonably practicable after, the Effective Date. Recognizing that cash is fungible, in determining what constitutes Macquarie Collateral, the rights of Macquarie and the Creditors Committee shall not be prejudiced in any manner to the extent the Debtors used cash that was traceable to the 34
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proceeds of any particular asset prior to or after the Confirmation Date. As soon as practicable after full disposition of all of the Macquarie Collateral Vessels, the Debtors shall prepare and transmit the Cash Reconciliation to Macquarie and the Creditors Committee. Macquarie and the Creditors Committee shall have three business days to object to the Cash Reconciliation. If no objections are served on the parties within three business days, then the Cash Reconciliation shall be binding on all parties for all purposes. If Macquarie or the Creditors Committee objects to the Cash Reconciliation within such period, then, in the absence of agreement by the parties, either party may ask the Bankruptcy Court to determine the dispute. (iii) Impairment and Voting. Classes D2-B, E2-B, and G2-B are Impaired, and accordingly, the holders of an Allowed Claim in Classes D2-B, E2-B, and G2-B are entitled to vote to accept or reject the Plan. (b) General Unsecured Claims (Classes A3-A through J3-A).
(i) Allowance. Class A3-A through J3-A Claims shall be Allowed or Disallowed pursuant to procedures for resolving disputed, contingent and unliquidated Claims set forth in Article VII below. 1. Treatment. In full satisfaction, release and discharge of, and on account of its Allowed General Unsecured Claim in Classes A3-A through J3-A, each holder of such Allowed General Unsecured Claim will receive, from the Debtor against which it holds such Allowed General Unsecured Claim, (i) Distributions of Specified Settlement Assets, if any, and (ii) Distributions of General Settlement Assets pursuant to the General Settlement Asset Distribution Formula. Notwithstanding the foregoing, all Specified Settlement Assets and General Settlement Assets, to the extent that they are included in the Third Party Release Fund, will not be available for Distribution to those Creditors who opt-out of the Third Party Release Fund or who vote to reject the Plan. Only holders of Allowed General Unsecured Claims that either (i) do not vote to reject this Plan, or (ii) abstain from voting and do not affirmatively elect to opt-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, shall share in the Third Party Release Fund. To the extent that the holder of an Allowed General Unsecured Claim either (i) votes to reject this Plan, or (ii) abstains from voting and affirmatively opts-out of the Third Party Release set forth in Section 11.6(b) of this Plan, then such holder shall not receive any Distribution from the Third Party Release Fund. (ii) Impairment and Voting. Class A3-A through J3-A Claims are Impaired, and accordingly, a holder of an Allowed General Unsecured Claim in Class A3-A through J3-A is entitled to vote to accept or reject the Plan. (c) I3-B). 35 Macquarie Deficiency Claim (Classes A3-B through E3-B, G3-B, H3-B and
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(i) Allowance. Pursuant to the Macquarie Plan Term Sheet, Classes A3B through E3-B, G3-B, H3-B and I3-B are Allowed in an amount equal to a Macquarie Deficiency Claim. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, an Allowed Macquarie Deficiency Claim, Macquarie shall receive Pro Rata Distributions of the proceeds available to the holders of Allowed General Unsecured Claims; provided, however, that Distributions on account of an Allowed Macquarie Deficiency Claim shall not be made unless and until all Allowed General Unsecured Claims in Classes A3-B through E3-B, G3-B, H3-B and I3-B of the Plan have received an aggregate Distribution in excess of the Macquarie Claim Settlement Threshold. As of the Distribution Date that the Macquarie Claim Settlement Threshold is satisfied, and on each Distribution Date thereafter, each holder of an Macquarie Deficiency Claim shall receive its Pro Rata share (along with holders of Allowed General Unsecured Claims in Classes A3-A through E3-A, G3-A, H3-A and I3-A) of the remaining proceeds Distributable to the holders of Allowed General Unsecured Claims. The Macquarie Deficiency Claim shall not share in the Third Party Release Fund. (iii) Impairment and Voting. Classes A3-B through E3-B, G3-B, H3-B and I3-B are Impaired, and accordingly, Macquarie as the holder of an Allowed Macquarie Deficiency Claim is entitled to vote to accept or reject the Plan as a general unsecured claim in the estimated amount of $8,566,190. (d) Scotiabank-BHO Deficiency Claim (Class A3-C).
(i) Allowance. Pursuant to the Scotiabank Plan Term Sheet, a Class A3C Claim is Allowed in an Amount equal to a Scotiabank-BHO Deficiency Claim. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, an Allowed Scotiabank-BHO Deficiency Claim, Scotiabank shall receive Pro Rata Distributions of the proceeds available to the holders of Allowed General Unsecured Claims against BHO; provided, however, that Distributions on account of an Allowed Scotiabank-BHO Deficiency Claim shall not be made unless and until all Allowed General Unsecured Claims against BHO in Class A3-A have received an aggregate Distribution in excess of the Scotiabank-BHO Claim Settlement Threshold pursuant to the Scotiabank Plan Termsheet. As of the Distribution Date that the Scotiabank-BHO Claim Settlement Threshold is satisfied, and on each Distribution Date thereafter, a holder of an Allowed Scotiabank-BHO Deficiency Claim shall receive its Pro Rata share (along with holders of Allowed General Unsecured Claims in Class A3-A against BHO) of the remaining proceeds available to the holders of Allowed General Unsecured Claims against BHO. Scotiabank shall not share in the Third Party Release Fund.
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(iii) Impairment and Voting. Class A3-C is Impaired, and accordingly, Scotiabank as the holder of an Allowed Scotiabank-BHO Deficiency Claim is entitled to vote to accept or reject the Plan. Section 5.3 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against Sakonnet. (a) Scotiabank-Sakonnet Secured Claim (Class K2-B).
(i) Allowance. Without prejudice to Scotiabanks right to subsequently different amounts and without prejudice to the Debtors right to object to any such assertion, and pursuant to the Scotiabank Plan Term Sheet, the Scotiabank Secured Claim is Allowed in an aggregate amount equal to $9,642,857, consisting of the amount outstanding under the Scotiabank Credit Facility as of the Petition Date, plus post-petition interest, plus attorneys fees and costs of $226,102 through October 31, 2012. Based on the value of Scotiabanks collateral, the Scotiabank Secured Claim is estimated, for voting purposes only, in an aggregate amount of $6,078,937.10 for Class K2-B, and the remainder of its claim, $3,563,919.90, shall be estimated, for voting purposes only, as a general unsecured claim for each Debtor in Classes A3-C and K3-B. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, its Allowed Scotiabank Secured Claim, subject to the terms of the Scotiabank Plan Term Sheet, the Disposition Procedures Order or any other order entered in these Chapter 11 Cases, Scotiabank shall receive Distributions of Scotiabank Collateral on, or as soon as reasonably practicable after the Effective Date. (iii) Impairment and Voting. Class K2-B is Impaired, and accordingly, Scotiabank is entitled to vote to accept or reject the Plan. (b) General Unsecured Claims against Sakonnet (Class K3-A).
(i) Allowance. The Class K3-A Claims shall be Allowed or Disallowed pursuant to procedures for resolving disputed, contingent and unliquidated Claims set forth in Article V below. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for its Allowed General Unsecured Claim, each holder of an Allowed General Unsecured Claim in Class K3-A shall receive: (i) Distributions of General Settlement Assets pursuant to the General Settlement Asset Distribution Formula, and (ii) a Pro Rata Distribution of the proceeds of the Scotiabank-Sakonnet EBC Arbitration Allocation. Notwithstanding the foregoing, all General Settlement Assets that are included in the Third Party Release Fund will not be available for Distribution to those Creditors who opt-out of the Third Party Release Fund or who vote to reject the Plan. Only holders of Allowed General Unsecured Claims in Class K3A that either (i) do not vote to reject this Plan, or (ii) abstain from voting and do not 37
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affirmatively elect to opt-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, shall share in the Third Party Release Fund. To the extent that the holder of an Allowed General Unsecured Claim in Class K3-A either (i) votes to reject this Plan, or (ii) abstains from voting and affirmatively opts-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, then such holder shall not receive any Distribution from the Third Party Release Fund. (iii) Impairment and Voting. Class K3-A is Impaired, and accordingly, a holder of an Allowed General Unsecured Claim in Class K3-A is entitled to vote to accept or reject the Plan. (c) Scotiabank-Sakonnet Deficiency Claim (Class K3-B).
(i) Allowance. Pursuant to the Scotiabank Plan Termsheet, a Class K3-B Claim is Allowed in an amount equal to a Scotiabank-Sakonnet Deficiency Claim. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, an Allowed Scotiabank-Sakonnet Deficiency Claim, Scotiabank shall receive Pro Rata Distributions of the proceeds available to the holders of Allowed General Unsecured Claims against Sakonnet, provided, however, that Distributions on Account of an Allowed ScotiabankSakonnet Deficiency Claim shall not be made unless and until all Allowed General Unsecured Claims against Sakonnet in Class K3-A have received a Distribution in excess of the ScotiabankSakonnet Claim Settlement Threshold. As of the Distribution Date that the Scotiabank-Sakonnet Claim Settlement Threshold is satisfied, and on each Distribution Date thereafter, Scotiabank on account of an Allowed Scotiabank-Sakonnet Deficiency Claim shall receive its Pro Rata share (along with holders of Allowed Class K3-A Claims) of the remaining proceeds available to the holders of Allowed Class K3-A Claims. Scotiabank shall not share in the Third Party Release Fund. (iii) Impairment and Voting. Class K3-B is Impaired, and accordingly, Scotiabank as the holder of an Allowed Scotiabank-Sakonnet Deficiency Claim is entitled to vote to accept or reject the Plan. Section 5.4 (a) Treatment of Equity Interests Against All Debtors (Classes A4 through K4). Equity Interests in BHO (Class A4-A).
(i) Treatment. Class A4-A consists of all Equity Interests in BHO. On the Effective Date, all Equity Interests in BHO shall be deemed without value and shall be cancelled and terminated (and BHO dissolved) by the Plan Administrator as soon as practicable after entry of a final decree closing BHOs chapter 11 case. No holder of Equity Interests in BHO shall receive or retain any property or interest in property under the Plan on account of its Equity Interests.
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(ii) Impairment and Voting. Class A4-A Equity Interests are Impaired. The holders of Equity Interests in Class A4-A are entitled to vote. (b) Non-BHO Equity Interests (Classes B4-B through K4-B).
(i) Treatment. Holders of Non-BHO Equity Interests in Classes B4-B through K4-B shall receive any dividend to which they would be entitled under the absolute priority rule, which dividends shall constitute Unencumbered Assets. The Non-BHO Equity Interests shall be cancelled and terminated (and the relevant Debtor dissolved) by the Plan Administrator as soon as practicable after entry of a final decree closing the relevant Debtors chapter 11 case. (ii) Impairment and Voting. Equity Interests in Classes B4-B through K4B are Impaired and, accordingly, such holders of Equity Interests are entitled to vote to accept or reject the Plan. Section 5.5 Nonconsensual Confirmation. In the event that any Impaired Class of Claims or Equity Interests has not accepted the Plan or is deemed to have rejected the Plan, the Debtors (a) request that the Bankruptcy Court confirm the Plan in accordance with 1129(b) of the Bankruptcy Code with respect to such non-accepting Class, in which case the Plan shall constitute a motion for such relief and (b) reserve the right to amend the Plan in accordance with Section 13.6 hereof. Section 5.6 Elimination of Vacant Classes. Any Class of Claims against, or Equity Interests in, the Debtors that is not populated as of the commencement of the Confirmation Hearing by an Allowed Claim or Equity Interest or a Claim or Equity Interest temporarily allowed under Bankruptcy Rule 3018 shall be deemed eliminated from the Plan for purposes of (a) voting to accept or reject the Plan and (b) determining the acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code. Section 5.7 Intercompany Claims. On the Effective Date, all Intercompany Claims shall be cancelled and extinguished, and the holders of such Intercompany Claims shall not be entitled to, or shall receive or retain, any property or interest in property on account of such Intercompany Claims. ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS Section 6.1 Distributions From the Third Party Release Fund. Holders of Allowed General Unsecured Claims against any of the Debtors shall share in the Third Party Release Fund, in accordance with the provisions of Article V of this Plan, but only to the extent that the holder of such an Allowed General Unsecured Claim does not vote to reject the Plan or affirmatively opt-out of the Third Party Release by Holders of Claims and Released Parties as set forth in Section 11.6(b) of this 39
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Plan. To the extent that the holder of an Allowed General Unsecured Claim against any of the Debtors either (i) votes to reject the Plan, or (ii) affirmatively opts-out of the of the Release by Holders of Claims and Released Parties as set forth in Section 11.6(b) of this Plan, then such holder of an Allowed General Unsecured Claim shall not be entitled to receive any Distribution from the Third Party Release Fund. Section 6.2 Distribution Record Date. Except as otherwise provided in the Plan, as of 12:00 p.m. (prevailing Eastern time) on the Distribution Record Date, there shall be no further changes in the record holders of any Claim against, or Equity Interest in, any of the Debtors, and the Plan Administrator shall have no obligation to recognize any transfer of any Claim against, or Equity Interest, in the Debtors occurring after the Distribution Record Date. The Plan Administrator shall be entitled to recognize and deal for all purposes under the Plan only with those record holders of Claims against, and Equity Interests in, the Debtors as of 12:00 p.m. (prevailing Eastern time) on the Distribution Record Date. Section 6.3 Manner of Payment. Any Distributions to be made on behalf of the applicable Estate pursuant to the Plan shall be made by checks drawn on accounts maintained by the Plan Administrator or by wire transfer if circumstances justify, at the option of the Plan Administrator, except as otherwise provided in the Disposition Procedures Order, the Confirmation Order or any other order entered in these Chapter 11 Cases. Section 6.4 Disbursement Agent. Except as otherwise provided in the Plan or the Confirmation Order, all transfers and Distributions required under the Plan shall be made in accordance with the terms and provisions of the Plan by the Plan Administrator, as Disbursement Agent, or such other entity designated by the Plan Administrator as Disbursement Agent. For the avoidance of doubt, the Plan Administrator or any such other entity designated by the Plan Administrator, shall act as Disbursement Agent with respect to all Distributions made on the Effective Date. Section 6.5 Delivery of Distributions. Subject to Bankruptcy Rule 9010, all Distributions to any holder of an Allowed Claim shall be made to the address of such holder as set forth in the Schedules or the books and records of the Debtors or its agents, as applicable, unless the Plan Administrator has been notified in writing of a change of address, including by the filing of a proof of claim by such holder that contains an address for such holder different from the address reflected in the Debtors Schedules or books and records. Section 6.6 Allocation of Distributions Between Principal and Interest. The aggregate consideration to be Distributed to the holders of Allowed Claims under the Plan shall be treated as first satisfying an amount equal to the stated principal amount of the Allowed Claims of such holders, as determined for federal income tax purposes, and any remaining consideration as satisfying accrued but unpaid interest, if any.
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Section 6.7 No Postpetition Interest on Claims. Except as otherwise provided in the Plan, the Confirmation Order, or other Final Order entered by the Bankruptcy Court, or as required by applicable law, postpetition interest shall not accrue on or after the Petition Date on account of any Claim. Section 6.8 No Distribution in Excess of Allowed Amount of Claim. Notwithstanding any other provision of the Plan, no holder of an Allowed Claim shall receive in respect of such Claim any Distribution in excess of the Allowed amount of such Claim. Section 6.9 Distributions with Respect to Disputed Claims. Notwithstanding any other provision of the Plan, if all or any portion of a Claim is a Disputed Claim, no payment or Distribution provided under the Plan shall be made on account of such Claim unless and until such Disputed Claim becomes an Allowed Claim. Until such time as a Disputed Claim is determined by Final Order, the Plan Administrator shall withhold on account of such Claim the Distribution to which the holder of such Claim would be entitled under Article V of the Plan if such Claim were Allowed in full, provided, however, that if Debtors or the Plan Administrator, after the Effective Date, seek to estimate any Disputed Claim for purposes of Distribution then the Plan Administrator shall be entitled to withhold on account of such Disputed Claim the amount of the Claim as estimated by the Bankruptcy Court. At such time as a Disputed Claim becomes an Allowed Claim, the Disbursement Agent shall distribute to the holder of such Claim the property distributable to such holder pursuant to the Plan. To the extent that all or a portion of a Disputed Claim is Disallowed or expunged, the holder of such Claim shall not receive any Distribution on account of the portion of such Claim that is Disallowed or expunged. Section 6.10 Distributions with Respect to Defendants. Notwithstanding any other provision of the Plan, the Plan Administrator may, in its discretion, withhold any Distributions on account of any portion of a Claim held by an entity that (a) is a defendant in any pending contested matter or adversary proceeding being prosecuted by the Plan Administrator or (b) against whom the Plan Administrator may assert a Cause of Action. Section 6.11 Disputed Payments. If any dispute arises as to the identity of a holder of an Allowed Claim that is to receive any Distribution under the Plan, the Disbursement Agent may, in lieu of making such Distribution to such entity, make such Distribution into an escrow account until such dispute is resolved by Final Order of the Bankruptcy Court or by written agreement among the interested parties to such dispute. Section 6.12 Setoffs. Except as otherwise provided in the Plan, the Confirmation Order, or in an agreement approved by a Final Order of the Bankruptcy Court, the Plan Administrator may, pursuant to applicable law (including section 553 of the Bankruptcy Code), set off against any Distribution related to any Claim before such Distribution is made on account of such Claim, any and all of the Claims (other than Claims released pursuant to the Plan), rights, and Causes of Action of any nature that the Debtors, the Estates, or Plan Administrator may hold against the holder of such 41
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Claim; provided, however, that none of the Debtors or the Plan Administrator shall, or shall be entitled, to assert any right to set off against (a) Macquarie Administrative Claim, (b) Scotiabank Administrative Claim, (c) Macquarie Secured Claim, (d) Scotiabank Secured Claim, (e) Macquarie Deficiency Claim, (f) Scotiabank-BHO Deficiency Claim, and (g) Scotiabank-Sakonnet Deficiency Claim; provided, further, that neither the failure to effect such a setoff, the allowance of any Claim hereunder, or any other act or omission of the Plan Administrator, nor any provision of the Plan, shall constitute a waiver or release by the Plan Administrator of any such Claims, rights and Causes of Action that the Plan Administrator may possess against such holder. To the extent that the Plan Administrator sets off a claim of the Estates against a holder of a Claim against the Debtors before a Distribution is made to the holder of such Claim against the Debtors pursuant to the Plan, the Plan Administrator shall be entitled to full recovery on the Debtors claim against such holder. No provision in the Plan shall be deemed to expand any right of setoff under applicable law. Notwithstanding the foregoing, no provision in the Plan, the Confirmation Order, or any other document that implements the Plan shall affect any setoff or recoupment right of the United States government. Section 6.13 Unclaimed Distributions and Time Bar to Cash Payments. If any Allowed Claim holders Distribution is returned as undeliverable, the Plan Administrator will take reasonable steps to attempt to deliver the Distribution to the holder of the Allowed Claim. Any holder of an Allowed Claim that does not advise the Plan Administrator that it has not received its, his or her Distribution within ninety (90) days after the date of attempted Distribution will have its, his or her Claim for such undeliverable Distribution discharged and will be forever barred from asserting any such Claim against the Debtor or its property. Distributions must be negotiated within ninety (90) days of the date of Distribution. Any Distributions which are undeliverable and unclaimed or have not been cashed within the time periods set forth above shall become available for Distribution to the holders of Allowed Claims in accordance with the Plan and the holder of an unclaimed or undeliverable Distribution shall not be entitled to any further Distribution under the Plan. Section 6.14 Distributions Free and Clear. Except as otherwise provided in the Plan, any Distribution or transfer made under the Plan, including, without limitation, Distributions to any holder of an Allowed Claim, shall be free and clear of any liens, Claims, encumbrances, charges and other interests, and no other entity shall have any interest, whether legal, beneficial or otherwise, in property distributed or transferred pursuant to the Plan. Section 6.15 De Minimis Distributions. Except as otherwise provided in the Plan, the Disbursement Agent shall not have any obligation to make a Distribution on account of an Allowed Claim if the amount to be Distributed to the holder of such Claim is less than $50.00 and does not constitute a final Distribution to such holder. The Disbursement Agent shall have no obligation to make any Distribution on account of Allowed Claims in an amount less than $50.00.
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Section 6.16 Transfer of Assets Under Plan. All transfers of Assets under the Plan shall be made in accordance with applicable nonbankruptcy law. ARTICLE VII MEANS FOR IMPLEMENTATION Section 7.1 Compromises and Settlements. Pursuant to Bankruptcy Rule 9019, the Plan incorporates the Macquarie Plan Term Sheet and Scotiabank Plan Term Sheet, which resolve all issues relating to the validity, priority, amount, and extent of the prepetition and postpetition liens and Claims of each of the Lenders that may have been asserted by or on behalf of the Debtors or the Debtors Estates. For the avoidance of doubt, to the extent that a provision in either the Macquarie Plan Term Sheet or the Scotiabank Plan Term Sheet is not expressly incorporated herein, such provision is deemed to be included in the Plan by reference. In addition, Debtors, Macquarie and the Hudner Released Parties have agreed to compromise and settle (i) any and all Claims that the Hudner Released Parties may have against any of the Debtors, and (ii) any and all Causes of Action that Debtors or their Estate may have against any of the Hudner Released Parties. Provided all parties shall have fully performed all obligations under the Brokerage and Incentive Agreement, then on the Effective Date, the Hudner Released Parties shall: (i) make the Hudner Released Parties Contribution; and (ii) waive and release any and all Claims that could have been asserted by the Hudner Released Parties against any of the Debtors, provided, however, that nothing herein or in the Confirmation Order shall be deemed to be an express or implied waiver of any defense, offset, counter claim, or cause of action that the Hudner Released Parties may assert with respect to any Creditor that does not participate in the Third Party Release Fund. In exchange for the consideration contributed by each of the Lenders and the Hudner Released Parties as set forth in this Plan, (i) the Lenders Secured Claims have been Allowed in full in accordance with the Plan, and Macquarie and Scotiabank (or their respective designees), subject to the terms of the Macquarie Plan Term Sheet and Scotiabank Plan Term Sheet, respectively, will receive the liquidated proceeds of their Macquarie Collateral and Scotiabank Collateral, respectively, (ii) the Hudner Released Parties shall be released by the Debtors estates and by the holders of Allowed General Unsecured Claims who do not affirmatively elect to opt-out of the Third Party Release set forth in Section 11.6(b) of the Plan or who do not vote to reject the Plan, and (iii) holders of Allowed Priority Claims and Allowed General Unsecured Claims will receive the Distributions set forth and described in Article V of this Plan, and holders of Allowed General Unsecured Claims will receive enhanced recoveries as a result of the settlements described in this paragraph, except that the Third Party Release Fund will not be available to holders of Allowed General Unsecured Claims who affirmatively elect to opt-out of the Third Party Release set forth in Section 11.6(b) of the Plan or who vote to reject the Plan. The Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, and the Debtors respective obligations thereunder shall survive confirmation of the Plan and be unaffected thereby. As of the Effective Date, Macquarie and BHM shall be deemed to have waived all of their respective rights to receive any and all of the Searose Receivable Proceeds, which shall be distributed to General Unsecured Creditors who do not affirmatively elect to opt-out of the Third Party Release set forth in Section 43
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11.6(b) of the Plan or who do not vote to reject the Plan. Notwithstanding whether Creditors vote to accept or reject the Plan, or whether Creditors opt-out of the Third Party Release, if the Plan is confirmed, then the Released Parties shall be released by the Debtors estates. The Released Parties shall be released under the Plan regardless of the amount and/or timing of the Distribution(s), if any, received by a Creditor under the Plan. Section 7.2 Plan Administrator.
(a) Appointment and Powers. As of the Effective Date, the Plan Administrator shall be a representative of the Estates pursuant to section 1123 of the Bankruptcy Code and shall be vested with the rights and obligations of a chapter 11 trustee with the full power of a board or directors, subject to input from the Steering Committee in accordance with an agreement that is consistent with the terms of the Plan. The Plan Administrator shall replace the Debtors existing management and board of directors and shall become the representative of the Debtors Estates. The Plan Administrator shall act for the Debtors in the same fiduciary capacity as applicable to an officer of the Debtors, subject to the provisions hereof (and all bylaws, articles of incorporation and related corporate documents are deemed amended by this Plan to permit and authorize the same). All Distributions to be made under the Plan shall be made by the Plan Administrator. References in the Plan and the Disclosure Statement to transfers and/or assignments of property to the Plan Administrator, the Debtors or the Estates to occur on or after the Effective Date shall be made, in the Plan Administrators discretion, either to the Debtors or the Plan Administrator for Distribution in accordance with the Plan. The duties and powers of the Plan Administrator, subject to oversight by the Steering Committee as set forth below shall include, but not be limited to, the following: (i) To exercise all power and authority that may be necessary to implement the Plan, commence and prosecute all proceedings that may be commenced and take all actions that may be taken by any officer of the Debtors with like effect as if authorized, exercised and taken by unanimous action of such officer, including consummating the Plan; (ii) To maintain all bank accounts, make Distributions and take other actions consistent with the Plan, including the maintenance of appropriate reserves, in the name of the Debtors; (iii) To take all steps reasonably necessary and practicable to terminate the corporate existence of the Debtors; (iv) To make decisions regarding the retention or engagement of professionals or other Persons by the Debtors, and to pay, without Bankruptcy Court approval, all reasonable fees and expenses of the Debtors and their Estates accruing from and after the Effective Date. 44
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To prosecute and/or settle Causes of Action where a net
recovery is probable; (vi) Except for any Vessels still owned by any of the Debtors as of the Effective Date, to sell the Debtors remaining Assets either through a private sale or auction, except that sales of Assets for consideration in excess of $100,000 shall be subject to approval of the Steering Committee; (vii) To purchase and maintain E&O insurance or similar coverage for the benefit of the Plan Administrator and the Steering Committee, in such amounts as may be deemed reasonably necessary by the Plan Administrator and the Steering Committee; (viii) To take all other actions not inconsistent with the provisions of the Plan which the Plan Administrator deems reasonably necessary or desirable in connection with the administration and consummation of the Plan; and (ix) To exercise all authority as a majority shareholder of the Debtors subsidiaries, and to exercise such other powers as may be vested in the Plan Administrator by order of the Bankruptcy Court. (b) Resignation, Death or Removal of Plan Administrator. The Plan Administrator may be removed at any time for cause shown (including fraud or gross negligence) upon application to, and subject to the approval of, the Bankruptcy Court on at least twenty (20) days prior written notice to the U.S. Trustee and the Plan Administrator and its counsel. In the event of the resignation or removal, death or incapacity of the Plan Administrator, counsel to the Plan Administrator shall, subject to approval of the Steering Committee and the U.S. Trustee or the Bankruptcy Court, designate another Entity to serve as Plan Administrator and thereupon the successor Plan Administrator, without any further act, shall become fully vested with all of the rights, powers, duties and obligations of the predecessor. (c) Investments. All Cash held by the Plan Administrator in any accounts or otherwise shall be invested in accordance with section 345 of the Bankruptcy Code or as otherwise permitted by a Final Order of the Bankruptcy Court. Nothing in the Plan shall modify any obligations the Debtors or the Plan Administrator may have with respect to placing the Debtors funds in approved depositories or to report to or pay fees to the United States Trustee. The Plan Administrator shall not be required to post a bond or other surety or guaranty in connection with its duties as Plan Administrator. (d) No Agency Relationship, Limitation of Liability of Plan Administrator, Indemnification and Insurance. The Plan Administrator and its, his or her agents shall not be deemed to be the agent for any of the creditors in connection with the Cash held or distributed pursuant to the Plan. The Plan Administrator and its, his or her agents shall not be liable for any mistake of fact or law or error of judgment or any act or omission of any kind unless it constitutes 45
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gross negligence or willful misconduct. The Plan Administrator shall be indemnified and held harmless, including the costs of defending such claims, by the Debtors and their Estates against any and all claims arising out of the performance of its, his or her duties under the Plan, except to the extent its, his or her actions constitute gross negligence or willful misconduct. The Plan Administrator may obtain, at the expense of the Debtors and their Estates, commercially reasonable liability or other appropriate insurance with respect to the indemnification obligation of the Plan Administrator. The Plan Administrator may conclusively rely, and shall be fully protected personally in acting upon, any statement, instrument, opinion, report, notice, request, consent, order, or other instrument or document which it, he or she believes to be genuine and to have been signed or presented by the proper party. The Plan Administrator may rely upon written information previously generated by the Debtors. (e) Reliance on Documents. The Plan Administrator may rely, and shall be protected in acting or refraining from acting, upon any certificates, opinions, statements, instruments or reports believed by it to be genuine and to have been signed or presented by the proper entity. (f) Requirement of Undertaking. The Plan Administrator may request any court of competent jurisdiction to require, and any such court may in its discretion require, in any suit for the enforcement of any right or remedy under the Plan, or in any suit against the Plan Administrator for any act taken or omitted by the Plan Administrator that the filing party litigant in such suit undertake to pay the costs of such suit, and such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant. Section 7.3 Steering Committee. On the Effective Date, a Steering Committee shall be constituted to oversee the liquidation and wind up of the Debtors and their Estates and shall consult with the Plan Administrator and have certain rights as set forth below. (a) The initial Steering Committee shall be constituted by members each holding one vote appointed as follows: (i) the Plan Administrator (1 member), (ii) the Creditors Committee (2 members), (iii) Macquarie (1 member); and (iv) Scotiabank (1 member). (b) Macquarie shall have veto power, which may be only exercised reasonably, with respect to the disposition of the Macquarie Collateral. Scotiabank shall have veto power, which may be only exercised reasonably, with respect to the disposition of the Scotiabank Collateral. (c) Each of Macquarie and Scotiabank shall resign from the Steering Committee as soon as it is no longer entitled to any further Distributions under the Plan. Upon such resignation, the Steering Committee shall be appropriately reconstituted if reasonable and necessary in accordance with the ongoing interests of the remaining entities entitled to Distributions under the Plan. 46
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(d) The scope and oversight the Steering Committee shall have over the Plan Administrator shall be described in the Plan Administrator Agreement. The agreement shall, among other things, require Steering Committee approval, pursuant to enumerated voting procedures contained in the agreement, of substantial actions proposed to be taken by the Plan Administrator, including without limitation, the liquidation, abandonment or other disposition of enumerated Assets and other Assets or groups of Assets of certain value thresholds, resolution of Claims above a certain dollar threshold, making Distributions, the incurrence and payment of significant post-Effective Date expenses, and reconstituting the Steering Committee based on vacancies or otherwise. Section 7.4 Administrative and Priority Claims Reserve. On the Effective Date, the Plan Administrator shall establish the Administrative and Priority Claims Reserve with the Administrative and Priority Claims Reserve Amount, funded with respect to (i) Administrative Expense Claims; (ii) Priority Tax Claims; and (iii) Other Priority Claims. As soon as practicable after all Administrative Expense Claims (other than the Macquarie Administrative Claim and Scotiabank Administrative Claim) and Priority Tax Claims have been either Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court, the Plan Administrator shall determine the amount of the Excess Administrative and Priority Claims Reserve and shall Distribute such Excess Administrative and Priority Claims Reserve to Macquarie. Section 7.5 General Unsecured Claims Reserve. On the Effective Date, the Plan Administrator shall establish the General Unsecured Claims Reserve with the General Unsecured Claims Reserve Amount. As Disputed General Unsecured Claims either become Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court, any remaining balance of the General Unsecured Claims Reserve shall be Distributed by the Plan Administrator to holders of Allowed Claims against the relevant Debtors in accordance with the provisions of this Plan. Section 7.6 Professional Claims Reserve. On the Effective Date, the Plan Administrator shall establish the Professional Claims Reserve with the Professional Claims Reserve Amount. As soon as practicable after all Professional Claims have been either Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court, the Plan Administrator shall determine the amount of the Excess Professional Claims Reserve and shall Distribute the Excess Professional Claims Reserve to Macquarie. Section 7.7 Causes of Action and Accounts Receivable.
(a) Preservation of Causes of Action and Accounts Receivable. In accordance with section 1123(b) of the Bankruptcy Code or any corresponding provision of federal or state laws, and except as otherwise provided in the Plan or the Confirmation Order, (i) on the Effective Date, all Causes of Actions and accounts receivable not constituting Macquarie Collateral or Scotiabank 47
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Collateral shall be transferred to the Plan Administrator, and (ii) on and after the Effective Date, all such Causes of Action and accounts receivable shall be retained by the Plan Administrator, who may enforce, sue on, settle, or compromise (or decline to do any of the foregoing) with respect to any or all of such Causes of Action and accounts receivable. (b) No Waiver. Except as otherwise provided in this Plan, the Macquarie Plan Term Sheet and the Scotiabank Plan Term Sheet, nothing in the Plan shall be deemed to be a waiver or relinquishment of any Claim, Cause of Action, account receivable, right of setoff, or other legal or equitable right or defense that the Estates may have or choose to assert on behalf of the Debtors or their respective Estates under any provision of the Bankruptcy Code or any applicable nonbankruptcy law. No entity may rely on the absence of a specific reference in the Plan to any Cause of Action or account receivable against it as an indication that the Plan Administrator will not pursue any and all available Causes of Action or accounts receivable against it, and all such rights to prosecute or pursue any and all Causes of Action or accounts receivable against any entity are expressly reserved for later adjudication and, therefore, no preclusion doctrine, including, without limitation, the doctrines of res judicata, collateral estoppel, estoppel (judicial, equitable or otherwise) or laches, shall apply to such Causes of Action or accounts receivable upon or after the confirmation or consummation of the Plan. Section 7.8 Effectuating Documents and Further Transactions. Upon entry of the Confirmation Order, each of the Lenders, Debtors, and the Plan Administrator is authorized and directed to execute, deliver, file or record such contracts, instruments, releases, consents, certificates, resolutions, programs and other agreements and documents and take such actions as may be reasonably necessary or appropriate to effectuate, implement, consummate and further evidence the terms and conditions of the Plan, including, without limitation, performing all obligations under the Plan. As of the Effective Date, no member, partner or equity security holder (as applicable) of the Debtors shall take any action that affects, alters or creates any additional or incremental liability for or imputed to the Debtors. Section 7.9 Authority to Act. Confirmation of this Plan shall effect, prior to, on, or after the Effective Date, as applicable, for the deemed approval of all matters expressly provided for under the Plan that otherwise would require approval of the stockholders, equity security holders, officers, directors, partners, managers, members, or other owners of one or more of the Debtors; and all such approvals shall be deemed in effect prior to, on, or after the Effective Date, as applicable, pursuant to the applicable laws of the countries in which the Debtors are formed, without any requirement of further vote, consent, approval, authorization or other action by such stockholders, equity security holders, officers, directors, partners, managers, members or other owners of such entities or notice to, order of or hearing before the Bankruptcy Court. Section 7.10 Operations During Post-Confirmation Period. During the Post-Confirmation Period, the Debtors will continue to operate their businesses and manage their affairs until the occurrence of the Effective Date. During the Post-Confirmation Period, operations and expenses 48
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shall be funded from available cash, including proceeds of Macquarie Collateral, pursuant to any budgets that have previously been approved by the Bankruptcy Court or that may be agreed among the Debtors, the Creditors Committee and Macquarie. Notwithstanding any other provision of the Plan, during the Post-Confirmation Period, the Debtors may continue to pay Critical Vendors, but subject to the written consent of the Creditors Committee and Macquarie. Notwithstanding entry of the Confirmation Order, the Debtors shall continue to dispose of the Macquarie Collateral Vessels in accordance with the Disposition Procedures Order. ARTICLE VIII PROCEDURES FOR DISPUTED CLAIMS Section 8.1 Objections to Claims. As of the Effective Date, the Plan Administrator shall have the exclusive right to file and prosecute objections to, and negotiate, settle or otherwise resolve, any and all Claims. In the event that any Debtor files an objection to, or motion to subordinate, a Claim prior to the Effective Date, on the Effective Date such objection or motion shall automatically be assigned to and shall be prosecuted by the Plan Administrator. Except as otherwise provided herein, any objection to a Claim shall be filed and served upon the holder of such Claim on or before the Claims Objection Deadline. Notwithstanding any authority to the contrary, an objection to a Claim shall be deemed properly served on the holder of such Claim or if service is made in any of the following manners (a) in accordance with rule 4 of the Federal Rules of Civil Procedure, as modified and made applicable by Bankruptcy Rule 7004, (b) by first class mail, postage prepaid, on any counsel that has appeared on behalf of the holder of such Claim in the Chapter 11 Cases and has not withdrawn such appearance, (c) by first class mail, postage prepaid, on the signatory on the respective proof of claim or interest or other representative identified on the proof of claim or interest or any attachment thereto, or (d) at the last known address of the holder of such Claim if no proof of claim is filed or if the Debtors or the Plan Administrator has been notified in writing of a change of address. Section 8.2 Estimation of Claims Post-Effective Date. As of the Effective Date, the Plan Administrator shall have the exclusive right to request at any time that the Bankruptcy Court estimate any Disputed Claim pursuant to section 502(c) of the Bankruptcy Code, for any reason or purpose, regardless of whether an objection has been previously filed with respect to such Claim, and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim including, without limitation, during the pendency of any appeal relating to any such objection. All of the aforementioned objection, estimation and resolution procedures are cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn, or otherwise resolved by any mechanism set forth in the Plan or approved by the Bankruptcy Court. Notwithstanding section 502(j) of the Bankruptcy Code, in no event shall any holder of a Claim that has been estimated be entitled to seek reconsideration of the estimation of such Claim unless the holder of such Claim has filed a motion 49
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requesting the right to seek such reconsideration on or before thirty (30) calendar days after the date such Claim is estimated by the Bankruptcy Court. Section 8.3 Settlement of Disputed Claims. Except as otherwise provided in the Plan and notwithstanding any requirements that may be imposed pursuant to Bankruptcy Rule 9019, as of the Effective Date, the Plan Administrator shall have the exclusive authority to compromise, settle, or otherwise resolve all Claims, rights, Causes of Actions, suits and proceedings, whether in law or in equity, whether known or unknown, that the Estates may hold against any entity, without the necessity for notice to or approval by the Bankruptcy Court or any other party in interest. ARTICLE IX EXECUTORY CONTRACTS AND UNEXPIRED LEASES Section 9.1 Assumption and Rejection of Executory Contracts and Unexpired Leases. Except as otherwise set forth in the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan or the Confirmation Order, all executory contracts and unexpired leases to which any of the Debtors are a party, including any executory contracts and unexpired leases, if any, previously assumed by the Debtors or entered into by the Debtors during the Chapter 11 Cases, shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code effective as of and subject to the occurrence of the Effective Date, except for those executory contracts or unexpired leases that (a) have already been rejected pursuant to a Final Order of the Bankruptcy Court or (b) have previously expired or terminated pursuant to their own terms (and not otherwise extended). Entry of the Confirmation Order by the Bankruptcy Court shall constitute an order of the Bankruptcy Court pursuant to sections 365 and 1123(b) of the Bankruptcy Code approving such rejections and determining that (a) with respect to such rejections, such rejected executory contracts or unexpired leases are burdensome and that the rejection thereof is in the best interests of the Estates and (b) with respect to such assumptions, that adequate assurance of future performance (within the meaning of section 365 of the Bankruptcy Code) by the assignee has been demonstrated and no further adequate assurance is required. Neither the Brokerage and Incentive Agreement nor the BHM Management Agreement shall be deemed automatically rejected under the Plan. As of the Effective Date, the Brokerage and Incentive Agreement and the BHM Management Agreement shall have been fully performed by all parties, and thus shall no longer be executory contracts subject to rejection. Confirmation of the Plan and entry of the Confirmation Order shall have no effect on the Brokerage and Incentive Agreement or the BHM Management Agreement, and no amounts ever paid thereunder shall be recoverable by the Debtors, their estates, the Plan Administrator or any person attempting to assert claims on behalf of the Debtors or their estates against the Hudner Releasees. Section 9.2 Objections to Rejection. Any non-Debtor party to an executory contract or unexpired lease that wishes to object to the rejection of such executory contract or unexpired lease, shall file an objection with the Bankruptcy Court prior to the Confirmation Objection Deadline and serve such objection on counsel to the Debtors. The failure to properly file and serve an objection to 50
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the rejection on or before the Confirmation Objection Deadline shall result in the non-Debtor party to the applicable executory contract or unexpired lease being (a) deemed to consent to such rejection and (b) barred, estopped, and permanently enjoined from (i) objecting to such rejection and precluded from being heard at the Confirmation Hearing with respect to such objection and (ii) asserting against the Debtors, the Estates, any of the Debtors property, or the Plan Administrator any default existing as of the Effective Date or any counterclaim, defense, setoff, or any other interest. With respect to any timely-filed and properly-served objection to the proposed rejection, the Debtors may, in their sole discretion, settle or otherwise resolve such objection, or respond to such objection (in which case the Bankruptcy Court shall determine such objection at the Confirmation Hearing). Section 9.3 Rejection Damage Claims. All Rejection Damage Claims shall be treated as General Unsecured Claims and classified in Classes A3-A through K3-A of the Plan, as the case may be (dependent upon which of the Debtors was the party to the subject executory contract or lease), and may be objected to in accordance with the provisions of Article VIII of the Plan and the applicable provisions of the Bankruptcy Code and the Bankruptcy Rules. All proofs of claim with respect to Rejection Damage Claims shall be filed with the Bankruptcy Court and served on the Plan Administrator on or before (a) the first Business Day that is thirty (30) calendar days after the Effective Date, with respect to the executory contracts and unexpired leases rejected pursuant to the Plan, (b) the first Business Day that is thirty (30) calendar days after entry of an order authorizing the rejection of the respective executory contract or unexpired lease, with respect to the executory contracts and unexpired leases rejected other than pursuant to the Plan, or (c) such other date as is ordered by the Bankruptcy Court. The failure to properly file and serve a proof of claim with respect to a Rejection Damage Claim by the applicable deadline set forth in this Section 9.3 shall result in such Claim being deemed forever barred and Disallowed as of the Effective Date without the need for any objection by the Plan Administrator or any action by the Bankruptcy Court. Section 9.4 Modifications. Any modifications, amendments, supplements, and restatements to prepetition executory contracts and unexpired leases that have been executed by the Debtors during the Chapter 11 Cases and actions taken in accordance therewith, (a) do not alter in any way the prepetition nature of the executory contracts and unexpired leases, or the validity, priority or amount of any Claims against the Debtors that may arise under such executory contract or unexpired lease, (b) are not and do not create postpetition contracts or leases, (c) do not elevate to Administrative Expense Claims any Claims of the counterparties to the executory contracts and unexpired leases against any of the Debtors, and (d) do not entitle any entity to a Claim under any section of the Bankruptcy Code on account of the difference between the terms of any prepetition executory contracts or unexpired leases and subsequent modifications, amendments, supplements or restatements.
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Section 10.1 Conditions Precedent to the Confirmation Date. The Plan shall not be confirmed unless and until the following conditions shall have been satisfied in full: (a) Disclosure Statement Approval Order. The Disclosure Statement Approval Order shall have been entered by the Bankruptcy Court in form and substance satisfactory to the Debtors, Macquarie, Scotiabank (with respect the Sakonnet and BHO Estates), and the Creditors Committee. (b) Plan Term Sheets. Each of the Macquarie Plan Term Sheet and Scotiabank Plan Term Sheet shall continue to be in full force and effect. (c) Brokerage and Incentive Agreement. Agreement shall continue to be in full force and effect. The Brokerage and Incentive
Section 10.2 Conditions Precedent to the Effective Date. The Effective Date shall not occur and the Plan shall not become effective unless and until the following conditions have been satisfied in full: (a) Confirmation Order. The Confirmation Order shall have been entered by the Bankruptcy Court in form and substance satisfactory to the Debtors, Macquarie, Scotiabank (with respect the Sakonnet and BHO Estates), and the Creditors Committee and shall be in full force and effect, and there shall not be a stay or injunction (or similar prohibition) in effect with respect thereto. (b) Other Acts; Execution and Delivery of Other Documents. All other actions and all agreements, instruments, or other documents necessary to implement the Plan shall have been (i) effected or (ii) duly and validly executed and delivered by the parties thereto and all conditions to their effectiveness shall have been satisfied or waived. (c) Disposition of Macquarie Collateral Vessels. Vessels shall have been fully disposed. The Macquarie Collateral
(d) Determination of Macquarie Collateral. The Cash Reconciliation shall have become effective and binding as specified in Section 5.2(a)(ii), or, if Macquarie or the Creditors Committee objected thereto in a timely manner, the parties shall have agreed or the Court shall have determined what constitutes Macquarie Collateral after taking into account the extent to which any cash that was used by Debtors prior to or after the Confirmation Date was traceable to the proceeds of any particular asset. 52
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(e) Brokerage and Incentive Agreement. All parties shall have fully performed all obligations under the Brokerage and Incentive Agreement. (f) Consents. The Debtors shall have received all authorizations, consents, approvals, regulatory approvals, rulings, letters, opinions or documents, if any, necessary to implement the Plan. (g) Reserves Funded. The Effective Date Cash Requirement shall have been funded, or reserved for, as applicable. Section 10.3 Waiver of Conditions Precedent. The conditions set forth in Section 10.2 of the Plan (other than the condition set forth in Section 10.2(c), which may only be waived by the Debtors and Macquarie) may be waived by the Debtors only with prior written consent of Macquarie, Scotiabank (with respect to the Sakonnet and BHO Estates) and the Creditors Committee. ARTICLE XI EFFECT OF CONFIRMATION Section 11.1 Vesting of Assets. As of the Effective Date, property of the Estates shall revest in the Debtors. The Debtors from and after the Effective Date (through the Plan Administrator) and without further Bankruptcy Court approval, may use, sell, transfer, assign, abandon or otherwise dispose of any of the Debtors remaining Assets for the purpose of liquidating and converting such assets to Cash, making Distributions and fully consummating the Plan. Section 11.2 Binding Effect. Subject to the occurrence of the Effective Date, on and after the Confirmation Date, the provisions of the Plan shall bind any holder of a Claim against, or Equity Interest in, the Debtors, and such holders respective successors and assigns, whether or not the Claim or Equity Interest of such holder is Impaired under the Plan, whether or not such holder has accepted the Plan, and whether or not such holder is entitled to a Distribution under the Plan. Section 11.3 Injunction Against Interference with the Plan. Upon entry of the Confirmation Order, each of the Debtors, all holders of Claims against, or Equity Interests in, any of the Debtors, and other parties in interest, along with any current or former officers, directors, employees, agents, representatives, partners, limited partners, members, trustees, managers, affiliates, parents, subsidiaries, attorneys, auditors, appraisers, accountants, financial advisors, investment bankers, consultants, or other professionals of any of the foregoing and any entity controlling or controlled by any of the foregoing and any predecessors, successors and assigns of any of the foregoing, shall be enjoined from seeking to oppose, delay, interfere or otherwise frustrate implementation or consummation of the Plan. 53
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Section 11.4 Term of Injunctions or Stays Arising Under or Entered During the Chapter 11 Cases. Except as otherwise provided in the Plan, to the extent permitted by applicable law and subject to the Bankruptcy Courts post-confirmation jurisdiction to modify the injunctions and stays under this Section 11.4 of the Plan, (a) all injunctions with respect to or stays against an action against property of the Debtors Estates arising under or entered during the Chapter 11 Cases under sections 105 or 362 of the Bankruptcy Code, and in existence on the Confirmation Date, shall remain in full force and effect until such property is no longer property of the Debtors Estates and (b) all other injunctions and stays arising under or entered during the Chapter 11 Cases under sections 105 or 362 of the Bankruptcy Code shall remain in full force and effect until the earliest of (i) the date that the Chapter 11 Cases are closed pursuant to a Final Order of the Bankruptcy Court or (ii) the date that the automatic stay is lifted pursuant to a Final Order of the Bankruptcy Court. Section 11.5 Exculpation. To the fullest extent permissible under applicable law, except as otherwise provided in the Plan, none of the Debtors, the Debtors Estates, the Released Parties, or any of such parties successors and assigns, shall have or incur any liability to, or be subject to any right of action by, any holder of a Claim against, or Equity Interest in, any of the Debtors, or any other party in interest, or any of their respective agents, employees, representatives, financial advisors, attorneys, or agents acting in such capacity, or any of their successors and assigns, for any act or omission in connection with, related to or arising out of, the Chapter 11 Cases, the operation of the Debtors businesses during the Chapter 11 Cases, the formulation, preparation, negotiation, dissemination, implementation, administration, confirmation, or consummation of the Plan or any other contract, instrument, release, agreement, settlement, or document created, modified, amended, terminated, or entered into in connection with the Plan or any other act or omission in connection with the Debtors bankruptcy; provided, however, that this Section 11.5 shall not apply to any fraud, gross negligence, or willful misconduct by the Debtors or the Released Parties; provided, further, however, that nothing in this Section 11.5 shall impact the Allowance or Disallowance or Plan treatment or Plan preserved rights against the Debtors of any Claim not expressly released under the Plan. Section 11.6 Releases.
(a) Release by the Estates. On the Effective Date, for good and valuable consideration, to the fullest extent permissible under applicable law, the Debtors, the Debtors Estates, and any person or entity seeking to exercise the rights of the Estates, including, without limitation, the Creditors Committee (in such derivative capacity for the Debtors Estates only) and its members (in such derivative capacity for the Debtors Estates only) and the Plan Administrator (collectively, Estate Releasing Parties), will be deemed to completely, conclusively, absolutely, unconditionally, irrevocably, and forever release the Released Parties, their successors, heirs and assigns and their respective property and interests in property, from any and all Claims, Equity Interests, liens, encumbrances, obligations, damages, demands, debts, suits, actions, Causes of Action, judgments, liabilities, or rights whatsoever, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or 54
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thereafter arising, in law, admiralty, equity, or otherwise, which the Estate Releasing Parties ever had, now has or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the Effective Date, including without limitation any Claims that are based in whole or in part upon any act, omission, transaction, agreement, event, or occurrence taking place on or prior to the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, the property of the Debtors, the business or contractual arrangements with any Debtor, the formulation, preparation, negotiation, dissemination, implementation, administration, confirmation, or consummation of the Plan or any other release or settlement created, modified, amended, terminated, or entered into in connection with the Plan, the restructuring of any Claims against, and Equity Interests in, the Debtors, the property to be Distributed under the Plan, or any other act or omission in connection with these Chapter 11 Cases, without further notice to or action by the Bankruptcy Court, or act or action under applicable law, regulation, order, or rule, or the vote, consent, authorization, or approval of any entity; provided however, that nothing herein shall effect a release of the obligations of the Debtors or of any Released Party (as applicable) under the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan or the Confirmation Order, regardless of the amount and/or timing of the Distribution(s), if any, received by a Creditor under the Plan. (b) Release by Holders of Claims. On the Effective Date, for good and valuable consideration, (a) the holders of Claims against the Debtors, regardless of voting or opting in or out of this Section 11.6(b), but only to the extent permissible under applicable law; and (b) the holders of Claims against the Debtors who (i) do not vote to reject the Plan or (ii) abstain from voting and do not elect to opt-out of the releases set forth in this Section 11.6(b) of the Plan by checking the appropriate box on their respective Ballot(s) (collectively, Creditor Releasing Parties), will be deemed to completely, conclusively, absolutely, unconditionally, irrevocably, and forever release the Released Parties, their successors, heirs and assigns and their respective property and interests in property, from any and all Claims, Equity Interests, liens, encumbrances, obligations, damages, demands, debts, suits, actions, Causes of Action, judgments, liabilities, or rights whatsoever, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, admiralty, equity, or otherwise, which the Creditor Releasing Parties ever had, now has or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the Effective Date, including without limitation any Claims that are based in whole or in part upon any act, omission, transaction, agreement, event, or occurrence taking place on or prior to the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, the property of the Debtors, the business or contractual arrangements with any Debtor, the formulation, preparation, negotiation, dissemination, implementation, administration, confirmation, or consummation of the Plan or any other release or settlement created, modified, amended, terminated, or entered into in connection with the Plan, the restructuring of any Claims against, and Equity Interests in, the Debtors, the property to be Distributed under the Plan, or any other act or omission in connection with these Chapter 11 Cases, without further notice to or action by the Bankruptcy Court, or act or action under applicable law, regulation, order, or rule, or the vote, consent, authorization, or approval of any entity; provided 55
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however, that nothing herein shall effect a release of the obligations of the Debtors or of any Released Party (as applicable) under the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan or the Confirmation Order, regardless of the amount and/or timing of the Distribution(s), if any, received by a Creditor under the Plan. Section 11.7 Injunction. Except as otherwise provided in the Plan, on the Effective Date, all holders of Claims against, and Equity Interests in, the Debtors, and the Released Parties shall be precluded and enjoined from asserting against the Released Parties, their successors and assigns, or any of their assets or property, whether in the possession of the Debtors or a transferee of such property under the Plan, any and all Claims, Equity Interests, liens, encumbrances, obligations, damages, demands, debts, suits, Causes of Action, judgments, liabilities or rights whatsoever that are released pursuant to the Plan or the Confirmation Order. Section 11.8 Exclusions and Limitations on Exculpation, Indemnification, and Releases. Except as otherwise provided in Section 13.3 of the Plan, nothing in the Confirmation Order or the Plan shall effect a release of any Claim by the United States government or any of its agencies or any state and local authority whatsoever, including, without limitation, any Claim arising under the Internal Revenue Code, the environmental laws or any criminal laws of the United States or any state and local authority against the Debtors, the Debtors Estates, or the Released Parties, nor shall anything in the Confirmation Order or the Plan enjoin the United States or any state or local authority from bringing any Claim, suit, action or other proceedings against the Debtors, the Debtors Estates, or the Released Parties for any liability whatever, including, without limitation, any Claim, suit or action arising under the Internal Revenue Code, the environmental laws or any criminal laws of the United States or any state or local authority, nor shall anything in the Confirmation Order or the Plan exculpate any party from any liability to the United States government or any of its agencies or any state and local authority whatsoever, including any liabilities arising under the Internal Revenue Code, the environmental laws or any criminal laws of the United States or any state and local authority against the Debtors, the Debtors Estates, or the Released Parties. Section 11.9 Dissolution of Creditors Committee. On the Effective Date, the Creditors Committee shall have no further powers or duties and shall be dissolved for all purposes, except with respect to: (i) obligations arising under confidentiality agreements, joint interest agreements, and protective orders entered during the Bankruptcy Case, which shall remain in full force and effect according to their terms; (ii) applications for and/or objections to Professional Claims; (iii) requests for compensation and reimbursement of expenses pursuant to section 503(b) of the Bankruptcy Code for making a substantial contribution in any of these Chapter 11 Cases; and (iv) any motions or other actions seeking enforcement or implementation of the provisions of this Plan or the Confirmation Order. The professionals retained by the Creditors Committee and the respective members thereof shall not be entitled to compensation and reimbursement of expenses for services rendered in that capacity after the Effective Date, except for services rendered in connection with applications for allowance of compensation and reimbursement of expenses pending on the Effective Date or filed 56
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after the Effective Date, which shall be promptly paid by the Plan Administrator from the Professional Claims Reserve upon rendition of appropriate invoices. Section 11.10 Post-Effective Date Services By Debtors Professionals. The professionals retained by the Debtors shall not be entitled to compensation and reimbursement of expenses for services rendered in that capacity after the Effective Date, except for services rendered in connection with applications for allowance of compensation and reimbursement of expenses pending on the Effective Date or filed after the Effective Date, which shall be promptly paid by the Plan Administrator from the Professional Claims Reserve upon rendition of appropriate invoices. ARTICLE XII RETENTION OF JURISDICTION Section 12.1 Retention of Jurisdiction. On and after the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction, to the fullest extent permissible under law, over all matters arising in, arising under, or related to the Chapter 11 Cases and the Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and for, among other things, the following purposes: (a) To enforce the terms of, and to hear and determine any motions, adversary proceedings, applications, contested matters, or other litigated matters relating to, the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan and/or the Confirmation Order; (b) To hear and determine any applications for the rejection of executory contracts or unexpired leases and the allowance of Claims resulting therefrom; (c) To hear and determine any motions, adversary proceedings, applications, contested matters, and other litigated matters pending on, or commenced by the Plan Administrator after, the Effective Date; (d) (e) provided herein; To determine and resolve controversies relating to the Plan Administrator; To ensure that Distributions to holders of Allowed Claims are accomplished as
(f) To hear and determine all matters related to the allowance, disallowance, liquidation, classification, priority, compromise, estimation or payment of any Claims or Equity Interests, including any objections to, or requests for estimation of, Claims or Equity Interests, whether filed, asserted, or made before or after the Confirmation Date; (g) To enter, implement or enforce such orders as may be appropriate in the event that the Confirmation Order is for any reason stayed, reversed, revoked, modified or vacated; 57
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(h) To issue injunctions, enter and implement other orders, and take such other actions as may be necessary or appropriate to restrain interference by any entity with the consummation, implementation or enforcement of the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, the Plan, the Confirmation Order or any other order of the Bankruptcy Court; (i) To hear and determine any applications to modify the Plan to cure any defect or omission or reconcile any inconsistency in the Plan, or any order of the Bankruptcy Court, including the Confirmation Order, in such a manner as may be necessary to carry out the purposes and effects thereof; (j) To hear and determine any applications for compensation for services rendered and reimbursement of expenses incurred to the extent authorized to be paid or reimbursed under the Plan or the Bankruptcy Code; (k) To hear and determine disputes arising in connection with the interpretation, implementation or enforcement of the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan, the Confirmation Order, any transactions, Distributions or payments contemplated hereby, or any agreement, instrument, or other document governing or relating to any of the foregoing; (l) To hear and determine disputes arising in connection with statements for fees and expenses incurred by counsel or any other professional retained by the Plan Administrator; (m) To take any actions and issue such orders as may be necessary to construe, enforce, implement, execute, and consummate the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, or the Plan, or to maintain the integrity thereof following consummation; (n) To determine any other matters that may arise in connection with or are related to the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, the Plan, the Confirmation Order, or any other contract, instrument, release or other agreement or document related to the Plan; (o) To hear and determine all disputes involving the existence, nature or scope of the injunctions and releases granted under the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, the Plan, the Confirmation Order, or the Bankruptcy Code; (p) To hear and determine any matters concerning state, local, or federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code (including any requests for expedited determinations under section 505(b) of the Bankruptcy Code); (q) To enforce all orders, judgments, injunctions, releases, exculpations, indemnifications, and rulings entered in connection with the Chapter 11 Cases;
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(r) To consider and act on the compromise and settlement of any Claim, Equity Interest, Cause of Action, or defense by, on behalf of, or against the Estates, to the extent that Bankruptcy Court approval is required; (s) To hear and determine any rights, Claims, Equity Interests, or Causes of Action held by or accruing to the Estates and all related reserves pursuant to the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, Order, the Plan, the Confirmation Order, the Bankruptcy Code, or any federal or state law; (t) To resolve any matters relating to the sale of property of the Debtors Estates;
(u) To hear and determine any other matters related hereto and not inconsistent with the Bankruptcy Code and title 28 of the United States Code; (v) To recover all assets of any of the Debtors and property of the applicable Debtors Estate, wherever located, and to hear and determine all adversary proceedings or other litigations related thereto; and (w) To enter a final decree closing the Chapter 11 Cases.
For the avoidance of doubt, nothing in this Section 12.1 of the Plan or any other provision of the Plan shall be construed to expand or limit the Bankruptcy Courts jurisdiction beyond that permitted under applicable law. ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.1 Payment of Statutory Fees. All fees payable pursuant to section 1930 of title 28 of the United States Code that are due and payable as of the Effective Date shall be paid by the Plan Administrator on or as soon as reasonably may be practicable after the Effective Date. All such fees that become due and payable after the Effective Date shall be paid by the Plan Administrator when such fees become due and payable. Section 13.2 Substantial Consummation. On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code. Section 13.3 Exemption from Transfer Taxes. Pursuant to section 1146(a) of the Bankruptcy Code, (a) the issuance, transfer or exchange of any security under, in furtherance of, or in connection with, the Plan or (b) the assignment or surrender of any lease or sublease, or the delivery of any instrument of transfer under, in furtherance of, or in connection with, the Plan, including, without limitation, any deed, asset purchase agreement, bill of sale, assignment, mortgage, 59
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deed of trust or similar document executed in connection with any disposition of assets contemplated by the Plan (including real and personal property), shall not be subject to any stamp tax, real estate transfer tax, recording tax, sales tax, personal property tax, mortgage tax, use tax, or other similar tax, or any Uniform Commercial Code filing or recording fee or similar or other government assessment. The Confirmation Order shall direct the appropriate state or local government officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment. Section 13.4 Determination of Tax Liabilities. The Plan Administrator (as applicable) shall, pursuant to section 505(b) of the Bankruptcy Code, have the right to request an expedited determination of any unpaid liability of any of or all the Debtors Estates for any tax incurred during the administration of the Chapter 11 Cases. As of the Effective Date, the Plan Administrator shall be responsible for preparing and filing any tax forms or returns on behalf of the Debtors or the Debtors Estates; provided, however, that the Plan Administrator shall not be responsible for preparing or filing any tax forms for holders of Equity Interests in any of or all the Debtors (which Equity Interests shall be canceled pursuant to the Plan), but shall provide such holders with any information reasonably required to prepare such forms. Section 13.5 Withholding and Reporting Requirements. All Distributions under the Plan shall be subject to federal, state, local, and foreign withholding taxes or other amounts required to be withheld under any applicable law and such amounts shall be deducted and withheld from any Distributions made pursuant to the Plan. Any amount so deducted and withheld shall be deemed paid to the holders of Allowed Claims. All holders of Allowed Claims shall be required to provide to the Plan Administrator any information necessary to effectuate the withholding of such taxes. Notwithstanding the foregoing, each holder of an Allowed Claim that is to receive a Distribution shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any governmental unit on account of such Distribution. The Plan Administrator shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including, without limitation, establishing any mechanisms the Plan Administrator believes is reasonable and appropriate, including, without limitation, requiring holders of Claims to submit appropriate tax withholding certifications. Section 13.6 Modification and Amendment. Debtors may, with the prior written consent of Macquarie and the Creditors Committee, alter, amend, modify, or supplement the Plan pursuant to section 1127(a) of the Bankruptcy Code at any time prior to the Confirmation Date. After the Confirmation Date and prior to substantial consummation of the Plan, Debtors may, with the prior written consent of Macquarie and the Creditors Committee, and upon order of the Bankruptcy Court, amend or modify the Plan in accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan as may be necessary to carry out the purpose and effects of the Plan. A holder of a Claim against the Debtors that has accepted the Plan shall be deemed to have accepted the Plan as altered, amended, or modified if the 60
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proposed alteration, amendment, or modification does not materially and adversely change the treatment of the Claim of such holder. Section 13.7 Severability. In the event that prior to the entry of the Confirmation Order, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Debtors, and with the prior written consent of Macquarie, shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and in no way will be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms. If any separate Plan is unconfirmable, the Debtors, with the prior written consent of the Lenders and the Creditors Committee, shall have the right to sever that Plan and proceed with the confirmation of all other Plans. Section 13.8 Notice of Entry of Confirmation Order and Relevant Dates. As soon as may reasonably be practicable after entry of the Confirmation Order, Debtors shall, as directed by the Bankruptcy Court, publish and serve on all known parties in interest and holders of Claims against, and Equity Interests in, the Debtors, notice of the entry of the Confirmation Order and all relevant deadlines and dates under the Plan, including, without limitation, the Administrative Expense Claim Bar Date and the deadline for filing Rejection Damage Claims. Section 13.9 Courts of Competent Jurisdiction. In the event that the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter arising in, arising under, or related to the Chapter 11 Cases or the Plan, such abstention, refusal, or failure of jurisdiction shall have no effect upon and shall not control, prohibit, or limit the exercise of jurisdiction by any other court having competent jurisdiction with respect to such matter. Section 13.10 No Admissions. As to contested matters, adversary proceedings, and other Causes of Action, the Plan shall not constitute or be construed as an admission of any fact or liability, stipulation, or waiver, but rather as a statement made in settlement negotiations. The Plan shall not be construed to be conclusive advice on the tax and other legal effects of the Plan as to holders of Claims against, and Equity Interests in, the Debtors. Section 13.11 Currency. Where a Claim has been denominated in foreign currency on a proof of claim, the Allowed amount of such Claim shall be calculated in currency of the United States of America based upon the conversion rate in place as of the Petition Date and in accordance with section 502(b) of the Bankruptcy Code. 61
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Section 13.12 Governing Law. Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit, schedule, or supplement hereto provides otherwise, the rights, duties, and obligations arising under the Plan and any agreements, documents and instruments executed in connection with the Plan (except as otherwise expressly provided in such agreements, documents, and instruments) shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws of such jurisdiction. Section 13.13 Schedules, Exhibits and Supplements. All schedules, exhibits, and supplements to the Plan are incorporated into and are a part of the Plan as if set forth in full herein. Copies of the schedules, exhibits, and supplements to the Plan may be accessed on the docket electronically maintained by the clerk of the Bankruptcy Court or inspected in the office of the clerk of the Bankruptcy Court during normal business hours. Section 13.14 Notices. Any notice required or permitted to be provided under the Plan to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided in the Plan, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows: STEVENS & LEE, P.C. Nicholas F. Kajon John D. Demmy Constantine D. Pourakis 485 Madison Avenue, 20th Floor New York, New York 10022 Telephone: (212) 319-8500 Facsimile: (212) 319-8505 nfk@stevenslee.com jdd@stevenslee.com cp@stevenslee.com Section 13.15 Counterparts. This Plan may be executed in one or more counterparts, which when taken together, shall constitute a single instrument. Dated: New York, New York December 17, 2012 B+H OCEAN CARRIERS LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory 62
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Filed 12/17/12 Entered 12/17/12 16:39:10 Pg 68 of 69 OBO HOLDINGS LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory BHOBO ONE LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory BHOBO TWO LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory
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Filed 12/17/12 Entered 12/17/12 16:39:10 Pg 69 of 69 BHOBO THREE LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory RMJ OBO SHIPPING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory SEASAK TRADING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory SAKONNET SHIPPING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory SEAPOWET SHIPPING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory STRAITS OFFSHORE LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory
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PRODUCT TRANSPORT CORP. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory
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Doc 327-1 Filed 12/17/12 Entered 12/17/12 16:39:10 B+H Term Sheet Macquarie Pg 1 of 4 EXHIBIT A Macquarie Plan Term Sheet
Exhibit A -
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TERM SHEET BETWEEN DEBTORS AND MACQUARIE CONCERNING PLAN OF REORGANIZATION

THIS SUMMARY/TERM SHEET AND THE INFORMATION CONTAINED HEREIN (THE TERM SHEET) IS PROVIDED IN THE CONTEXT OF SETTLEMENT NEGOTIATIONS BETWEEN B+H OCEAN CARRIERS (BHO) AND ITS CHAPTER 11 DEBTOR AFFILIATES (COLLECTIVELY, THE DEBTORS) AND MACQUARIE BANK LIMITED AND MACQUARIE US TRADING LLC. THE TERM SHEET REFLECTS NUMEROUS CONTINGENCIES AND IS SUBJECT TO CONFIRMATION OF A PLAN OF REORGANIZATION AND ENTRY OF A CONFIRMATION ORDER IN FORM AND SUBSTANCE ACCEPTABLE TO THE PARTIES. NOTHING IN THE TERM SHEET IS A SOLICITATION FOR ANY CHAPTER 11 PLAN OF REORGANIZATION.
Item Support
Description Provided the terms herein are incorporated in the Plan of Reorganization (the Plan), the Debtors and Macquarie will support the Plan. Taking into consideration both their pre-petition security interests and replacement liens, all deficiency claims held by (i) Macquarie Bank Limited (Macquarie Bank), as lender, and (ii) Macquarie US Trading LLC (Macquarie US), as successor agent to Nordea Bank Norge SA (Macquarie Bank and Macquarie US are collectively hereinafter referred to as Macquarie), will be subordinated to the claims of other general unsecured creditors until such time that $4 million becomes distributable to such general unsecured creditors (the Deficiency Threshold). All general unsecured creditors, which will include trade, bondholder, any other holders of deficiency, tort claims, etc. (Unsecured Claims), will be subject to a Debtor-by-Debtor waterfall that reflects a settlement of the cases substantive consolidation, intercompany claim, and single claim against multiple Debtors issues. All 507(b) administrative claims will be subordinated to Unsecured Claims until such time that $4 million becomes distributable to Unsecured Claims (the 507(b) Threshold). * TTMI/JPMC $350,000 of net proceeds of settlement amount to the estate; remainder will be cash collateral. * ADM 10% of net proceeds to the estate with a budget line item estimated to be sufficient to fund the matter to an award or judgment; remainder will be cash collateral. * Eight-point winch system and crane deposit 100% to the estate.
Deficiency Claims
507(b) Administrative Claims
Allocation of Proceeds from Certain Estate Assets
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* Any other claims or causes of action that are Macquaries prepetition collateral 10% of net recoveries to the estate with the remainders as cash collateral. * Value of any bunker or other fuels and lubes on each vessel at the time of its disposition plus value of vessels (collectively, the Vessel Disposition Contribution, as further defined in the chart below) to the estate; remainder to Macquarie immediately upon disposition. Budget and Timeline There shall be a mutually acceptable budget (and wind down timeline) sufficient to fund the case and the Plan confirmation process through the occurrence of both of the following events: (i) the effective date of the Plan, and (ii) the disposition of all vessels. The budget will be funded by estate assets including the use of cash collateral, including the portion of the TTMI settlement proceeds that are allocated as Macquaries collateral. The budget will provide for the payment of all allowed administrative and priority claims. The budget and timeline will be for the minimum amount of time necessary to liquidate the Debtors assets and confirm a liquidating Plan. Other than Causes of Action to be released under the Plan, Chapter 5 claims will be retained causes of action that the Plan Administrator will have standing to pursue, and the proceeds of which will not be encumbered by Macquaries liens and Macquarie will not be entitled to any distribution from such proceeds unless and until the Deficiency Threshold is reached (Retained Causes of Action). There will be a full estate release of all claims, including challenges to perfection on cash and otherwise. Macquarie will not be entitled to any distributions exceeding 100% of its claims allowed in accordance with section 506(a).
Chapter 5 Claims
Macquarie Claims
Vessel Disposition Contribution shall mean the percentage of net proceeds from the disposition of each vessel and bunkers as set forth in the second column of the chart below. Amount of Net Proceeds from Disposition of Each Vessel Less than $4,999,999 $5,000,000 to $5,499,999 $5,500,000 to $5,999,999 $6,000,000 to $6,499,999 2 Contribution to Estate (% of net proceeds) 1% 2.5% 3.5% 4.5%
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$6,500,000 to $6,999,999 $7,000,000 to $7,499,999 $7,500,000 and over
5.5% 6% 7%
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Doc 327-2 Filed 12/17/12 Entered 12/17/12 16:39:10 Executed Scotiabank Term Sheet Pg 1 of 4 EXHIBIT B Scotiabank Plan Term Sheet
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Doc 327-3 Filed 12/17/12 Entered 12/17/12 16:39:10 Plan Administration Agreement Pg 1 of 16 EXHIBIT C Form of Plan Administrator Agreement
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PLAN ADMINISTRATION AGREEMENT BETWEEN B+H OCEAN CARRIERS LTD., BHOBO ONE LTD., BHOBO TWO LTD., BHOBO THREE LTD., RMJ OBO SHIPPING LTD., SAKONNET SHIPPING LTD., STRAITS OFFSHORE LTD., SEAPOWET SHIPPING LTD., OBO HOLDINGS LTD., SEASAK TRADING LTD., PRODUCT TRANSPORT CORP. AND BUCHWALD CAPITAL ADVISORS LLC DATED AS OF FEBRUARY ___, 2013
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PLAN ADMINISTRATION AGREEMENT This Plan Administration Agreement (the Agreement) is made as of this ___ day of February, 2013, by and among: B+H Ocean Carriers Ltd., BHOBO One Ltd., BHOBO Two Ltd., BHOBO Three Ltd., RMJ OBO Shipping Ltd., Sakonnet Shipping Ltd., Straits Offshore Ltd., Seapowet Shipping Ltd., OBO Holdings Ltd., Seasak Trading Ltd., Product Transport Corp. (collectively, the Debtors) and Buchwald Capital Advisors LLC (hereafter, sometimes, the Plan Administrator). Notwithstanding the date of execution, the Plan Administration Agreement shall only become effective on the Effective Date (as defined in the Plan). RECITALS WHEREAS, on May 30, 2012, all the Debtors other than Seasak Trading Ltd. commenced bankruptcy cases (singularly, a Bankruptcy Case and, collectively, the Bankruptcy Cases) in the United States Bankruptcy Court for the Southern District of New York (the Bankruptcy Court) by filing voluntary petitions for relief under chapter 11 of the United States Code, 11 U.S.C. 101-1330 (as amended, the Bankruptcy Code), and, on June 1, 2012, Seasak Trading Ltd. filed its voluntary petition for relief under chapter 11 of the Bankruptcy Code with the Bankruptcy Court; and WHEREAS, on November 6, 2012, the Debtors filed the Amended Joint Plan of Reorganization of Debtors B+H Ocean Carriers, Ltd., et al., Under Chapter 11 of the Bankruptcy Code, as may be amended by Debtors or modified by order of the Bankruptcy Court (the Plan) with the Bankruptcy Court; and WHEREAS, Buchwald Capital Advisors, LLC is a New York limited liability company; and WHEREAS, pursuant to, and upon the Effective Date of, the Plan, all of the Debtors property shall be vested in the Debtors in accordance with the terms of the Plan; and WHEREAS, the Plan contemplates that upon and after the Effective Date of the Plan the rights, powers and duties of the Debtors under the Plan and otherwise under applicable law shall be exercised by the Plan Administrator, and/or may be exercised by the Plan Administrator, all as provided for in the Plan and in this Plan Administration Agreement; and WHEREAS, all capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Plan. NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth herein, the parties to this Plan Administration Agreement hereby agree as follows:
2
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ARTICLE I PLAN ADMINISTRATOR 1.1. Appointment. The Debtors, with the acknowledgement and consent of the Creditors Committee, appoint Buchwald Capital Advisors, LLC to serve as the initial Plan Administrator under the Plan, and Buchwald Capital Advisors, LLC hereby accepts such appointment and agrees to serve as Plan Administrator under the Plan, effective upon the Effective Date of the Plan. Buchwald Capital Advisors, LLC agrees to observe and perform all duties and obligations of the Plan Administrator under the Plan. In the event that the Plan Administrator is removed or resigns pursuant to the Plan Administration Agreement or the Plan Administrator otherwise vacates the position, a successor Plan Administrator shall be appointed in accordance with section 4.3 hereof. 1.2. General Scope of Authority. (a) The Plan Administrators powers are exercisable solely in a fiduciary capacity consistent with, and in furtherance of, the purposes of the Plan. The Plan Administrator shall have the authority to manage, handle, litigate, settle, resolve, commit and dispose of all Cash, Assets, Causes of Action (including the Scotiabank-Sakonnet EBC Arbitration Claim and the ADM Arbitration), and any and all other property of the Estates which, under the Plan, are subject to administration by the Plan Administrator (collectively, Estate Property) as soon as practicable upon or after the Effective Date of the Plan, and shall for all purposes hereunder be acting in its capacity as Plan Administrator and not in its individual capacity. The Plan Administrator may consult with the Steering Committee on and after the Effective Date concerning the Plan Administrators duties. (b) The responsibilities of the Plan Administrator under this Plan Administration Agreement, the Confirmation Order and the Plan shall include, without limitation, the following: (i) establishment and maintenance of such operating, reserve and trust account(s) as are necessary and appropriate to wind up the affairs of the Debtors; (ii) investment of Cash; (iii) pursuit of objections to, estimations of and settlements of Claims and Equity Interests, regardless of whether any such Claim or Equity Interest is listed in the Debtors Schedules of Assets and Liabilities, Statement of Financial Affairs or any similar documents, instruments or pleadings filed with the Bankruptcy Court; (iv) prosecution of any Causes of Action of the Debtors not otherwise released under the Plan, as set forth herein; (v) calculation and distribution of all Distributions to be made under this Plan to holders of Allowed Claims; (vi) filing of all required tax returns and operating reports and paying of taxes and all other obligations on behalf of the Debtors and their Estates, if any; (vii) filing of periodic reports regarding the status of Distributions under the Plan to holders of Allowed Claims that are outstanding against the Debtors at any such time; (viii) payment of fees pursuant to 28 U.S.C. 1930 incurred after the Effective Date until the closing of the Bankruptcy Cases; (ix) taking of all steps necessary to terminate and perform any follow-up activities after termination of any benefit plans of the Debtors; and (x) such other responsibilities as may be vested in the Plan Administrator pursuant to the Plan, this Plan Administration Agreement, the Confirmation Order, other Bankruptcy Court orders, or as otherwise may be necessary and proper to carry out the provisions of the Plan including, without limitation seeking a Final Order closing any or all of the Bankruptcy Cases. 3
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1.3. Powers. (a) The powers of the Plan Administrator shall, without any further Bankruptcy Court approval (except as specifically required herein) and subject in all respects to the other terms and conditions of the Plan and this Plan Administration Agreement, include (i) the power to invest funds in, and withdraw, make distributions and pay other obligations owed by the Debtors Estates from the appropriate Estate Property held by the Plan Administrator in accordance with the Plan, (ii) the power to engage employees and professionals to assist the Plan Administrator with respect to its responsibilities, (iii) the power to litigate, compromise and settle Causes of Action1 on behalf of or against the Debtors and the Estates, and (iv) such other powers as may be vested in or assumed by the Plan Administrator pursuant to the Plan, the Confirmation Order or further Bankruptcy Court order, or as may be necessary and proper to carry out the provisions of the Plan. Except as expressly set forth in this Plan Administration Agreement or the Plan, the Plan Administrator shall have absolute discretion to pursue or not to pursue Causes of Action as it determines is in the best interests of the beneficiaries of the Plan and consistent with the purposes of the Plan, and shall have no liability for the outcome of its decision, except as such decision may constitute an act of gross negligence or willful misconduct. The Plan Administrator may incur any reasonable and necessary expenses in liquidating and converting any Estate Property to cash. (b) In connection with administering the Plan, except as otherwise set forth in this Plan Administration Agreement or the Plan, the Plan Administrator, in consultation with the Steering Committee as such may be required by the Plan, is authorized to perform any and all acts necessary and reasonable to accomplish the purposes of the Plan. Without limiting, but subject to the foregoing, and subject in all respects to the other terms and conditions of this Plan Administration Agreement, the Plan Administrator shall be expressly authorized, but shall not be required to: (i) Exercise all power and authority that may be or could have been exercised, commence all proceedings that may be or could have been commenced and take all actions that may be or could have been taken by any general or limited partner, officer, director or shareholder of the Debtors with like effect as if authorized, exercised and taken by unanimous action of such officers, directors and shareholders, including, without limitation, amendment of the certificates of incorporation and by-laws of the Debtors; (ii) Maintain accounts, to make distributions to holders of Allowed Claims provided for or contemplated by the Plan; and take other actions consistent with the Plan and the Plan Administration Agreement and the implementation thereof, including the establishment, re-evaluation, adjustment and maintenance of appropriate reserves, including the Administrative
1
For the purposes of this Plan Administration Agreement only, the term Causes of Action, which, as used in the Plan excludes the Scotiabank-Sakonnet EBC Arbitration Claim and the ADM Arbitration, shall include the Scotiabank-Sakonnet EBC Arbitration Claim and the ADM Arbitration, as it is acknowledged and agreed by Debtors and the Creditors Committee that the Plan Administrator shall have the authority to handle, manage and litigate the ScotiabankSakonnet EBC Arbitration Claim and the ADM Arbitration for the benefit of the holders of Claims under the Plan. 4
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and Priority Claims Reserve, the General Unsecured Claims Reserve and the Professional Claims Reserve, in the name of the Plan Administrator; (iii) Object to any Claims or Equity Interests (whether Disputed or otherwise), to compromise or settle any Claims or Equity Interests prior to objection without supervision or approval of the Bankruptcy Court, free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, the local rules of the Bankruptcy Court, and the guidelines and requirements of the United States Trustee, other than those restrictions expressly imposed by the Plan, the Confirmation Order or the Plan Administration Agreement; (iv) Sell or otherwise liquidate any non-Cash assets as necessary or desirable without further Bankruptcy Court approval; (v) Make decisions, without further Bankruptcy Court approval, regarding the retention or engagement of professionals, employees and consultants, and to pay the fees and charges incurred by the Plan Administrator on or after the Effective Date for fees and expenses of professionals (including those retained by the Plan Administrator), disbursements, expenses or related support services relating to the winding down of the Debtors and implementation of the Plan without application to the Bankruptcy Court; (vi) (a) seek a determination of tax liability under Bankruptcy Code section 505, if any (b) pay taxes, if any, related to the Debtors or the sale of non-Cash assets of the Debtors, (c) file, if necessary, any and all tax and information returns, (d) make tax elections by and on behalf of the Plan Administrator and (e) pay taxes, if any, payable by the Estate; (vii) Take all other actions not inconsistent with the provisions of the Plan which the Plan Administrator deems reasonably necessary or desirable with respect to administering the Plan; (viii) Invest Cash as deemed appropriate by the Plan Administrator and in compliance with section 345 of the Bankruptcy Code; (ix) Collect any accounts receivable or other claims of the Debtors or the Estates on behalf of the appropriate beneficiaries not otherwise disposed of pursuant to the Plan or the Confirmation Order; (x) Maintain any books and records, including financial books and records, as is necessary and/or appropriate in the Plan Administrators discretion; (xi) Implement and/or enforce all provisions of this Plan, including entering into any agreement or executing any document required by or consistent with the Plan, the Confirmation Order and the Plan Administration Agreement and perform all of the Debtors obligations thereunder; (xii) Abandon in any commercially reasonable manner, including abandonment or donation to a charitable organization of its choice, any assets if the Plan Administrator concludes that they are of no benefit to the Estates; 5
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(xiii) Investigate, prosecute and/or settle Causes of Action, Administrative Claims, Secured Claims, Priority Claims and General Unsecured Claims, without approval of the Bankruptcy Court, and in such regard participate as a party in or initiate either any contested matter or adversary proceeding with the Bankruptcy Court, any action in any other court of appropriate jurisdiction, or any administrative, arbitrative or other nonjudicial proceeding, and pursue to settlement. Final Order or judgment such actions; (xiv) Purchase and maintain E&O insurance or similar coverage for the benefit of the Plan Administrator and the Steering Committee, in such amounts as may be deemed reasonably necessary by the Plan Administrator and the Steering Committee, and pay all insurance premiums and costs the Plan Administrator deems necessary or advisable; (xv) Collect and liquidate and/or distribute all assets of the Estates pursuant to the Plan, the Confirmation Order and the Plan Administration Agreement and administer the winding down of the affairs of the Debtors; (xvi) Hold legal title to any and all Estate Property or any other assets necessary; (xvii) Pay any and all fees incurred pursuant to 28 U.S.C. 1930 and to file all necessary reports with the Bankruptcy Court until such time as a Final Order is entered or the Bankruptcy Court orders otherwise; and (xviii) Exercise such other powers as may be vested in or assumed by the Plan Administrator pursuant to the Plan, the Plan Administration Agreement, the Confirmation Order, other orders of the Bankruptcy Court, or as may be desirable, necessary and/or proper to carry out the provision of the Plan and to wind up the affairs of the Debtors. 1.4. Additional Powers. Except as otherwise set forth in this Plan Administration Agreement or in the Plan, and subject to the retained jurisdiction of the Bankruptcy Court as provided for in the Plan, but without prior or further authorization, the Plan Administrator may control and exercise authority over the Estate Property and over the protection, conservation and disposition thereof. No Person or entity dealing with the Plan Administrator shall be obligated to inquire into its authority in connection with the protection, conservation or disposition of the Estate Property. It is intended that a signed copy of the Plan Administration Agreement will serve as adequate proof of the Plan Administrators authority to act if such proof is required for any reason by a third party. The enumeration of the powers in this section or section 1.3 shall not be considered in any way to limit or control the power of the Plan Administrator to act as specifically authorized by any other section or provision of the Plan Administration Agreement or the Plan. 1.5. Limitation of Plan Administrators Authority. (a) No Trade or Business. The Plan Administrator shall not, and shall not be authorized to, engage in any trade or business with respect to the Estate Property or any proceeds therefrom except to the extent reasonably necessary to, and consistent with, the purpose of the Plan and the Plan Administration Agreement and shall take such actions consistent with the 6
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prompt orderly distribution of the Estate Property as are required by applicable law and consistent with the Plan. (b) Released Claims. The Plan Administrator shall not have any authority to pursue any Causes of Action waived, exculpated or released in accordance with the provisions of the Plan or the Confirmation Order. (c) Investment and Safekeeping of Estate Property. All moneys and other assets comprising the Estate Property shall, until distributed or paid over as herein provided, be held in trust for the benefit of the appropriate Claimholders in respect of the Plan, but need not be segregated from other Estate Property, unless and to the extent required by applicable law or by the Plan. The Plan Administrator shall be under no liability for interest or producing income on any moneys received hereunder and held for distribution or payment to the beneficiaries of the Plan, except as such interest shall actually be received by the Plan Administrator. Investments of any moneys comprising the Estate Property shall be administered in view of the manner in which individuals of ordinary prudence, discretion and judgment would act in the management of their own affairs; provided, however, that the right and power of the Plan Administrator to invest the Estate Property, the proceeds thereof, or any income earned, shall be limited to the right and power to invest such assets in demand and time deposits, such as short-term certificates of deposit, in banks or other savings institutions, or other temporary liquid investments, such as Treasury bills, except for such other investments as may be authorized by a Final Order of the Bankruptcy Court; without limiting the foregoing, the Plan Administrator shall invest Cash in compliance with section 345 of the Bankruptcy Code. 1.6. Liability of Plan Administrator. In no event shall the Plan Administrator, the Plan Administrators employees, or any of the Plan Administrators professionals or representatives be held personally liable for any claim asserted against the Debtors, the Plan Administrator, the Plan Administrators employees, or any of the Plan Administrators professionals or representatives, except to the extent occasioned by or based upon willful misconduct or gross negligence. Specifically, the Plan Administrator, the Plan Administrators employees, and any of the Plan Administrators professionals or representatives shall not be liable for any negligence or any error of judgment in either case made in good faith, or with respect to any action taken or omitted to be taken in good faith, except to the extent that the action taken or omitted to be taken by the Plan Administrator, the Plan Administrators employees, or any of the Plan Administrators professionals or representatives are determined by a Final Order to be due to their own respective gross negligence or willful misconduct. The Plan Administrator shall have no duty or obligation hereunder other than to take such specific actions as are expressly required of it from time to time under the provisions of the Plan Administration Agreement, the Plan or the Confirmation Order, and it shall incur no liability hereunder or in connection herewith for anything whatsoever other than any liability from resulting from its own gross negligence or willful misconduct. 1.7. Reliance by Plan Administrator and its Professionals. provided in Section 1.6 hereof: Except as otherwise
(a) the Plan Administrator may rely, and shall be protected in acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or 7
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other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) The Plan Administrator may consult with legal counsel, financial or accounting advisors and other professionals to be selected by it, and the Plan Administrator shall not be liable for any action taken or omitted to be taken by it in accordance with the advice thereof; and (c) Persons or entities dealing with the Plan Administrator shall look only to Estate Property to satisfy any liability incurred by the Plan Administrator to such Person or Entity in carrying out the terms of the Plan Administration Agreement, and the Plan Administrator shall have no personal obligation to satisfy any such liability, except to the extent such liability or obligation arises as a result of the gross negligence or willful misconduct of the Plan Administrator in which case the Estate Property shall not be subject to such claims or liabilities. 1.8. Compensation of the Plan Administrator. (a) The Plan Administrator shall be entitled to receive compensation in the amount of $500 per hour for work performed in accordance with this Plan Administration Agreement. The Plan Administrator also shall be entitled to reimbursement of actual and reasonable out-of-pocket expenses incurred by the Plan Administrator, including, without limitation, necessary travel, lodging, meals, postage, telephone and facsimile charges upon receipt of periodic billings. (b) On or before the fifth day of each month, the Plan Administrator shall provide a statement to the Steering Committee of the compensation and reimbursement of expenses that is sought by the Plan Administrator for payment to it and to its professionals for the immediately preceding month. The Steering Committee shall have five (5) days from the date such statement is received to review the statement and object to any payments by serving a written objection on the Plan Administrator or its professional, which objection shall set forth the precise nature of the objection and the amount at issue. If no objections are received by the Plan Administrator within such five-day period, the Plan Administrator may pay such statement on the next business day. The parties shall attempt to resolve objections, if any, to any monthly statement. If the parties are unable to reach a consensual resolution of any such objection, the Steering Committee must, within seventeen (17) days of receipt of the statement, bring such dispute before the Bankruptcy Court upon proper notice to the Plan Administrator. Any undisputed portion of the statement may be paid pending resolution of the dispute but the disputed portion of the statement shall not be paid until the dispute is resolved. 1.9. No Bond. The Plan Administrator shall not be required to post a bond or other surety or guaranty in connection with its duties as Plan Administrator. 1.10. Indemnification. The Plan Administrator shall not be personally liable for the acts or omissions of any officer, employee, or agent of the Plan Administrator unless the Plan Administrator acted with gross negligence or willful misconduct in the selection, retention, or supervision of such officer, employee, or agent. Except in those situations in which the Plan 8
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Administrator is not exonerated of personal liability in accordance with the foregoing, the Plan Administrator shall be indemnified by the Estate against and held harmless by the Estate from any losses, claims, damages, liabilities, or expenses (including, without limitation, attorney fees, disbursements, and related expenses) to which the Plan Administrator may become subject in connection with any action, suit, proceeding, or investigation brought or threatened against the Plan Administrator. If the Plan Administrator becomes involved in any action, proceeding, or investigation in connection with any matter arising out of or in connection with the Plan, this Plan Administration Agreement, or the affairs of the Plan Administrator, the Estate shall periodically advance or otherwise reimburse on demand the Plan Administrators reasonable legal and other expenses (including, without limitation, attorney fees, disbursements, and related expenses) incurred in connection therewith, but the Plan Administrator shall be required to repay promptly to the Estate the amount of any such advanced or reimbursed expenses paid to the Plan Administrator to the extent that it shall be ultimately determined by Final Order that the Plan Administrator engaged in fraud, willful misconduct, or gross negligence in connection with the affairs of the Estate with respect to which such expenses were paid. The Estate may indemnify and hold harmless the employees and agents of the Estate to the same extent as provided in this section 1.10 for the Plan Administrator. Without limiting the generality of the foregoing, the Plan Administrator shall have no liability to any holder of a Claim on account of the Plan Administrators investment or non-investment of any Estate Property or any losses with respect to any such investments of Estate Property, provided such investments are made, or the Plan Administrators decision not to invest in any Estate Property. 1.11. Confidentiality. The Plan Administrator shall, and shall cause its agents and representatives to, during the period that it serves as Plan Administrator under the Plan Administration Agreement to hold strictly confidential and not use for personal gain any material, non-public information of or pertaining to any entity or matter to which any Estate property relates or of which the Plan Administrator has become aware in its capacity as Plan Administrator. 1.12. Final Decree. It shall be the duty of the Plan Administrator to seek and obtain a final decree from the Bankruptcy Court upon full administration of the Plan. 1.13. Termination. The Plan Administrators appointment shall terminate upon the distribution of all Estate Property in accordance with the terms of the Plan and this Plan Administration Agreement, upon entry of a Final Order by the Bankruptcy Court closing all or the last of the Bankruptcy Cases then remaining open, or by termination at the mutual consent of the Plan Administrator and the Steering Committee. 1.14. Action Upon Instructions. If in performing the Plan Administrators duties under the Plan Administration Agreement, the Plan Administrator is required to decide between alternate courses of action, or the Plan Administrator is unsure of the application of any provision of the Plan Administration Agreement or the Plan, then the Plan Administrator may promptly deliver a notice to the Steering Committee requesting a recommendation as to a course of action to be taken by the Plan Administrator. If the Plan Administrator does not receive such written directions within five (5) Business Days after the Plan Administrator has delivered such notice, the Plan Administrator may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Plan Administration Agreement and the Plan as the Plan 9
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Administrator shall deem advisable. If the Plan Administrator does not receive direction from the Steering Committee within such five (5) Business Day period or the Plan Administrator believes that a Court order is necessary to determine the Plan Administrators rights or duties in any respect under this Plan Administration Agreement, then the Plan Administrator may apply to the Bankruptcy Court for such order. ARTICLE II PURPOSE, AUTHORITY, LIMITATIONS, AND DISTRIBUTIONS 2.1. Consummation of the Plan by the Plan Administrator. (a) The Plan Administrator shall be empowered to and, in its discretion (subject to the provisions hereof), may take all appropriate action with respect to the prosecution, settlement or other resolution of claims and causes of action in connection with administering the Plan. The Plan Administrator shall deal with all collections and settlements within the normal course of its duties. (b) Notwithstanding anything contained in the Plan Administration Agreement to the contrary, the Plan Administrator may, but is not required to, submit a proposed settlement of claims or causes of action to the Bankruptcy Court or such other court of competent jurisdiction for its approval. 2.2. Books and Records. The Plan Administrator shall maintain books and records relating to the payment of (i) expenses and liabilities incurred in connection with the Plan Administrators duties in administering the Plan, and (ii) Claims against the Debtors Estates, all in such detail and for such period of time as may be necessary to enable it to make full and proper accounting in respect thereof and to comply with applicable provisions of law. Except as provided herein, nothing in the Plan Administration Agreement requires the Plan Administrator to file any accounting or seek approval of any court with respect to the administration of the Plan, or as a condition for making any payment or distribution out of the Estate Property. The Steering Committee shall have the right upon thirty (30) days prior written notice delivered to the Plan Administrator to inspect such books and records, provided that, if so requested, the members of the Steering Committee shall have entered into a confidentiality agreement satisfactory in form and substance to the Plan Administrator. 2.3. Compliance with Laws. Any and all distributions of Estate Property shall be in compliance with applicable laws, including, but not limited to, applicable federal and state securities laws. ARTICLE III ADMINISTRATION OF THE ESTATE 3.1. Establishment of Available Cash. Prior to making any Distributions, the Plan Administrator shall determine the total amount of Available Cash, taking into account any Reserves created pursuant to this Article III.
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3.2. Establishment of Reserves and Related Matters. The Plan Administrator shall reserve the Administrative and Priority Claim Reserve, the Professional Claims Reserve, and the General Unsecured Claim Reserve, each in Cash, to pay such Claims in accordance with the terms of the Plan. Any such reserves shall be dissolved once all required payments therefrom have been made, and any unused balances thereafter shall be included in Cash for distribution to others in accordance with the terms of the Plan. 3.3. Withholding Requirements. The Plan Administrator shall be authorized to take any and all actions that may be necessary or appropriate to comply with all withholding and reporting requirements imposed by any federal, state, local or foreign taxing authority (and all Distributions shall be subject to any such withholding and reporting requirements), including, without limitation, liquidating a portion of any Distribution to generate sufficient funds to pay applicable withholding taxes or establishing any other mechanisms the Plan Administrator believes are reasonable and appropriate, including requiring a Claimholder to submit appropriate tax and withholding certifications. No Distributions shall be required to be made to or on behalf of such holder pursuant to the Plan unless and until such holder has made arrangements satisfactory to the Plan Administrator for the payment and satisfaction of such tax obligations or has, to the Plan Administrators satisfaction, established an exemption therefrom. ARTICLE IV SUCCESSOR PLAN ADMINISTRATOR 4.1. Removal or Resignation. Upon written application to the Bankruptcy Court on at least 20 days notice to the Plan Administrator and its counsel, the Plan Administrator may be removed by the Bankruptcy Court for cause shown including, without limitation, for (1) fraud or willful misconduct, (2) such physical or mental disability as substantially prevents the Plan Administrator from performing the duties of Plan Administrator hereunder, or (3) a breach of fiduciary duty or an unresolved conflict of interest. The Plan Administrator may resign by giving not less than twenty (20) days prior written notice thereof to the Bankruptcy Court and the Steering Committee. Such resignation shall become effective on the later to occur of (a) the date specified in such notice and (b) the selection of a successor and the acceptance by such successor of such appointment. 4.2. Appointment of Successor Plan Administrator. In the event of the death, resignation, or removal by the Bankruptcy Court in accordance with the provisions of section 4.1 hereof, of the Plan Administrator, the Steering Committee shall, by majority vote, designate a person to serve as successor Plan Administrator. 4.3. Acceptance of Appointment by Successor Plan Administrator. In the event of the death, resignation or removal of the Plan Administrator, the Steering Committee shall, by majority vote, designate a person to serve as successor Plan Administrator. The successor Plan Administrator shall file an affidavit demonstrating that such Person is disinterested as defined by section 101(14) of the Bankruptcy Code and disclosing the terms and conditions of such person or entitys compensation. Thereupon, such successor Plan Administrator shall, without any further act, become vested with all the estates, properties, rights, powers and duties of its predecessor with like effect as if originally named herein; provided, however, that a removed or resigning Plan Administrator shall, nevertheless, when requested in writing by the successor Plan 11
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Administrator, execute and deliver an instrument or instruments conveying and transferring to such successor Plan Administrator under the Plan all the estates, properties, rights, powers, and duties of such predecessor Plan Administrator. The successor Plan Administrator shall file an affidavit demonstrating that such Person is disinterested as defined by Bankruptcy Code section 101(14) and disclosing the terms and conditions of such person or entitys compensation. ARTICLE V REPORTING 5.1. Financial Reports. The Plan Administrator shall submit to the Bankruptcy Court post-confirmation quarterly reports required by the United States Trustee. The Plan Administrator shall provide any additional reports reasonably requested by the Steering Committee. 5.2. Responsible for Post-Confirmation Debtors. The Plan Administrator shall be responsible for filing any statements, returns or disclosures required to be filed by any governmental unit or under applicable law, guidelines, rules and regulations with respect to the Debtors, including, but not limited to, federal and state tax returns. 5.3. Other. The Plan Administrator shall also file (or cause to be filed) any other statements, returns or disclosures relating to the Estate Property, which are required to be filed by any governmental unit or under applicable law, guidelines, rules and regulations, including, without limitation, post-confirmation quarterly reports required by the United States Trustee, and shall be responsible for making payment of any post-confirmation fees required by the United States Trustee. ARTICLE VI MISCELLANEOUS PROVISIONS 6.1. Cooperation. The Debtors shall, to the best of their abilities, provide the Plan Administrator with the books and records as the Plan Administrator shall reasonably require for the purpose of performing its duties and exercising its powers hereunder. 6.2. Governing Law. The Plan Administration Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to rules governing the conflict of laws. In the case of a conflict between the Plan and the Plan Administration Agreement, the Plan shall control. 6.3. Severability. If any provision of the Plan Administration Agreement or the application thereof to any person or circumstance shall be finally determined by a court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of the Plan Administration Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and such provision of the Plan Administration Agreement shall be valid and enforced to the fullest extent permitted by law unless the Plan Administration Agreement, as modified, will no longer effectuate the intent of the parties hereto in all material respects. 12
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6.4. Notices. Any notice or other communication hereunder shall be in writing and shall be deemed to have been sufficiently given, for all purposes, if by electronic mail, or if deposited, postage prepaid, in a post office or letter box addressed to the person for whom such notice is intended at such address as set forth below or such other address as filed with the Bankruptcy Court: If to the Plan Administrator: Buchwald Capital Advisors, LLC 380 Lexington Avenue, 17th Floor New York, NY 10168-1799 Attention: Lee E. Buchwald Email: lbuchwald@buchwaldcapital.com with copies to:
6.5. Notices if to a Claimholder. Any notice or other communication hereunder shall be in writing and shall be deemed to have been sufficiently given, for all purposes, if deposited, postage prepaid, in a post office or letter box addressed to the Person or entity for whom such notice is intended. With respect to notices to the holders of Claims, any notice shall be deemed to have been sufficiently given, for all purposes, if deposited, postage prepaid, in a post office or letter box addressed to the Person or entity in respect of such Claim as set forth either on the Debtors Schedules of Assets and Liabilities, the proof of claim filed in respect of such Claim, or such other notice filed with the Bankruptcy Court by the holder of such Claim. 6.6. Headings. The section headings contained in the Plan Administration Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of the Plan Administration Agreement or of any term or provision hereof. 6.7. Recitals. All recitals set forth above are hereby incorporated herein by reference and are deemed a material part of the Plan Administration Agreement. 6.8. Counterparts. The Plan Administration Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. 6.9. Conflict. To the extent the Plan Administration Agreement conflicts with the Plan or Confirmation Order, the Plan or Confirmation Order, as applicable, shall control. 6.10. Effective Date. The Plan Administration Agreement and the authority of the Plan Administrator shall become effective the later to occur of (i) the Effective Date or (ii) the execution of the Plan Administration Agreement. 6.11. Consent to Jurisdiction. Each of the parties hereto (and each Claimholder by its acceptance of the benefits of the Plan Administrator created hereunder) (1) consents and submits 13
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to the jurisdiction of the Courts of the State of New York and of the Courts of the United States for the Southern District of New York for all purposes of the Plan Administration Agreement, including, without limitation, any action or proceeding instituted for the enforcement of any right, remedy, obligation, or liability arising under or by reason hereof, and (2) consents and submits to the venue of such action or proceeding in the City of New York (or such Judicial District of a Court of the United States as shall include the same). 6.12. Waiver of Jury Trial. ANY AND ALL RIGHT TO TRIAL BY JURY IS HEREBY WAIVED, AND THERE SHALL BE NO RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE PLAN ADMINISTRATION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 6.13. Amendment. Material amendments to this Plan Administration Agreement require Bankruptcy Court approval after notice and consultation with the Steering Committee. This Plan Administration Agreement may be amended by the Plan Administrator without Bankruptcy Court approval to correct typographical errors or if such amendment is not material upon authorization by the Steering Committee. IN WITNESS WHEREOF, the parties hereto have either executed and acknowledged the Plan Administration Agreement, or caused it to be executed and acknowledged on their behalf by their duly authorized officers all as of the date first above written. Remainder of Page Intentionally Left Blank Signature Page Follows
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B+H OCEAN CARRIERS LTD., BHOBO ONE LTD., BHOBO TWO LTD., BHOBO THREE LTD., RMJ OBO SHIPPING LTD., SAKONNET SHIPPING LTD., STRAITS OFFSHORE LTD., SEAPOWET SHIPPING LTD., OBO HOLDINGS LTD., SEASAK TRADING LTD., PRODUCT TRANSPORT CORP. By: Name: Title: Buchwald Capital Advisors LLC, as Plan Administrator By: Name: Lee E. Buchwald Title: President
AGREED AND ACKNOWLEDGED: OFFICIAL COMMITTEE OF UNSECURED CREDITORS By: Name: Title:
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RECOMMENDATION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO APPROVE PLAN OF REORGANIZATION December 17, 2012 To: All Holders of Claims Against B+H Ocean Carriers Ltd., et al. Entitled to Vote on the Debtors Second Amended Joint Plan of Reorganization Re: In re B+H Ocean Carriers Ltd., et al., Chapter 11 Case No. 12-12356 (SCC) (Jointly Administered)
Dear Holders of Claims Entitled to Vote on the Debtors Second Amended Joint Plan of Reorganization: This letter is being sent to you on behalf of the Official Committee of Unsecured Creditors (the Committee) of B+H Ocean Carriers Ltd., et al. (the Debtors), appointed by the Office of the United States Trustee for the Southern District of New York on June 14, 2012 to represent the interests of general unsecured creditors of the Debtors in their chapter 11 cases (the Chapter 11 Cases).1 We are writing regarding the Second Amended Joint Plan of Reorganization of the Debtors under Chapter 11 of the Bankruptcy Code (the Plan) and Disclosure Statement for the Plan (the Disclosure Statement), which you are receiving from the Debtors in the same package as this letter. The Committees purpose is to maximize recoveries for holders of general unsecured creditors in light of relevant risks, ensure fairness in the processes employed by the Debtors and other interested parties, and to facilitate the reorganization or liquidation of the Debtors under chapter 11 on terms that are fair and equitable. After a careful review of the Plan and the Disclosure Statement, the Committee believes that confirmation of the Plan is in the best interest of the Debtors general unsecured creditors and recommends that you vote to APPROVE the Plan. The Plan constitutes a joint plan of reorganization for the eleven Debtors. Although the Chapter 11 Cases are jointly administered pursuant to an order of the Bankruptcy Court, the Plan does not provide for the substantive consolidation of the Debtors estates. The Plans overall objective is to liquidate and distribute all assets of the Debtors to holders of allowed claims in satisfaction of the Debtors obligations, in accordance with the priorities established by the Bankruptcy Code, but taking into account the compromises and settlements by and among the Debtors, their non-Debtor insiders and affiliates, the Committee, Macquarie Bank Limited and Macquarie US Trading LLC (together Macquarie), and The Bank of Nova Scotia Asia Limited (Scotiabank). The Committee anticipates that those compromises and settlements will provide approximately $3.6 million in cash for distributions to holders of allowed general unsecured claims. However, approximately $3.2 million of the $3.6 million will be available for distributions only to holders of allowed general unsecured claims that either
1
The Committee is comprised of the following entities: AB International Marine Services Co.; Airserve Marine Travel Pte. Ltd.; Kristensons-Petroleum, Inc.; Norsk Tillitsmann ASA; and S.S.G. Shipping Services BV. The Committee retained the law firm of Kelley Drye & Warren LLP as its counsel.
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(a) vote to accept the Plan, or (b) abstain from voting and do not affirmatively elect to opt-out of the release by holders of claims and released parties set forth in Section 11.6(b) of the Plan. The principal issues for consideration in connection with the Plan are (a) the reasonableness of the compromises and settlements of the Debtors claims, causes of action and rights to certain assets resolved under the Plan, (b) the reasonableness of the compromises and settlements of intra-Debtor or intra-estate disputes or issues under the Plan, (c) the reasonableness of the compromises and settlements of the issues and disputes among the Debtors, their lenders, their non-Debtor insiders and affiliates, and the Committee, and (d) whether the benefits of the settlements and compromises outweigh the results that could be achieved through litigation or whether litigation could result in better recoveries. The Committee has considered the alternative of protracted litigation and/or the liquidation of the Debtors under chapter 7 of the Bankruptcy Code, and weighed the risks and costs associated therewith. As protracted litigation or the liquidation under chapter 7 would likely consume all of the assets currently available for distribution to unsecured creditors, confirmation of the Plan provides the only alternative for unsecured creditors to receive any recovery. Accordingly, given the facts and circumstances of these Chapter 11 Cases, the Committee recommends that unsecured creditors vote in favor of the Plan. Further, failure to approve the Plan would eliminate certain highly advantageous provisions in the Plan. These include subordination of Macquaries and Scotiabanks significant superpriority claim under the Bankruptcy Code and their substantial deficiency claims. Accordingly, the Committee recommends that all unsecured creditors vote in favor of the Plan by indicating your acceptance of the Plan, and where applicable, agree and consent to the releases provided under the Plan, on the ballot you will receive from the Debtors. Your vote to accept the Plan is crucial, no matter how large or small your claim may be. Before voting, the Committee strongly urges all creditors to carefully read and review in their entirety the Plan and the Disclosure Statement, including the discussion of the risk factors related to the Plan, and all other documents submitted to you. Although the Committee, by this letter, expresses its support for the Plan, this letter does not necessarily reflect the views of any of the individual Committee members, each of which reserves any and all of its rights. If you have any questions with respect to the Plan or treatment of your claim, please contact Committees counsel, Craig A. Wolfe, Esq. or Benjamin Blaustein, Esq. at (212) 808-7800 (cwolfe@kelleydrye.com; bblaustein@kelleydrye.com). Very truly yours, /s/ Craig A. Wolfe Craig A. Wolfe, Esq. Counsel for the Official Committee of Unsecured Creditors of B+H Ocean Carriers Ltd., et al.
12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Amended Joint Chapter 11 Plan - Redline Version Pg 1 of 71 Nicholas F. Kajon John D. Demmy Constantine D. Pourakis STEVENS & LEE, P.C. 485 Madison Avenue, 20th Floor New York, New York 10022 Telephone: (212) 319-8500 Facsimile: (212) 319-8505 nfk@stevenslee.com jdd@stevenslee.com cp@stevenslee.com Attorneys for the Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------In re: B+H OCEAN CARRIERS LTD., et al., Debtors. ------------------------------------------------------x : Chapter 11 : : : Case No. 12-12356 (SCC) : Jointly Administered : x
Second
Dated: November 6,December 17, 2012
FIRSTSECOND AMENDED JOINT PLAN OF REORGANIZATION OF THE DEBTORS UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
NOTHING CONTAINED IN THIS DOCUMENT SHALL CONSTITUTE AN OFFER, ACCEPTANCE OR A LEGALLY BINDING OBLIGATION OF THE DEBTORS OR ANY OTHER PARTY IN INTEREST AS THIS PLAN REMAINS SUBJECT TO APPROVAL BY THE BANKRUPTCY COURT AND OTHER CUSTOMARY CONDITIONS. THIS PLAN IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN OF REORGANIZATION PURSUANT TO SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL BE MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. YOU SHOULD NOT RELY ON THE INFORMATION CONTAINED IN OR THE TERMS OF THIS PLAN FOR ANY PURPOSE PRIOR TO THE CONFIRMATION OF THIS PLAN BY THE BANKRUPTCY COURT. THE INFORMATION CONTAINED IN THIS PLAN IS PRELIMINARY AND DEVELOPMENTS MAY OCCUR THAT REQUIRE MODIFICATIONS, ADDITIONS, OR DELETIONS TO THIS PLAN.
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Second
TABLE OF CONTENTS ARTICLE I INTRODUCTION AND GENERAL FRAMEWORK OF THE PLAN ..........................1 ARTICLE II DEFINITIONS .................................................................................................................4 ARTICLE III ADMINISTRATIVE EXPENSE AND PRIORITY TAX CLAIMS ...........................23 Section 3.1 Section 3.2 Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 Section 4.6 Section 4.7 Section 4.8 Section 4.9 Administrative Expenses. ................................................................................23 Priority Tax Claims. ....................................................................................2425 Classification. . ...............................................................................................25 BHO (B+H Ocean Carriers Ltd.) (Classes A1 through A4). ...........................26 OBOH (OBO Holdings Ltd.) (Classes B1 through B4). .............................2627 OBO1 (BHOBO One Ltd.) (Classes C1 through C4)..................................2627 OBO2 (BHOBO Two Ltd.) (Classes D1 through D4).................................2728 OBO3 (BHOBO Three Ltd.) (Classes E1 through E4)................................2728 Protrans (Product Transport Corp.) (Classes F1 through F4). .........................28 RMJ (RMJ OBO Shipping Ltd.) (Classes G1 through G4). ........................2829 Seapowet (Seapowet Shipping Ltd.) (Classes H1 through H4)...................2829
ARTICLE IV CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS ................................25
Section 4.10 Seasak (Seasak Trading Ltd.) (Classes I1 through I4).....................................29 Section 4.11 Straits (Straits Offshore Ltd.) (Classes J1 through J4). ...............................2930 Section 4.12 Sakonnet (Sakonnet Shipping Ltd.) (Classes K1 through K4). ...................2930 ARTICLE V TREATMENT OF CLAIMS AND EQUITY INTERESTS......................................3031 Section 5.1 Section 5.2 Section 5.3 Section 5.4 Section 5.5 Treatment of Other Priority Claims and Other Secured Claims Common to All Debtors...............................................................................3031 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against All Debtors Except Sakonnet. .........................3132 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against Sakonnet. .........................................................3334 Treatment of Equity Interests Against All Debtors (Classes A4 through K4)..................................................................................................3436 Nonconsensual Confirmation. .....................................................................3536 -i-
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Section 5.6 Section 5.7 Section 6.1 Section 6.2 Section 6.3 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9
Elimination of Vacant Classes. ...................................................................3536 Intercompany Claims. ..................................................................................3537 Distributions From the Third Party Release Fund. .....................................3537 Distribution Record Date. ...........................................................................3637 Manner of Payment. ....................................................................................3637 Disbursement Agent. ...................................................................................3637 Delivery of Distributions. ...........................................................................3638 Allocation of Distributions Between Principal and Interest. ......................3638 No Postpetition Interest on Claims. ............................................................3638 No Distribution in Excess of Allowed Amount of Claim. ..........................3738 Distributions with Respect to Disputed Claims. .........................................3738
ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS...................................................3537
Section 6.10 Distributions with Respect to Defendants. ..................................................3738 Section 6.11 Disputed Payments. .....................................................................................3739 Section 6.12 Setoffs. ........................................................................................................3739 Section 6.13 Unclaimed Distributions and Time Bar to Cash Payments. .......................3839 Section 6.14 Distributions Free and Clear. . .....................................................................3840 Section 6.15 De Minimis Distributions. ..........................................................................3840 Section 6.16 Transfer of Assets Under Plan. ...................................................................3840 ARTICLE VII MEANS FOR IMPLEMENTATION......................................................................3840 Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 Compromises and Settlements. ...................................................................3840 Plan Administrator. .....................................................................................3941 Steering Committee. ...................................................................................4243 Administrative and Priority Claims Reserve. .............................................4244 General Unsecured Claims Reserve. ...........................................................4344 Professional Claims Reserve........................................................................4344 Causes of Action and Accounts Receivable. ...............................................4344 Effectuating Documents and Further Transactions. ....................................4445 Authority to Act. . ........................................................................................4445 - ii -
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Section 7.10 Operations During Post-Confirmation Period. ...........................................4445 ARTICLE VIII PROCEDURES FOR DISPUTED CLAIMS ........................................................4446 Section 8.1 Section 8.2 Section 8.3 Section 9.1 Section 9.2 Section 9.3 Section 9.4 Objections to Claims. ..................................................................................4446 Estimation of Claims Post-Effective Date. ..................................................4546 Settlement of Disputed Claims. . .................................................................4547 Assumption and Rejection of Executory Contracts and Unexpired Leases...........................................................................................................4547 Objections to Rejection. ..............................................................................4647 Rejection Damage Claims. ..........................................................................4648 Modifications. .............................................................................................4648
ARTICLE IX EXECUTORY CONTRACTS AND UNEXPIRED LEASES ................................4547
ARTICLE X CONDITIONS PRECEDENT ...................................................................................4748 Section 10.1 Conditions Precedent to the Confirmation Date. .......................................4748 Section 10.2 Conditions Precedent to the Effective Date. ...............................................4749 Section 10.3 Waiver of Conditions Precedent. ................................................................4850 ARTICLE XI EFFECT OF CONFIRMATION ..............................................................................4850 Section 11.1 Vesting of Assets. .......................................................................................4850 Section 11.2 Binding Effect. ............................................................................................4850 Section 11.3 Injunction Against Interference with the Plan. ...........................................4850 Section 11.4 Term of Injunctions or Stays Arising Under or Entered During the Chapter 11 Cases. ........................................................................................4850 Section 11.5 Exculpation. . ...............................................................................................4951 Section 11.6 Releases........................................................................................................4951 Section 11.7 Injunction. . ..................................................................................................5052 Section 11.8 Exclusions and Limitations on Exculpation, Indemnification, and Releases. ......................................................................................................5152
Section 11.9 Dissolution of Creditors Committee. ........................................................5153 Section 11.10 Post-Effective Date Services By Debtors Professionals.............................5153 ARTICLE XII RETENTION OF JURISDICTION ........................................................................5253 - iii -
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Section 12.1 Retention of Jurisdiction. ............................................................................5253 ARTICLE XIII MISCELLANEOUS PROVISIONS......................................................................5456 Section 13.1 Payment of Statutory Fees. . ........................................................................5456 Section 13.2 Substantial Consummation. . .......................................................................5456 Section 13.3 Exemption from Transfer Taxes. . ...............................................................5456 Section 13.4 Determination of Tax Liabilities. ................................................................5456 Section 13.5 Withholding and Reporting Requirements. . ...............................................5556 Section 13.6 Modification and Amendment. ...................................................................5557 Section 13.7 Severability. ................................................................................................5557 Section 13.8 Notice of Entry of Confirmation Order and Relevant Dates. .....................5657 Section 13.9 Courts of Competent Jurisdiction. ..............................................................5658 Section 13.10 No Admissions. ...........................................................................................5658 Section 13.11 Currency. .....................................................................................................5658 Section 13.12 Governing Law. ..........................................................................................5658 Section 13.13 Schedules, Exhibits and Supplements. ........................................................5658 Section 13.14 Notices. .......................................................................................................5658 Section 13.15 Counterparts. ...............................................................................................5759
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Amended Joint Chapter 11 Plan - Redline Version Pg 6 of 71 LIST OF EXHIBITS EXHIBIT A TERM SHEET WITH MACQUARIE EXHIBIT B TERM SHEET WITH SCOTIABANK EXHIBIT C FORM OF PLAN ADMINISTRATOR AGREEMENT EXHIBIT D CREDITORS COMMITTEE SUPPORT LETTER
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Amended Joint Chapter 11 Plan - Redline Version Pg 7 of 71 ARTICLE I INTRODUCTION AND GENERAL FRAMEWORK OF THE PLAN
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The Debtors hereby propose the following firstsecond amended joint chapter 11 plan of reorganization pursuant to section 1121(a) of title 11 of the United States Code. Capitalized terms used in this Plan are defined in Article 1 below. The Plan is being proposed by the Debtors, and enjoys the full support of the Creditors Committee and the Debtors two secured lenders, Macquarie and Scotiabank. No solicitation materials other than the Disclosure Statement and related materials transmitted herewith and approved by the Bankruptcy Court have been authorized by the Bankruptcy Court for use in soliciting acceptances or rejections of the Plan. The Plan constitutes a joint plan of reorganization for the eleven Debtors. Although the Chapter 11 Cases are jointly administered pursuant to an order of the Bankruptcy Court, the Plan does not provide for the substantive consolidation of the Debtors Estates, i.e., the integrity of the separate Debtor estates is being observed in all respects. The Plans overall objective is to liquidate and Distribute all Assets of the Debtors to holders of Allowed Claims and Allowed Unclassified Claims in satisfaction of the Debtors obligations, with the following key features: 1. The Plan contemplates Distributions to Creditors based on the priorities established by the Bankruptcy Code, after giving effect to the settlements (i) between Scotiabank and the Creditors Committee, with respect to which the Debtors fully support, as set forth and described in the Scotiabank Plan Term Sheet, (ii) between the Debtors and Macquarie as set forth and described in the Macquarie Plan Term Sheet, with respect to which the Creditors Committee fully supports, and (iii) betweenamong the Debtors, Macquarie, Scotiabank and the Hudner Released Parties as set forth and described in this Plan, with respect to which the Creditors Committee fully supports. 2. The holders of Administrative Expense Claims, Priority Tax Claims and Other Priority Claims against each of the Debtors other than Debtor Sakonnet Shipping Ltd. shall receive Distributions in full in Cash on the Effective Date of the Plan from the Cash held by the Estate (which Cash is subject to liens in favor of Macquarie, and, thus is Macquaries Cash Collateral, but which Macquarie is making available to pay such Administrative Expense, Priority Tax and Other Priority Claims, pursuant to the Macquarie Plan Term Sheet and the Plan). 3. The Macquarie Secured Claim shall receive the treatment set forth in the Macquarie Plan Term Sheet, which consists, generally, of: (i) after Distributions in full have been made to the holders of Administrative Expense Claims, Priority Tax Claims and Other Priority Claims of each of the Debtors other than Debtor Sakonnet Shipping Ltd. from Macquaries Cash Collateral, and after the funding of the Administrative and Priority Claims Reserve Amount by the Plan Administrator, the remainder of Macquaries Cash Collateral shall be distributed to Macquarie; and (ii) subject to the Macquarie Settlement Contribution, Macquaries receipt of the proceeds of the dispositions of the vessels Searose G, RIP Hudner and Roger M. Jones, including each such vessels Related Equipment (as defined below). The Macquarie Deficiency Claim shall receive treatment in accordance with the 1
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Macquarie Plan Term Sheet which, generally, provides for subordination of the Macquarie Deficiency Claim to the Claims of General Unsecured Creditors until such time that $4 million becomes distributable to General Unsecured Creditors. 4. The holders of Administrative Expense Claims (including Claims under section 503(b)(9) of the Bankruptcy Code), Priority Tax Claims and Other Priority Claims against Sakonnet shall receive Distributions in full in Cash on the Effective Date of the Plan from Cash to be made available to the Estate by Scotiabank in accordance with the Scotiabank Plan Term Sheet. Pursuant to the Scotiabank Plan Term Sheet, Scotiabank will pay 503(b)(9) Claims against Debtor Sakonnet Shipping Ltd. up to $10,000.00, crew wage claims including contract termination wages, and will provide an additional $50,000.00 in Cash to Sakonnet to fund Administrative Expense Claims, Priority Tax Claims and Other Priority Claims, which Cash is subject to refund to Scotiabank as set forth in the Scotiabank Plan Term Sheet. Scotiabanks Secured Claim shall receive the treatment set forth in the Scotiabank Plan Term Sheet which consists, generally, of Scotiabanks receipt of all the proceeds of the disposition of the vessel Sakonnet, including such vessels Related Equipment. Scotiabanks Deficiency Claim shall receive treatment in accordance with the Scotiabank Plan Term Sheet which, generally, provides for subordination of the Scotiabank Deficiency Claim against Debtor Sakonnet Shipping Ltd. to the Claims of General Unsecured Creditors until such time that $300,000 becomes distributable to General Unsecured Creditors of Debtor Sakonnet Shipping Ltd. 5. Each holder of an Allowed General Unsecured Claim will receive, from the Debtor against which it holds such Allowed General Unsecured Claim, (i) Distribution of Specified Settlement Assets, if any, and (ii) Distribution of General Settlement Assets pursuant to a hybrid (Pro Rata/equal division) formula as follows: (a) 50% to be divided among all Debtors Pro Rata based on the amount of Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) against each Debtor; and (b) 50% to be divided equally between each Debtor, with the exception of solvent Debtors and Debtors without Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) (such excluded Debtors are expected to be OBOH, Seapowet, Seasak and Straits), in each case with any excess General Settlement Assets at any particular Debtor that remains after paying all of its Allowed Claims in full (other than any Allowed Claims held by Macquarie or Scotiabank) being distributed to such other participating Debtors equally. Notwithstanding the foregoing, all Specified Settlement Assets and General Settlement Assets to the extent that they are included in the Third Party Release Fund will not be available for Distribution to those Creditors who vote to reject the Plan or who opt out of the Third Party Release Fund. Only holders of Allowed General Unsecured Claims that either (i) do not vote to acceptreject this Plan, or (ii) abstain from voting and do not affirmatively elect to opt-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, shall share in the Third Party Release Fund. To the extent that the holder of an Allowed General Unsecured Claim either (i) votes to reject this Plan, or (ii) abstains from voting and affirmatively opts-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, then such holder shall not receive any Distribution from the Third Party Release Fund. The Debtors believe that the Third Party Release Fund will be approximately $2.4 million, and will to $2.6 million, which is estimated to constitute approximately 70between 72% and 76% of the value available for Distribution to holders of Allowed General Unsecured Claims who do not vote to reject the Plan or who do not affirmatively opt-out of the Third 2
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Party Release Fund, assuming that no creditors vote to reject the Plan or opt-out of the Third Party Release Fund. Creditors who vote to reject the Plan or who affirmatively elect to opt-out of the Third Party Release will not participate in the Third Party Release Fund. At the Confirmation Hearing, the Debtors will demonstrate that the third party releases contemplated under the Plan are important and necessary to the success of the Plan. 6. The Debtors shall remain in existence after the Effective Date, except that the Debtors board of directors and management shall no longer control the Debtors. Instead, a Plan Administrator shall be appointed on the Effective Date of the Plan to wind up the Debtors affairs, prosecute Causes of Action, and resolve all outstanding Claims not previously Allowed or Disallowed prior to the Effective Date. The Plan Administrator shall be vested with the rights and obligations of a chapter 11 trustee. The Plan Administrator shall be relieved of its duties once all Final Distributions have been made, all Debtors have been dissolved under applicable law, and the Bankruptcy Court has entered a final decree closing all of the Chapter 11 Cases. Michael S. Hudner will remain available for consultation with the Plan Administrator, pursuant to a consulting agreement to be approved by the Bankruptcy Court in the Confirmation Order, but Mr. Hudner will not be part of the Debtors management or exercise any control over the Debtors following the Effective Date. 7. Vote tabulation in connection with Plan confirmation shall be completed on a Debtor-by-Debtor basis. If the Plan is not confirmed as to a particular Debtor, such Debtors Chapter 11 Case shall be converted to a case under chapter 7 of the Bankruptcy Code with Allowed Claims against such Debtor likely receiving reduced recoveries as a result of the chapter 7 administrative costs (including chapter 7 trustee feess commissions and the fees of itsa chapter 7 trustees professionals) and the unavailability to holders of General Unsecured Claims of the value represented by the Scotiabank-Sakonnet EBC Arbitration Claim, contributed by Scotiabank, and the Third Party Release Fund, which value is being contributed by Macquarie and the Hudner Released Parties, but only in connection with the terms and provisions of this Plan, and some or all of which would not be available in a chapter 7 case. 8. THE CREDITORS COMMITTEE BELIEVES THAT THE PLAN PROVIDES TREATMENT OF GENERAL UNSECURED CLAIMS THAT IS FAIR AND EQUITABLE. THE CREDITORS COMMITTEE, REPRESENTING THE INTERESTS OF ALL UNSECURED CREDITORS OF THE DEBTORS, SUPPORTS CONFIRMATION OF THE PLAN AND, THEREFORE, RECOMMENDS THAT ALL CREDITORS REVIEW THE PLAN AND DISCLOSURE STATEMENT ENCLOSED HEREWITH AND VOTE TO ACCEPT THE PLAN. A LETTER FROM THE CREDITORS COMMITTEE SETTING FORTH ITS SUPPORT OF, AND RECOMMENDATION TO ACCEPT, THE PLAN IS ATTACHED HERETO AS EXHIBIT D. 9. The Debtors believe that the Plan is in the best interest of holders of Claims and recommend that all such holders whose votes are being solicited vote to accept the Plan. Creditors will receive far more if the Plan is confirmed than they would receive in a liquidation under chapter 7. Moreover, Creditors who do not opt-out of the Third Party Release Fund will receive far more than Creditors who do opt-out.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 10 of 71 ARTICLE II DEFINITIONS Definitions. As used in the Plan, the following terms shall have the meanings set forth below: Section 2.1 ADM Arbitration means that certain arbitration between Algonquin Shipping Ltd., a wholly-owned indirect non-Debtor subsidiary of BHO, and Archer Daniels Midland. Section 2.2 ADM Arbitration Allocation means, pursuant to the Macquarie Plan Term Sheet, the proceeds from the ADM Arbitration specifically allocated to the Estates. Section 2.3 Administrative and Priority Claims Reserve means the account to be established if necessary by the Plan Administrator and funded with the Administrative and Priority Claims Reserve Amount pursuant to Section 7.4 of the Plan. Section 2.4 Administrative and Priority Claims Reserve Amount means an amount equal to (a) the aggregate amount of all Administrative Expense Claims that are Allowed on the Effective Date (excluding Professional Claims), (b) the aggregate amount of all Priority Tax Claims that are Allowed on the Effective Date, (c) the aggregate amount of all Other Priority Claims that are Allowed on the Effective Date, and (d) the aggregate amount of all Disputed Administrative Expense Claims (excluding Professional Claims), Disputed Priority Tax Claims, and Disputed Other Priority Claims. For the avoidance of doubt, the Administrative and Priority Claims Reserve Amount shall not include Distributions in an amount equal to the Macquarie Administrative Claim or Scotiabank Administrative Claim. Section 2.5 Administrative Expense Claim means any right to payment constituting a cost or expense of administration of any of the Chapter 11 Cases Allowed under and in accordance with, as applicable, sections 330, 364, 365, 503(b), 507(a)(2), and 507(b) of the Bankruptcy Code, including, without limitation, any actual and necessary costs and expenses of preserving the Debtors Estates and Professional Claims (to the extent unpaid). For the avoidance of doubt, an Administrative Expense Claim shall not include the Macquarie Administrative Claim or Scotiabank Administrative Claim. Section 2.6 Administrative Expense Claim Bar Date means the deadline for the filing of proofs of Administrative Expense Claims in the Chapter 11 Cases, which shall be the date that is the first Business Day thirty (30) days after the Effective Date or such other date as may be fixed by the Bankruptcy Court. Section 2.7 Allowed means, (i) with reference to any Claim, (a) any Claim against a Debtor which has been listed by a Debtor in its Schedules, as such Schedules may be amended by a Debtor from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent and for which no contrary proof of claim has been filed, (b) any Claim 4
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 11 of 71 allowed hereunder, (c) any Claim which is not Disputed, (d) any Claim that is compromised, settled or otherwise resolved pursuant to a Final Order of the Bankruptcy Court or under the Plan, or (e) any Claim which, if Disputed, has been Allowed by Final Order; provided, however, that Claims allowed solely for the purpose of voting to accept or reject the Plan pursuant to an order of the Bankruptcy Court shall not be considered Allowed Claims hereunder, and (ii) with reference to any Equity Interest, (a) any Equity Interest as of the Confirmation Date and (b) either not timely objected to or Allowed by Final Order. Unless otherwise specified herein or by order of the Bankruptcy Court, Allowed Administrative Expense Claim or Allowed Claim shall not, for any purpose under the Plan, include interest, punitive damages or any fine or penalty on such Administrative Expense Claim or Allowed Claim from and after the Petition Date. For purposes of determining the amount of an Allowed Claim, there shall be deducted therefrom an amount equal to the amount of any claim which a Debtor may hold or assert against the holder thereof, to the extent such claim may be set off pursuant to sections 502(d) or 553 of the Bankruptcy Code. Section 2.8 Assets means all tangible and intangible assets of every kind and nature of the Debtors and the Estates, including, without limitation, Causes of Action and all proceeds thereof, existing as of the Effective Date. Section 2.9 Ballot means the form or forms distributed to holders of impaired Claims and Equity Interests on which is to be indicated such holders acceptance or rejection of the Plan. Section 2.10 Bankruptcy Code means title 11 of the United States Code, as amended from time to time, as applicable to the Chapter 11 Cases. Section 2.11 Bankruptcy Court means the United States Bankruptcy Court for the Southern District of New York having jurisdiction over the Chapter 11 Cases, and to the extent of any reference made under section 157 of title 28 of the United States Code, the unit of such District Court having jurisdiction over the Chapter 11 Cases under section 151 of title 28 of the United States Code. Section 2.12 Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, as amended from time to time, applicable to the Chapter 11 Cases, and any local rules of the Bankruptcy Court. Section 2.13 BHM means B+H Management Ltd., a non-Debtor affiliate of the Debtors.
Section 2.14 BHM Management Agreement means that certain Management Services Agreement dated June 27, 1988 and amended on October 10, 1995 and June 1, 2009, and all agreements relating thereto including without limitation any assignment agreements thereunder or any agency agreements relating thereto. Section 2.15 BHO means Debtor B+H Ocean Carriers Ltd.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 12 of 71 Section 2.16 Bonnie Smithwick Vessel means the ore-bulk-carrier Bonnie Smithwick, formerly operated by OBO1 and sold in April 2012. Section 2.17 Brokerage and Incentive Agreement means the agreement among the Debtors, Macquarie and BHM pursuant to which the Debtors will pay, from Macquarie Cash Collateral, a brokerage and incentive fee to BHM upon disposition of the Macquarie Collateral Vessels, which agreement was approved by order dated November 13, 2012 [Docket No. 267]. Section 2.18 Business Day means any day other than a Saturday, a Sunday, a legal holiday as such term is defined in Bankruptcy Rule 9006(a), or any other day on which banking institutions in New York, New York; London, United Kingdom; Paris, France; or Hamburg, Germany are required or authorized to close by law or executive order. Section 2.19 Cash means legal tender of the United States of America and of such other jurisdictions in whose currency the Debtors hold Assets, as applicable. Section 2.20 Cash Reconciliation means the reconciliation of remaining Cash, after taking into account the extent to which any cash that was used by the Debtors prior to or after the Confirmation Date was traceable to the proceeds of any particular asset, and specifying which Cash constitutes Macquarie Collateral and which Cash should either be Distributed to other Classes or be used to fund various reserves to be established under the Plan. Section 2.21 Bankruptcy Code. Section 2.20 Cash Collateral has the meaning set forth in section 363(a) of the
Section 2.22 Section 2.21 Causes of Action means any and all rights, actions, proceedings, causes of action, suits, demands, rights to legal remedies, rights to equitable remedies, rights to payment, and claims, whether known, unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent, noncontingent, matured, unmatured, disputed, undisputed, secured, or unsecured, and whether asserted or assertable directly or derivatively in law, equity, or otherwise, of the Debtors or the Estates, existing as of the Effective Date, unless otherwise waived or released pursuant to the Plan, the Confirmation Order, a Final Order or by the Plan Administrator, including, without limitation, any recharacterization, subordination, avoidance or other claim arising under or pursuant to section 105 or chapter 5 of the Bankruptcy Code or under any other similar provisions of applicable state or federal law. For the avoidance of doubt, the term Causes of Action does not include the Scotiabank-Sakonnet EBC Arbitration Claim or the ADM Arbitration; and any and all Causes of Action against Macquarie and Scotiabank are forever waived and released pursuant to the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, and the Plan. Section 2.23 Section 2.22 Chapter 11 Cases means the cases commenced by the Debtors pursuant to chapter 11 of the Bankruptcy Code which are jointly administered under the caption In re B+H Ocean Carriers Ltd., et al., Case No. 12-12356 (SCC). Section 2.24 Bankruptcy Code. Section 2.23 Claim has the meaning set forth in section 101(5) of the 6
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 13 of 71 Section 2.25 Section 2.24 Claims Bar Date Order means the Order Establishing Deadlines and Procedures for Filing Proofs of Claim and Approving the Form and Manner of Notice Thereof, entered by the Bankruptcy Court on September 5, 2012 [Docket No. 184]. Section 2.26 Section 2.25 Claims Objection Deadline means the date that is the first Business Day that is one hundred eighty (180) days after the Effective Date, subject to extension from time to time by order of the Bankruptcy Court. Section 2.27 Section 2.26 Class means any group of substantially similar Claims or Equity Interests, classified in Article III of the Plan pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code. Section 2.28 Section 2.27 Collateral means any property or interest in property of the Estate of any Debtor subject to a lien, charge or other encumbrance to secure the payment or performance of a Claim, which lien, charge or other encumbrance is not subject to avoidance or otherwise invalid under the Bankruptcy Code or applicable nonbankruptcy law. Section 2.29 Section 2.28 Confirmation Date means the date on which the Confirmation Order is entered on the docket maintained by the clerk of the Bankruptcy Court. Section 2.30 Section 2.29 Confirmation Hearing means the hearing to be held by the Bankruptcy Court pursuant to section 1128 of the Bankruptcy Code to consider confirmation of the Plan, as such hearing may be adjourned or continued from time to time. Section 2.31 Section 2.30 Confirmation Objection Deadline means the deadline to be established by the Bankruptcy Court pursuant to the Confirmation Scheduling Order for the filing and service by any and all parties in interest of objections to confirmation of the Plan. Section 2.32 Section 2.31 Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code, which order shall be in form and substance satisfactory to the Debtors, the Creditors Committee, and the Lenders. Section 2.33 Section 2.32 Confirmation Scheduling Order means the order to be entered by the Bankruptcy Court (a) scheduling the Confirmation Hearing, (b) establishing the deadline to accept or reject the Plan, and (c) establishing the Confirmation Objection Deadline. Section 2.34 Section 2.33 Creditor means the holder of a Claim against a Debtor.
Section 2.35 Section 2.34 Creditors Committee means the statutory committee of unsecured creditors appointed in the Chapter 11 Cases by the United States Trustee on June 14, 2012, as such committee may be reconstituted from time to time. Section 2.36 Critical Vendors has the meaning set forth in that certain Order Granting Debtors Motion (I) Authorizing the Debtors to Pay or Honor Prepetition Obligations to Foreign Vendors, Service Providers and Governments and Certain Critical Vendors, and (II) Authorizing 7
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 14 of 71 Financial Institutions to Honor All Related Checks and Electronic Payment Requests, dated August 1, 2012 [Docket No. 116]. Section 2.37 Section 2.35 Debtors means, collectively, BHO, OBO1, OBO2, OBO3, RMJ, Sakonnet, Straits, Seapowet, OBOH, Seasak, and Protrans, as debtors and debtors in possession in their Chapter 11 Cases pursuant to sections 101(13), 1107(a) and 1108 of the Bankruptcy Code. Section 2.38 Section 2.36 Debtor means one of the Debtors in its individual capacity as a debtor and debtor in possession in its Chapter 11 Case pursuant to sections 101(13), 1107(a) and 1108 of the Bankruptcy Code. Section 2.39 Section 2.37 Deficiency Claim means that portion of a Claim, secured by a lien on property of the Estate, which exceeds the value of such property, determined in accordance with section 506(a) of the Bankruptcy Code. Section 2.40 Section 2.38 Disallowed means, with respect to a Claim, any Claim that has been disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court. Section 2.41 Section 2.39 Disbursement Agent means any entity, including the Debtors and the Plan Administrator, designated by the Plan or by the Plan Administrator, to make a transfer or Distribution required under the Plan. Section 2.42 Section 2.40 Disclosure Statement means the written disclosure statement, dated October 2, 2012, relating to the Plan, including, without limitation, all exhibits and schedules thereto, as the same may be amended, supplemented, or otherwise modified from time to time, as approved by the Bankruptcy Court pursuant to sections 1125 and 1126(b) of the Bankruptcy Code. Section 2.43 Section 2.41 Disclosure Statement Approval Order means the order entered by the Bankruptcy Court on NovemberDecember __, 2012, approving the Disclosure Statement pursuant to sections 1125 and 1126(b) of the Bankruptcy Code. Section 2.44 Disposition Procedures Order means the Order dated August 17, 2012 [Docket No. 157] authorizing and approving procedures by which the Debtors may use, lease, sell or otherwise dispose of the Sakonnet Vessel, the Searose G Vessel, the Rip Hudner Vessel and the Roger M. Jones Vessel and the vessels respective engines, boilers, machinery, boats, equipment, tackle, appurtenances, bunkers, parts, stores, consumables, spare gear and belongings, in separate transactions, including but not limited to the charter, lease, rental, use, sale, or other disposition, outside of the Debtors ordinary course of business. Section 2.45 Section 2.42 Disputed means, with respect to any Claim or Equity Interest, any Claim or Equity Interest that is not Allowed or Disallowed, or any Claim with respect to which an objection or request for estimation has been filed on or before the deadline established in Section 8.1 of the Plan and such objection or request for estimation has not been withdrawn with prejudice or determined by a Final Order. 8
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 15 of 71 Section 2.46 Section 2.43 Distribute Distributed or Distributing or Distribution(s) means any transfer under this Plan of Cash or other property or instruments to the Holder of a Claim. Section 2.47 Distribution Date. Section 2.44 Distribution Date means either the Effective Date or a Periodic
Section 2.48 Section 2.45 Distribution Record Date means the record date for purposes of making Distributions under the Plan on account of Allowed Claims, which date shall be the Confirmation Date or such other date designated in the Confirmation Order. Section 2.49 Section 2.46 Effective Date means the first Business Day on which all conditions to the effectiveness of the Plan specified in Section 10.2 of the Plan have been satisfied or as soon as practicable thereafter. Section 2.50 Section 2.47 Effective Date Cash Requirement means Cash in an amount equal to the sum of (a) the Administrative and Priority Claims Reserve Amount, plus (b) the Plan Administrator Expenses Reserve Amount, plus (c) the Professional Claims Reserve Amount. Section 2.51 Section 2.48 Equity Interest means the legal, equitable, contractual, or other rights of a holder of an ownership interest in any of the Debtors, including, without limitation, any interest evidenced by common or preferred stock, membership interests, options, or other rights to purchase or otherwise acquire any ownership interest in any of the Debtors. Section 2.52 Section 2.49 Estate means, with respect to each Debtor, the estate created in its respective Chapter 11 Case pursuant to section 541 of the Bankruptcy Code. Section 2.53 Section 2.50 Excess Administrative and Priority Claims Reserve means, as determined by Section 7.37.4 of the Plan, Distributions in accordance with the Plan in an amount equal to the balance, if any, of the Administrative and Priority Claims Reserve after all Administrative Expense Claims, Priority Tax Claims, and Other Priority Claims have either been Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court. Section 2.54 Section 2.51 Excess Professional Claims Reserve means Distributions in accordance with the Plan in an amount equal to the balance, if any, of the Professional Claims Reserve after all Professional Claims have either been Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court. Section 2.55 Section 2.52 Final Order means an order or judgment of a court of competent jurisdiction that has been entered on the docket maintained by the clerk of such court which has not been reversed, vacated, or stayed and as to which (a) the time to appeal, petition for certiorari, or move for a stay, new trial, reargument, or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for a stay, new trial, reargument, or rehearing shall then be pending or (b) if an appeal, writ of certiorari, stay, new trial, reargument, or rehearing thereof has been sought, (i) such order or judgment shall have been affirmed by the highest court to which such order was 9
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 16 of 71 appealed, certiorari shall have been denied, or a stay, new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order and (ii) the time to take any further appeal, petition for certiorari, or move for a stay, new trial, reargument, or rehearing shall have expired; provided, however, that the possibility that a motion pursuant to section 502(j) or 1144 of the Bankruptcy Code or under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such order shall not cause such order to not be a Final Order. Section 2.56 Section 2.53 General Claims Bar Date means October 15, 2012, at 5:00 p.m. prevailing Eastern Time, as set forth in the Claims Bar Date Order. Section 2.57 Section 2.54 General Settlement Assets means those Assets where legal title or entitlement to such Assets as between the Debtors is unresolved as of the Effective Date of the Plan, and shall include, without limitation, (i) the TTMI Settlement Proceeds, (ii) the Third Party Release Fund (without the Searose Receivable Proceeds), and (iii) any Causes of Action where legal title or entitlement to such Causes of Action are unresolved. General Settlement Assets will be allocated to each Debtor pursuant to the General Settlement Asset Distribution Formula. Section 2.58 Section 2.55 General Settlement Asset Distribution Formula means the Distribution of General Settlement Assets pursuant to a hybrid (Pro Rata/equal division) formula as follows: (a) 50% to be divided between all Debtors Pro Rata based on the amount of Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) against a Debtor; and (b) 50% to be divided equally between each Debtor, with the exception of solvent Debtors or Debtors without Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank), in each case with any excess General Settlement Assets at any particular Debtor that remains after paying all of its Allowed Claims (other than any Allowed Claims held by Macquarie or Scotiabank) in full being distributed to such other participating Debtors equally. Section 2.59 Section 2.56 General Unsecured Claim means any Claim against any of the Debtors that is not (a) an Administrative Expense Claim, a Macquarie Administrative Claim, a Scotiabank Administrative Claim, a Priority Tax Claim, an Other Priority Claim, a Macquarie Secured Claim, a Macquarie Deficiency Claim, a Scotiabank Secured Claim, a Scotiabank Deficiency Claim, or an Other Secured Claim, or (b) is otherwise determined by the Bankruptcy Court to be a General Unsecured Claim. For the avoidance of doubt, any Rejection Damage Claim is a General Unsecured Claim. Section 2.60 Section 2.57 General Unsecured Claims Reserve means the account to be established by the Plan Administrator and funded with the General Unsecured Claims Reserve Amount. Section 2.61 Section 2.58 General Unsecured Claims Reserve Amount means an amount estimated by the Plan Administrator to be sufficient to pay the Distributions to all Disputed General Unsecured Claims at the time such Distributions are made in accordance with the provisions of the Plan, if such Disputed Claims become Allowed Claims. The Debtors and the Creditors Committee, prior to the Effective Date, and the Plan Administrator, after the Effective Date, shall have the right to 10
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 17 of 71 seek estimation of Disputed General Unsecured Claims for the purpose of determining the amount of Distributions in accordance with the Plan that shall be reserved in connection with making Distributions. Section 2.62 Section 2.59 Hudner Released Parties means B+H Management Ltd., Navinvest Marine Services (USA) Inc., Product Transport (S) Pte Ltd, B+H Equimar (Singapore) Pte Ltd., Centennial Maritime Services Corp., Centennial Transmarine Inc., Northampton Holdings Ltd., Northampton Assurance Ltd., Providence Tankers Ltd., Harbor Holdings Corp., Protrans Mgmt. Ltd., Product Transport (US) Inc., Product Transport USA, Seabulk Management AS, Seabulk Trading Ltd., Equimar Shipserv Ltd., B+H Norway, Consolidated Services Ltd., Fundamental Securities International Ltd., Nordan OBO II, Sagamore Shipping Corp., Boss Tankers Ltd., Agawam Shipping Corp. mi, Anawan Shipping Corp., Aquideck Shipping Corp., Isabelle Shipholdings Corp. (MT Pequod), Drew Corp. Services Pte Ltd., B+H Potier Partners, GHP Corp., JV Equities Inc., Cliaship Holdings Corp., Algonquin Shipping Corp., including any and all officers, directors and shareholders thereof and any and all officers and directors of any of the Debtors including without limitation Michael S. Hudner, E. Hope (Freeman) Hudner, Bay A. Hudner, Charles L. Brock, Michael Lewis, Trevor J. Williams, Per Ditlev-Simonsen, Sverre Ditlev-Simonsen, R. Anthony Dalzell, Harald Svensen, Patrick F. Toohey, Thomas Scott, Thomas Evans, John Graham, Marcin Wolasiewicz, Deborah Davis, Katie Bogue, Mary Guerenabarrena, Alexandra Plock, John M. LeFrere, Gerard H. Potier, Arthur E.M. Jones, Ronald Souza, Dolores A. Gallant, Karen M. Ptak, Steffen Tunge, Anthony J. Hardy, Shelley Durrant, Wolf-Harmut L. Voss, Jonathan C. Arruda, Kim Hong Tan, Trudy Coleman, Robert Nye, Praveen Bajaj, Paiman Said, Syed Hasan, Shahrukh Ismail, Belle Han, Irene Teo, Steven Teo, Ng Loke Ann, Karen LohRosalyn Chua, Nico Furst, Olaf Skogstad, Krasimir N. Angelov, Lian Kim Seng and Nita Sim Geok Hoon. Section 2.63 Section 2.60 Hudner Released Parties Contribution means $1,360,000.00 in Cash, which is comprised of (i) the Searose Receivable Proceeds, and (ii) $650,000 in additional Cash. Section 2.64 Bankruptcy Code. Section 2.61 Impaired has the meaning set forth in section 1124 of the
Section 2.65 Section 2.62 Insider means an insider -- as the term insider is defined in section 101(31) of the Bankruptcy Code -- of a Debtor. Section 2.66 another Debtor. Section 2.67 Section 2.68 Macquarie US. Section 2.63 Intercompany Claim means a Claim held by one Debtor against Section 2.64 Lenders means, collectively, Macquarie and Scotiabank. Section 2.65 Macquarie means, collectively, (i) Macquarie Bank and (ii)
Section 2.69 Section 2.66 Macquarie-BHO Junior Loan Guaranty means the BHO written guaranty of the Macquarie Junior Loan. 11
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 18 of 71 Section 2.70 Section 2.67 Macquarie-BHO Senior Loan Guaranty means the BHO written guaranty of the Macquarie Senior Credit Facility. Section 2.71 Section 2.68 Macquarie Administrative Claim means, collectively, the (i) Macquarie Senior Administrative Claim and (ii) Macquarie Junior Administrative Claim, in each case against all Debtors except Sakonnet; provided, however, the Allowed portion of any Macquarie Administrative Claim shall not receive any Distributions under the Plan unless and until the Macquarie Claim Settlement Threshold is satisfied pursuant to the Macquarie Plan Term Sheet. Section 2.72 Section 2.69 Macquarie Bank means Macquarie Bank Limited.
Section 2.73 Section 2.70 Macquarie Cash Collateral means the Cash Collateral securing the Debtors obligations to Macquarie under the Macquarie Senior Credit Facility and Macquarie Junior Loan in accordance with the Macquarie Cash Collateral Order. Section 2.74 Section 2.71 Macquarie Cash Collateral Order means that certain Interim Order Pursuant to 11 U.S.C. 105(a), 361 and 363 (A) Authorizing Use of Cash Collateral of Nordea Lender Group, and (B) Granting Adequate Protection dated June 28, 2012 (Docket No. 64), as amended and modified by subsequent orders and stipulations dated June 28, 2012 and July 17, 2012 (Docket Nos. 65 and 84), and amended and modified again on July 26, 2012 and August 8, 2012 with Macquarie as the successor-in-interest to the Nordea Lender Group (Docket Nos. 102 and 133), and any and all subsequent amendments. Section 2.75 Section 2.72 Macquarie Claim Settlement Threshold means, pursuant to the Macquarie Plan Term Sheet, that any (i) Macquarie Administrative Claim and (ii) Macquarie Deficiency Claim shall be subordinated to holders of Allowed General Unsecured Claims against all Debtors except Sakonnet in Class A3-A through J3-A unless and until an aggregate of $4,000,000 is or becomes available for Distribution to such holders of Allowed General Unsecured Claims. Section 2.76 Section 2.73 Macquarie Collateral means, collectively, pursuant to the Macquarie Plan Term Sheet and subject to any senior liens and security interests, the aggregate amount of (i) the Macquarie Senior Loan Collateral and Macquarie Junior Loan Collateral, plus (ii) the Macquarie Cash Collateral to be turned over to Macquarie pursuant to the Macquarie Cash Collateral Order, less (iii) the amount of the Macquarie Settlement Contribution. Section 2.77 Section 2.74 Macquarie Collateral Vessels means, collectively, the RIP Hudner Vessel, the Searose G Vessel and the Roger M. Jones Vessel. Section 2.78 Section 2.75 Macquarie Deficiency Claim means, collectively, the (i) Macquarie Senior Loan Deficiency Claim and (ii) Macquarie Junior Loan Deficiency Claim, as Allowed under Classes A3-B through E3-B, G3-B, H3-B and I3-B of the Plan; provided, however, an Allowed Macquarie Deficiency Claim shall not receive any Distribution under the Plan unless and until the Macquarie Claim Settlement Threshold is satisfied pursuant to the Macquarie Plan Term Sheet. 12
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 19 of 71 Section 2.79 Section 2.76 Macquarie Junior Administrative Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion any Administrative Claim(s) arising under section 507(b) of the Bankruptcy Code held by Macquarie against all Debtors except Sakonnet in connection with the HBOS Junior Loan and Macquarie Cash Collateral Order. Section 2.80 Section 2.77 Macquarie Junior Loan means that certain $3,975,230 credit facility, dated as of February 3, 2010, by and between OBOH, OBO1, OBO2, OBO3, RMJ and certain non-Debtors as borrowers, and Macquarie as the lender and the successor-in-interest to the Bank of Scotland Plc, as amended, supplemented or otherwise modified as of the Petition Date, and including all documents executed and delivered in connection therewith including, without limitation, the Macquarie-BHO Junior Loan Guaranty. As of the Petition Date, the principal amount outstanding under the Macquarie Junior Loan was approximately $3,975,230. Section 2.81 Section 2.78 Macquarie Junior Loan Collateral means the following Collateral alleged by Macquarie as successor in interest to Bank of Scotland Plc to secure the Macquarie Junior Loan, subject to any senior liens and security interests: (i) a second mortgage on the Macquarie Collateral Vessels, (ii) certain security interests in the share of stock of various entities, (iii) a security interest in certain bank accounts, and (iv) a security interest in the cash generated by the Macquarie Collateral Vessels. Section 2.82 Section 2.79 Macquarie Junior Loan Deficiency Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion of any Deficiency Claim(s) held by Macquarie against all Debtors except Sakonnet in connection with the Macquarie Junior Loan and Macquarie Junior Secured Claim. Section 2.83 Section 2.80 Macquarie Junior Secured Claim means the Secured Claim of Macquarie against all Debtors except Sakonnet pursuant to the Macquarie Junior Loan and the Macquarie Cash Collateral Order. Section 2.84 Section 2.81 Macquarie OBO2 Vessel Settlement Allocation means, pursuant to the Macquarie Plan Term Sheet, Specified Settlement Assets allocated to OBO2 as part of the Macquarie Settlement Contribution. Section 2.85 Section 2.82 Macquarie OBO3 Vessel Settlement Allocation means, pursuant to the Macquarie Plan Term Sheet, Specified Settlement Assets allocated to OBO3 as part of the Macquarie Settlement Contribution. Section 2.86 Section 2.83 Macquarie Plan Term Sheet means that the term sheet among the Debtors and Macquarie, a true and correct copy of which is attached to this Plan as Exhibit A, pursuant to which Macquarie has agreed to contribute certain funds to enable enhanced Distributions to holders of General Unsecured Claims who do not opt out of the releases to be provided under Section 11.6 of the Plan or who do vote to reject the Plan. Upon entry of the Disclosure Statement Approval Order, the Macquarie Plan Term Sheet shall be binding on all parties.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 20 of 71 Section 2.87 Section 2.84 Macquarie RMJ Vessel Settlement Allocation means, pursuant to the Macquarie Plan Term Sheet, Specified Settlement Assets allocated to RMJ as part of the Macquarie Settlement Contribution. Section 2.88 Section 2.85 Macquarie Secured Claim means, collectively, the (i) Macquarie Senior Secured Claim, (ii) Macquarie Swap Claim and (iii) Macquarie Junior Secured Claim, plus post-petition interest, plus reasonable attorneys fees incurred by Macquarie in connection with these Chapter 11 Cases, less any payments made after the date hereof, as Allowed under Class A2-B through J2-B of the Plan. Section 2.89 Section 2.86 Macquarie Senior Administrative Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion of any Administrative Claim(s) or superpriority Claim arising under section 507(b) or section 503(b) of the Bankruptcy Code held by Macquarie against allany Debtors except Sakonnet in connection with the Macquarie Senior Credit Facility, Macquarie Senior Secured Claim and Macquarie Cash Collateral Order. Section 2.90 Section 2.87 Macquarie Senior Credit Facilitymeans that certain $202,000,000 revolving credit facility agreement, dated as of August 29, 2006, by and between OBOH, OBO1, OBO2, OBO3, RMJ and non-Debtor Sagamore Shipping Ltd. as borrowers, and Macquarie as lender and the successor-in-interest to the Nordea Lender Group, as amended, supplemented or otherwise modified as of the Petition Date, and including all documents executed and delivered in connection therewith including, without limitation, the Macquarie-BHO Senior Loan Guaranty. As of the Petition Date, the principal amount outstanding under the Macquarie Senior Credit Facility was approximately $18,837,000. Section 2.91 Section 2.88 Macquarie Senior Deficiency Claim means, pursuant to the Macquarie Plan Term Sheet, that Allowed portion of any Deficiency Claim(s) held by Macquarie against all Debtors except Sakonnet in connection with the Macquarie Senior Credit Facility and Macquarie Senior Secured Claim. Section 2.92 Section 2.89 Macquarie Senior Loan Collateral means, pursuant to the Macquarie Senior Credit Facility, the following Assets subject to any senior liens and security interests: (i) Macquarie Collateral Vessels, (ii) a security interest in certain bank accounts, (iii) a security interest in the shares of stock of OBOH, and each of OBO1, OBO2, OBO3, RMJ and non-Debtor Sagamore Shipping Ltd., (iv) a pledge of 50% of the outstanding shares of Nordan OBO II Inc., which operates the Seapowet Vessel, (v) a security interest in the proceeds of the operations and insurances of the Macquarie Collateral Vessels, and (vi) charterparty assignments in respect of the Macquarie Collateral Vessels. Section 2.93 Section 2.90 Macquarie Senior Secured Claim means the Secured Claim of Macquarie against all Debtors except Sakonnet pursuant to the Macquarie Senior Credit Facility and the Macquarie Cash Collateral Order. Section 2.94 Section 2.91 Macquarie Settlement Contribution means the Macquarie OBO2 Vessel Settlement Allocation, the Macquarie OBO3 Vessel Settlement Allocation, the Macquarie 14
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 21 of 71 RMJ Vessel Settlement Allocation, the TTMI Settlement Proceeds and other assets (as set forth in the Macquarie Plan Term Sheet) that Macquarie has agreed to contribute to enable enhanced Distributions to holders of General Unsecured Claims who do not opt out of the releases to be provided under Section 11.6 of the Plan or who do not vote to reject the Plan. Section 2.95 Section 2.92 Macquarie Swap Claim means any and all claims arising under ISDA Master Agreement, dated February 28, 2005, between OBOH, OBO1, OBO2, OBO3, RMJ and Sagamore Shipping Ltd., acting jointly and severally as Party B, and Macquarie, as successor in interest to Nordea Bank Finland PLC, and all schedules, agreements, addenda, confirmations and other documents related thereto. Section 2.96 Section 2.93 Macquarie US means Macquarie US Trading LLC.
Section 2.97 Section 2.94 Non-BHO Equity Interests means all Equity Interests in all Debtors other than BHO, which Equity Interests are either directly or indirectly (through subsidiaries) owned by BHO. Section 2.98 Section 2.95 Nordea Lender Group means, collectively, Nordea Bank Norge SA as agent, bookrunner and lead arranger, Nordea Bank Finland PLC as senior swap bank, and DVB Bank America NV, Bank of Scotland Plc and HSH Nordbank AG as co-arrangers. Deutsche Schiffs Bank AG and UniCredit Bank AG later joined the Nordea Lender Group. On May 15, 2012, the position held by UniCredit Bank AG was purchased by Macquarie Bank, which later also purchased the entire Nordea Credit Facility during the pendency of these Chapter 11 Cases. Section 2.99 Section 2.96 Notice and Claims Agent means Rust Consulting/Omni Bankruptcy, retained as the Debtors claims agent by order of the Bankruptcy Court dated August 24, 2012 [Docket No. 178]. Section 2.100 Section 2.97 OBOH means Debtor OBO Holdings Ltd., incorporated in the Marshall Islands and holding company of OBO1, OBO2, OBO3 and RMJ. Section 2.101 Section 2.98 OBO1 means Debtor BHOBO One Ltd., incorporated in the Marshall Islands and former operator of the Bonnie Smithwick Vessel. Section 2.102 Section 2.99 OBO2 means Debtor BHOBO Two Ltd., incorporated in the Marshall Islands and operator the RIP Hudner Vessel. Section 2.103 Section 2.100 OBO3 means Debtor BHOBO Three Ltd., incorporated in the Marshall Islands and operator of the Searose G Vessel. Section 2.104 Section 2.101 Other Priority Claim means any claim other than an Administrative Expense Claim or a Priority Tax Claim that is entitled to priority in payment pursuant to section 507(a) of the Bankruptcy Code.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 22 of 71 Section 2.105 Section 2.102 Other Secured Claim means any Secured Claim against a Debtor that is not a Macquarie Secured Claim or Scotiabank Secured Claim. Section 2.106 Section 2.103 Periodic Distribution Date means a date after the Effective Date, which shall occur on a Business Day that is approximately sixty (60) days after the immediately preceding Distribution Date. Section 2.107 Section 2.104 Petition Date means May 30, 2012, that date on which all the Debtors other than Seasak filed voluntary petitions commencing these Chapter 11 Cases. Section 2.108 Section 2.105 Plan means this firstsecond amended joint plan of reorganization for the Debtors, including all exhibits, schedules, and supplements hereto, as the same may be amended or modified from time to time in accordance with the provisions of the Bankruptcy Code. Section 2.109 Section 2.106 Plan Administrator means Buchwald Capital Advisors, LLC, solely in its capacity as representative of each of the Debtors and their Estates from and after the Effective Date for purposes of administering and consummating the Plan, or any successor thereto. Section 2.110 Section 2.107 Plan Administrator Agreement means the form of agreement between the Debtors and the Plan Administrator attached to this Plan as Exhibit C. Section 2.111 Section 2.108 Plan Administrator Expenses means all reasonable, actual and necessary fees, costs, expenses and obligations incurred by or owed to, the Plan Administrator and its respective agents, employees, attorneys, advisors and other professionals in administering the Plan, including, without limitation, (a) reasonable compensation for services rendered, and reimbursement for actual and necessary expenses incurred, by the Plan Administrator and each of its agents, employees and professionals after the Effective Date through and including the date upon which the Bankruptcy Court enters a final decree closing the Chapter 11 Cases and (b) all fees payable pursuant to Section 13.1 of the Plan. Section 2.112 Section 2.109 Plan Administrator Expense Reserve Amount means Cash in an amount equal to $150,000. Section 2.113 Section 2.110 Plan Supplement means the compilation of documents and forms of documents, schedules and exhibits to the Plan, if any, that, if to be filed, shall be filed no later than five days before the Confirmation Hearing or such later date as may be approved by the Bankruptcy Court, and additional documents filed with the Bankruptcy Court before the Effective Date as amendments. Section 2.114 Section 2.111 Post-Confirmation Period means the period of time between the Confirmation Date until the Effective Date.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 23 of 71 Section 2.115 Section 2.112 Priority Tax Claim means any Claim of a governmental unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code. Section 2.116 Section 2.113 Pro Rata means, with respect to any Distribution on account of any Allowed Claim, the ratio that the amount of such Allowed Claim bears to the aggregate amount of all Claims (including Disputed Claims until disallowed) in the same Class. Section 2.117 Section 2.114 Professional Claims means Claims for compensation for services rendered or reimbursement of expenses incurred through and including the Effective Date under section 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code. Section 2.118 Section 2.115 Professional Claims Objection Deadline means the date that is the first Business Day that is forty-five (45) days after the Effective Date, as such deadline may be extended from time to time by order of the Bankruptcy Court. Section 2.119 Section 2.116 Professional Claims Reserve means the account to be established by the Plan Administrator and funded with the Professional Claims Reserve Amount pursuant to Section 6.10 of the Plan. Section 2.120 Section 2.117 Professional Claims Reserve Amount means the amount of the anticipated Allowed Professional Claims as estimated in good faith by the Debtors professionals and the Creditors Committees professionals and determined by the Bankruptcy Court at the Confirmation Hearing to be a reasonable estimate of such anticipated Allowed Professional Claims. Section 2.121 Section 2.118 Protrans means Debtor Product Transport Corp., incorporated in Bermuda and sub-charterer of vessels to third party charterers. Section 2.122 Section 2.119 Protrans Crane Deposit means, pursuant to the Scotiabank Plan Term Sheet, that certain crane system deposit (or the proceeds of any sale or other disposition thereof) that shall be entirely allocated to Protrans. Section 2.123 Section 2.120 Rejection Damage Claim means a Claim for damages arising from the rejection by any Debtor of any executory contract or unexpired lease pursuant to section 365 or 1123 of the Bankruptcy Code. Section 2.124 Section 2.121 Rejection Damage Claim Bar Date means the date that is the first Business Day that is thirty (30) days after the date of the entry of an order authorizing the rejection of an executory contract or unexpired lease, except as otherwise set forth in any order authorizing rejection of an executory contract or unexpired lease, as provided in the Claims Bar Date Order. Section 2.125 Section 2.122 Related Equipment means, with respect to any vessel owned by any of the Debtors, such vessels engines, boilers, machinery, boats, equipment, tackle, appurtenances, bunkers, parts, stores, consumables, spare gear and belongings. 17
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 24 of 71 Section 2.126 Section 2.123 Released Parties means, collectively, (a) Macquarie, (b) Scotiabank, (c) the Hudner Released Parties, (d) the Creditors Committee and the members thereof in their capacity as such, (e) the Plan Administrator, (f) each of the respective current and former officers, directors, employees, members, affiliates, financial advisors, attorneys, professionals, accountants, investment bankers, consultants, agents, and other representatives and advisors of the parties in (a) through (e) above, and (g) the Debtors, their successors and assignees, and the Debtors current and former officers, directors, employees, members, affiliates, financial advisors, attorneys, professionals, accountants, investment bankers, consultants, agents, and other representatives and advisors. Section 2.127 Section 2.124 RIP Hudner Vessel means the ore-bulk-carrier RIP Hudner operated by OBO2. Section 2.128 Section 2.125 RMJ means Debtor RMJ OBO Shipping Ltd., incorporated in the Marshall Islands and operator of the Roger M. Jones Vessel. Section 2.129 Section 2.126 Roger M. Jones Vessel means the ore-bulk-carrier Roger M. Jones operated by RMJ. Section 2.130 Section 2.127 Sakonnet means Debtor Sakonnet Shipping Ltd., incorporated in the Marshall Islands and former operator of the Sakonnet Vessel, which was sold in September 2012. Section 2.131 Section 2.128 Sakonnet Vessel means the ore-bulk-carrier ship formerly operated by Sakonnet. Section 2.132 Section 2.129 Schedules means, collectively, the schedules of the Debtors assets and liabilities, the statement of the Debtors financial affairs, and any other schedules and statements filed with the Bankruptcy Court pursuant to sections 521 or 1106 of the Bankruptcy Code or Bankruptcy Rule 1007, as such schedules and statements have been or may be amended and supplemented from time to time in accordance with Bankruptcy Rule 1009. Section 2.133 Section 2.130 Scotiabank means The Bank of Nova Scotia Asia Limited. Section 2.134 Section 2.131 Scotiabank-BHO Guaranty means the BHO written guaranty of the Scotiabank Credit Facility. Section 2.135 Section 2.132 Scotiabank-BHO Deficiency Claim means, pursuant to the Scotiabank Plan Term Sheet, that Allowed portion of any Deficiency Claim held by Scotiabank against BHO in connection with the Scotiabank-BHO Guaranty, as Allowed under Class A3-C of the Plan; provided, however, that Distributions on account of an Allowed Scotiabank-BHO Deficiency Claim shall not be made unless and until the Scotiabank-BHO Claim Settlement Threshold is satisfied. Section 2.136 Section 2.133 Scotiabank-BHO Claim Settlement Threshold means, pursuant to the Scotiabank Plan Term Sheet, that any Allowed Scotiabank-BHO Deficiency Claim in connection with the Scotiabank-BHO Guaranty, the Scotiabank Credit Facility and the Scotiabank 18
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 25 of 71 Secured Claim shall be subordinated to holders of Allowed General Unsecured Claims against BHO in Class A3-A unless and until an aggregate of $2,000,000.00 is or becomes available for Distribution to such holders of Allowed General Unsecured Claims against BHO. Section 2.137 Section 2.134 Scotiabank-Sakonnet Claim Settlement Threshold means, pursuant to the Scotiabank Plan Term Sheet, that any Scotiabank Administrative Claim and Scotiabank-Sakonnet Deficiency Claim in connection with the Scotiabank Credit Facility and Scotiabank Secured Claim shall be subordinated to holders of Allowed General Unsecured Claims against Sakonnet in Class K3-A unless and until an aggregate of $300,000.00 is or becomes available for Distribution to such holders of Allowed General Unsecured Claims against Sakonnet. Section 2.138 Section 2.135 Scotiabank-Sakonnet Deficiency Claim means, pursuant to the Scotiabank Plan Term Sheet, that Allowed portion of any Deficiency Claim held by Scotiabank against Sakonnet in connection with the Scotiabank Secured Claim and Scotiabank Credit Facility, as Allowed under Class K3-B of the Plan; provided, however, that Distributions on account of an Allowed Scotiabank-Sakonnet Deficiency Claim shall not be made unless and until the Scotiabank-Sakonnet Claim Settlement Threshold is satisfied. Section 2.139 Section 2.136 Scotiabank-Sakonnet EBC Arbitration Claim means, that certain arbitration claim against Egyptian Bulk Carriers for broken mooring lines aboard the Sakonnet Vessel. Section 2.140 Section 2.137 Scotiabank-Sakonnet EBC Arbitration Allocation means, pursuant to the Scotiabank Plan Term Sheet, the proceeds from the Scotiabank-Sakonnet EBC Arbitration Claim specifically allocated to holders of General Unsecured Claims against the Sakonnet. Section 2.141 Section 2.138 Scotiabank Administrative Claim means, pursuant to the Scotiabank Plan Term Sheet, that Allowed portion of any Administrative Claim or superpriority Claim arising under section 507(b) or section 503(b) of the Bankruptcy Code held by Scotiabank against Sakonnet in connection with the Scotiabank Credit Facility; provided, however, that Distributions on account of an Allowed Scotiabank-Sakonnet Administrative Claim shall not be made unless and until the Scotiabank-Sakonnet Claim Settlement Threshold is satisfied. Section 2.142 Section 2.139 Scotiabank Cash Collateral means the Cash Collateral securing the Debtors obligations to Scotiabank under the Scotiabank Credit Facility pursuant to the Scotiabank Cash Collateral Order and Scotiabank Plan Term Sheet. Section 2.143 Section 2.140 Scotiabank Cash Collateral Carveout means, pursuant to the Scotiabank Plan Term Sheet, Scotiabank Cash Collateral that Scotiabank agreed to carveout from the Scotiabank Collateral to pay specified Allowed Administrative Expense Claims (other than an Allowed Scotiabank Administrative Claim) against Sakonnet. Any remaining funds from the Scotiabank Cash Collateral Carveout after payment of such specified Allowed Administrative Expense Claims shall become Scotiabank Collateral for Distribution under the Plan.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 26 of 71 Section 2.144 Section 2.141 Scotiabank Cash Collateral Order means that certain Interim Order Pursuant to 11 U.S.C. 105(a), 361 and 363 (A) Authorizing Use of Cash Collateral and (B) Granting Adequate Protection to Scotiabank dated June 28, 2012 (Dkt. No. 66), as amended and modified by subsequent orders and stipulations dated July 12, 2012, July 17, 2012, July 16, 2012 and August 3, 2012 (Dkt Nos. 77, 83, 103 and 120). Section 2.145 Section 2.142 Scotiabank Collateral means, collectively, pursuant to the Scotiabank Plan Term Sheet and subject to any senior liens and security interests, the aggregate amount of the (i) Scotiabank Cash Collateral to be turned over to Scotiabank; plus (ii) Scotiabank Vessel; plus (iii) Scotiabank Other Collateral; less (iii) the amount of the Scotiabank Carveout. Section 2.146 Section 2.143 ScotribankScotiabank Contribution means the amounts Scotiabank has agreed to contribute to Distributions to holders of General Unsecured Claims and to the Debtors estates as set forth in the Scotiabank Plan Term Sheet. Section 2.147 Section 2.144 Scotiabank Credit Facility means that certain term loan facility to purchase the Sakonnet Vessel, dated on or about January 24, 2007, by and between Sakonnet, as borrower, and Scotiabank, as lender, in the amount of $27,300,000, as amended, supplemented or otherwise modified as of the Petition Date, and including all documents executed and delivered in connection therewith including, without limitation, the Scotiabank-BHO Guaranty. As of the Petition Date, the principal amount outstanding under the Scotiabank Loan Agreement was approximately $9,636,856.9,642,857. Section 2.148 Section 2.145 Scotiabank Other Collateral means all Collateral other than the Scotiabank Vessel and the Scotiabank Cash Collateral, granted by any of the Debtors pursuant to, and as described in, the Scotiabank Credit Facility, subject to any senior liens and security interests. Section 2.149 Section 2.146 Scotiabank Plan Term Sheet means that certain agreement, dated as of August 23, 2012, by Scotiabank and the Creditors Committee, a true and correct copy of which is attached to this Plan as Exhibit B. Section 2.150 Section 2.147 Scotiabank Secured Claim means, collectively, the Secured Claims of Scotiabank against Sakonnet arising under the Scotiabank Credit Facility, those claims alleged in the Scotiabank-Sakonnet EBC Arbitration Claim but not otherwise allocated, plus post-petition interest, plus reasonable attorneys fees incurred by Scotiabank in connection with these Chapter 11 Cases, less any payments made after the date hereof, as Allowed under Class K2-B of the Plan; provided, however, that the Allowed amount of the Scotiabank Secured Claim shall not exceed an aggregate of $9,636,856.. Section 2.151 Section 2.148 Scotiabank Settlement Contribution means the amounts Scotiabank has agreed to contribute to Distributions to holders of General Unsecured Claims and to the Debtors estates as set forth in the Scotiabank Plan Term Sheet. Section 2.152 Section 2.149 Scotiabank Vessel means the first mortgage against the Sakonnet Vessel held by Scotiabank pursuant to the Scotiabank Credit Facility. 20
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 27 of 71 Section 2.153 Section 2.150 Seapowet means Debtor Seapowet Shipping Ltd., incorporated in the British Virgin Islands and 50% owner of non-Debtor Nordan OBO II, the operator of Seapowet Vessel. Section 2.154 Section 2.151 Seapowet Vessel means the ore-bulk-carrier Seapowet, 50% owned by Seapowet and operated by non-Debtor Nordan OBO II. Section 2.155 Section 2.152 Searose G Vessel means the ore-bulk-carrier Searose G operated by OBO3. Section 2.156 Section 2.153 Searose Receivable Proceeds means the first $710,000 of charter hire generated by the Searose G Vessel between August 2, 2012 and the date of the Confirmation Hearing, but does not include any charter hire or other amounts in excess of such $710,000. Section 2.157 Section 2.154 Seasak means Debtor Seasak Trading Ltd., incorporated in the Marshall Islands and the holding company for Sakonnet and Seapowet. Section 2.158 Section 2.155 Secured Claim means a Claim to the extent (a) of the holders interest in the value of the Collateral securing such Claim, (b) determined by a Final Order in accordance with section 506(a) of the Bankruptcy Code as secured, or (c) of any valid and enforceable rights of setoff of the holder thereof under section 553 of the Bankruptcy Code. Section 2.159 Section 2.156 Specified Settlement Assets means Assets specifically designated to a particular Debtor pursuant to settlements that are allocated to the Debtor on equitable ownership principles, and shall include, without limitation (i) the Macquarie OBO2 Vessel Settlement Allocation, (ii) the Macquarie OBO3 Vessel Settlement Allocation, (iii) the Macquarie RMJ Vessel Settlement Allocation, (iv) the ADM Arbitration Allocation, (v) the Scotiabank-Sakonnet EBC Settlement Allocation, (vi) the Searose Receivable Proceeds, and (vii(vii) the net proceeds from the sale of the Straits-BHO Winch System, and (viii) any unencumbered Assets where legal title or entitlement to such Assets has been determined. Section 2.160 Section 2.157 Steering Committee means the committee constituted to oversee the liquidating and wind up of the Debtors and their Estates, as described in Section 7.3 of the Plan. Section 2.161 Section 2.158 Straits means Debtor Straits Offshore Ltd., incorporated in the British Virgin Islands to purchase a hotel and work barge project in a transaction that failed to close. Section 2.162 Section 2.159 Straits-BHO Winch System means that certain eight-point winch system (or the proceeds of any sale or other disposition thereof) owned by Straits. Section 2.163 Section 2.160 Subordinated Claim means any Claim that is subordinated in priority of payment pursuant to section 510 of the Bankruptcy Code or a Final Order of the Bankruptcy Court. 21
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 28 of 71 Section 2.164 Section 2.161 Third Party Release means the release given to the Hudner Released Parties by the Creditor Releasing Parties as set forth in 11.6(b) hereof. Section 2.165 Section 2.162 Third Party Release Fund means collectively, the Hudner Released Parties Contribution and the Macquarie Settlement Contribution, and any proceeds therefrom. Section 2.166 Section 2.163 TTMI Settlement means that settlement agreement by and among Debtors, TTMI Sarl of Geneva and JPMorgan Chase & Co., dated July 27, 2012, and corresponding stipulation and agreement among the Debtors, Creditors Committee and Macquarie regarding the use of certain of the TTMI settlement proceeds, as each was approved by the Bankruptcy Court on August 1, 2012 [Docket No. 117]. Section 2.167 Section 2.164 TTMI Settlement Proceeds means $350,000 in Cash from the proceeds of the TTMI Settlement. Section 2.168 Section 2.165 United States Trustee means the Office of the United States Trustee for the Southern District of New York. Section 2.169 Section 2.166 Interpretation, Application of Definitions, and Rules of Construction. For purposes of the Plan, unless otherwise provided herein: whenever from the context it is appropriate, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine and the neuter gender; (a) any reference in the Plan to an existing document, schedule, or exhibit, whether or not filed with the Bankruptcy Court, shall mean such document, schedule, or exhibit, as it may have been or may be amended, modified, or supplemented; (b) any reference to an entity as a holder of a Claim or Equity Interest includes that entitys permitted successors and assigns; (c) all references in the Plan to articles, sections, schedules, exhibits, and supplements are references to the respective articles, sections, schedules, exhibits, and supplements of or to the Plan, as the same may be amended, waived, or modified from time to time; (d) whenever the words include, includes, or including are used in the Plan, they shall be deemed to be followed by the words without limitation, whether or not they are in fact followed by those words or words of similar import; (e) the words herein, hereunder, hereof, and hereto refer to the Plan in its entirety rather than to a particular provision of the Plan; (f) subject to the provisions of any contract, certificate of incorporation, bylaw, instrument, release, or other agreement or document entered into in connection with the Plan, the rights 22
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 29 of 71 and obligations arising pursuant to the Plan shall be governed by, and construed and enforced in accordance with, applicable federal law, including the Bankruptcy Code and Bankruptcy Rules; (g) captions and headings to sections of the Plan are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan; (h) apply; (i) any term used in capitalized form in the Plan that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to such term in the Bankruptcy Code or the Bankruptcy Rules, as applicable; (j) all references to docket numbers of documents filed in the Chapter 11 Cases are references to the docket numbers under the CM/ECF system of the Bankruptcy Court; (k) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time, as applicable to the Chapter 11 Cases; (l) any immaterial effectuating provisions may be interpreted by the Plan Administrator after the Effective Date in such a manner that is consistent with the overall purpose and intent of the Plan, all without further Bankruptcy Court order; (m) in the event that a particular term of the definitive documentation required to be implemented pursuant to the terms of the Plan or any settlement or other agreement contemplated hereunder is inconsistent with a particular term of the Plan, the Plan shall govern and shall be binding on the parties thereto; (n) to the extent that the Macquarie Plan Term Sheet or Scotiabank Plan Term Sheet are inconsistent with the terms of the Plan or any schedule, exhibit, or supplement to the Plan, the terms of the Plan shall govern; (o) to the extent that the Confirmation Order is inconsistent with the Plan or any schedule, exhibit, or supplement to the Plan, the provisions of the Confirmation Order shall govern; (p) to the extent that the Disclosure Statement is inconsistent with the terms of the Plan, the terms of the Plan shall govern; (q) in computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply; (r) in the event that any payment, Distribution, act or deadline under the Plan is required to be made or performed or occurs on a day that is not a Business Day, then the making of such payment or Distribution, the performance of such act or the occurrence of such deadline shall be deemed to be on the next succeeding Business Day, but shall be deemed to have been completed or have occurred as of the required date; and 23
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the rules of construction set forth in section 102 of the Bankruptcy Code shall
12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 30 of 71 (s) all references in the Plan to monetary figures shall refer to currency of the United States of America. ARTICLE III ADMINISTRATIVE EXPENSE AND PRIORITY TAX CLAIMS Section 3.1 Administrative Expenses.
(a) Generally. Except (a) for the Macquarie Administrative Claim and the Scotiabank Administrative Claim and (b) to the extent that a holder of an Allowed Administrative Expense Claim agrees to less favorable treatment, or as otherwise provided in the Plan, each holder of an Allowed Administrative Expense Claim shall receive in full settlement, satisfaction, and release of such Claim, a Distribution of Cash in full, on or as soon as practicable after, the later of (i) the Effective Date, (ii) the date such claim becomes allowed, and (iii) the date for payment provided by any agreement or understanding between the Debtors or the Plan Administrator and the holder of such Claim. The rights of Macquarie, Scotiabank and the Creditors Committee shall not be prejudiced in any manner to the extent the Debtors used cash that was traceable to the proceeds of any particular asset prior to or after the Confirmation Date to pay any Administrative Expense Claim including Professional Claims. Any escrows established or to be established concerning payment of Administrative Expense Claims or other Claims shall remain in full force and effect after the Effective Date, until resolved by agreement of the relevant parties or decision of the Bankruptcy Court. To the extent that any such resolution treats any portion of such escrow as the cash collateral of Macquarie or Scotiabank, then such funds shall be distributed to Macquarie or Scotiabank (as the case may be). If the dispute between Macquarie and Scotiabank concerning payment of unallocated Administrative Expense Claims is resolved after all Administrative Expense Claims have been paid, then any portion of such $250,000 escrow that is not to be returned to Scotiabank under such resolution shall be distributed to Macquarie. Except as otherwise provided in the Plan, the General Bar Date Order, or any other order of the Bankruptcy Court (and excluding, for the avoidance of doubt, the Macquarie Administrative Claim, the Scotiabank Administrative Claim and any Administrative Expense Claims that have been fully satisfied or Allowed on or before the Effective Date), proofs of all Administrative Expense Claims (including requests for payment thereof) that accrue from and after the Petition Date through the Effective Date (other than Professional Claims) shall be filed with the Notice and Claims Agent, and served on counsel for the Debtors, the Creditors Committee, and the Lenders (if filed and served before the Effective Date) or the Plan Administrator (if filed and served on or after the Effective Date) on or before the Administrative Expense Claim Bar Date. The failure to properly file and serve such proof of an Administrative Expense Claim and payment request on or before the Administrative Expense Claim Bar Date shall result in such Administrative Expense Claim being deemed forever barred and Disallowed automatically without the need for any objection from the Debtors, the Plan Administrator or any other party in interest or any action by the Bankruptcy Court.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 31 of 71 TheAfter the Effective Date, the Plan Administrator, Macquarie and Scotiabank shall have the exclusive right to object to Administrative Expense Claims (other than Administrative Expense Claims that are Allowed as of the Effective Date) on or before the Claims Objection Deadline, subject to extension from time to time by order of the Bankruptcy Court. Unless such an objection is interposed to a timely-filed and properly-served Administrative Expense Claim and payment request, such Claim shall be deemed Allowed in the amount requested. In the event that the Plan Administrator, Macquarie or Scotiabank objects to an Administrative Expense Claim, the parties may confer to try to reach a settlement and, failing that, the Bankruptcy Court shall resolve the dispute. The Plan Administrator may settle Administrative Expense Claims in the ordinary course of business and without further Bankruptcy Court approval, but subject to the consent of Macquarie and/or Scotiabank to the extent either has expressed an interest in the objection. (b) Professional Compensation and Reimbursement Claims. Any holder of a Professional Claim shall (i) file its application for final allowance of such Claim on or before the Administrative Expense Claim Bar Date and (ii) unless such holder agrees to less favorable treatment, or as otherwise provided in the Plan, shall receive in full settlement, satisfaction, and release of such Claim, a Distribution of Cash, in full, in such amounts as are Allowed by the Bankruptcy Court, upon (x) the date of entry of an order granting such award, or as soon as practicable thereafter or (y) terms less favorable to such holder, as may be mutually agreed upon by such holder and, the Plan Administrator and any creditor or party in interest who filed an objection thereto. The failure to file and serve such fee application timely and properly shall result in the Professional Claim being forever barred and Disallowed. Objections to any applications for final allowance of a Professional Claim shall be filed and served by the Plan Administrator on the professional that filed such application on or before the Professional Claims Objection Deadline, subject to extension from time to time by order of the Bankruptcy Court. As soon as practicable following the seventh Business Day after the occurrence of the Professional Claims Objection Deadline, a hearing will be held to consider all timely-filed and properly-served applications for final allowance of a Professional Claim. (c) Macquarie Administrative Claim. The Macquarie Administrative Claim shall receive the treatment set forth in the Macquarie Plan Term Sheet. (d) Scotiabank Administrative Claim. The Scotiabank Administrative Claim shall receive the treatment set forth in the Scotiabank Plan Term Sheet. Section 3.2 Priority Tax Claims. Except to the extent that a holder of an Allowed Priority Tax Claim has been paid prior to the Effective Date or agrees to less favorable treatment, each holder of an Allowed Priority Tax Claim shall receive, in full and complete settlement, satisfaction and discharge of its Allowed Priority Tax Claim, a Distribution of Cash, in an amount equal to such Allowed Priority Tax Claim on, or as soon as reasonably practicable after, the later of (i) the Effective Date, (ii) the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, and (iii) the date on which such Priority Tax Claim becomes due and payable pursuant to any agreement between the Debtors or Plan Administrator (as applicable) and a holder of a Priority Tax Claim. 25
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 32 of 71 ARTICLE IV CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS Section 4.1 Classification. Generally, for voting and Distribution purposes, a Claim or Equity Interest is classified in a particular Class only to the extent that the Claim or Equity Interest qualifies within the description of that Class, and is classified in a different Class to the extent the Claim or Equity Interest qualifies within the description of such different Class. Unless otherwise provided, to the extent a Claim qualifies for inclusion in a more specifically defined Class and a more generally defined Class, it shall be included in the more specifically defined Class. The Plan is a joint plan of reorganization for the eleven Debtors. Debtors reserve the right to request at the Confirmation Hearing consolidation for purposes of Distributions to holders of Allowed Claims. Pursuant to section 1122 of the Bankruptcy Code, the following tables designate the Classes of Claims against, and Equity Interests in, the Debtors, and specify which of those Classes are (a) Impaired and entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code, (b) unimpaired and presumed to accept the Plan, and therefore not entitled to vote to accept or reject the Plan, and (c) Impaired and deemed to reject the Plan. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expense Claims and Priority Tax Claims are not classified, and the respective treatment of such unclassified claims is provided in Article II of the Plan. ALLOWED CLAIMS HELD AGAINST ONE DEBTOR SHALL BE SATISFIED SOLELY FROM THAT PORTION OF UNRESTRICTED CASH AND/OR OTHER ASSETS TO BE DISTRIBUTED ON ACCOUNT OF THE VALUE ATTRIBUTABLE TO SUCH DEBTOR AND ITS ESTATE. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NOTHING IN THIS PLAN OR IN THE DISCLOSURE STATEMENT SHALL CONSTITUTE OR BE DEEMED TO CONSTITUTE AN ADMISSION THAT ANY ONE OF THE DEBTORS IS SUBJECT TO OR LIABLE FOR ANY CLAIM AGAINST ANY OTHER DEBTOR. A CLAIM AGAINST MULTIPLE DEBTORS, TO THE EXTENT ALLOWED IN EACH DEBTORS CASE, SHALL BE TREATED AS A SEPARATE CLAIM AGAINST EACH DEBTORS ESTATE FOR ALL PURPOSES (INCLUDING, BUT NOT LIMITED TO, VOTING AND DISTRIBUTION, PROVIDED, HOWEVER, THAT NO HOLDER SHALL BE ENTITLED TO RECEIVE MORE THAN PAYMENT IN FULL OF ITS ALLOWED CLAIM), AND SUCH CLAIMS SHALL BE ADMINISTERED AND TREATED IN THE MANNER PROVIDED IN THE PLAN. A Claim or Equity Interest shall be placed in a particular Class only to the extent that such Claim or Equity Interest falls within the description of such Class, and shall be classified in other Classes to the extent that any portion of the Claim or Equity Interest falls within the description of such other Classes. For the avoidance of doubt, a Claim shall be placed in a particular Class for the purpose of receiving Distributions pursuant to the Plan only to the extent that the Claim is an Allowed Claim in such Class and the Claim has not been paid, released, or otherwise settled or compromised prior to the Effective Date. Section 4.2 BHO (B+H Ocean Carriers Ltd.) (Classes A1 through A4). 26
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Class A1 A2-A A2-B A3-A A3-B A3-C A4-A Description Other Priority Claims against BHO Other Secured Claims against BHO Macquarie Secured Claim against BHO General Unsecured Claims against BHO Macquarie Deficiency Claims against BHO Scotiabank-BHO Deficiency Claim against BHO Equity Interests in BHO Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.3
Class B1 B2-A B2-B B3-A B3-B B4-B
OBOH (OBO Holdings Ltd.) (Classes B1 through B4).

Description Other Priority Claims against OBOH Other Secured Claims against OBOH Macquarie Secured Claim against OBOH General Unsecured Claims against OBOH Macquarie Deficiency Claim against OBOH Equity Interests in OBOH Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.4
Class C1 C2-A C2-B C3-A C3-B
OBO1 (BHOBO One Ltd.) (Classes C1 through C4).

Description Other Priority Claims against OBO1 Other Secured Claims against OBO1 Macquarie Secured Claim against OBO1 General Unsecured Claims against OBO1 Macquarie Deficiency Claim against OBO1 Impairment Unimpaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
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Class C4-B Description Equity Interests in OBO1 Impairment Impaired Voting Rights Entitled to Vote
Section 4.5
Class D1 D2-A D2-B D3-A D3-B D4-B
OBO2 (BHOBO Two Ltd.) (Classes D1 through D4).

Section 4.6
Class E1 E2-A E2-B E3-A E3-B E4-B
OBO3 (BHOBO Three Ltd.) (Classes E1 through E4).

Section 4.7
Class F1
Protrans (Product Transport Corp.) (Classes F1 through F4).

Description Other Priority Claims against Protrans Impairment Unimpaired Voting Rights Presumed to Accept
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Class F2-A F2-B F3-A F4-B Description Other Secured Claims against Protrans Macquarie Secured Claim against Protrans General Unsecured Claims against Protrans Equity Interests in Protrans Impairment Impaired Impaired Impaired Impaired Voting Rights Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.8
Class G1 G2-A G2-B G3-A G3-B G4-B
RMJ (RMJ OBO Shipping Ltd.) (Classes G1 through G4).

Description Other Priority Claims against RMJ Other Secured Claims against RMJ Macquarie Secured Claim against RMJ General Unsecured Claims against RMJ Macquarie Deficiency Claim against RMJ Equity Interests in RMJ Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.9
Class H1 H2-A H2-B H3-A H3-B H4-B
Seapowet (Seapowet Shipping Ltd.) (Classes H1 through H4).

Description Other Priority Claims against Seapowet Other Secured Claims against Seapowet Macquarie Secured Claim against Seapowet General Unsecured Claims against Seapowet Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Macquarie Deficiency Claim against Seapowet Equity Interests in Seapowet
Section 4.10
Seasak (Seasak Trading Ltd.) (Classes I1 through I4).
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Class I1 I2-A I2-B I3-A I3-B I4-B Description Other Priority Claims against Seasak Other Secured Claims against Seasak Macquarie Secured Claim against Seasak General Unsecured Claims against Seasak Macquarie Deficiency Claim against Seasak Equity Interests in Seasak Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.11
Class J1 J2-A J2-B J3-A J4-B
Straits (Straits Offshore Ltd.) (Classes J1 through J4).

Description Other Priority Claims against Straits Other Secured Claims against Straits Macquarie Secured Claim against Straits General Unsecured Claims against Straits Equity Interests in Straits Impairment Unimpaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Section 4.12
Class K1 K2-A K2-B K3-A K3-B K4-B
Sakonnet (Sakonnet Shipping Ltd.) (Classes K1 through K4).

Description Other Priority Claims against Sakonnet Other Secured Claims against Sakonnet Impairment Unimpaired Impaired Impaired Impaired Impaired Impaired Voting Rights Presumed to Accept Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote Entitled to Vote
Scotiabank Secured Claim against Sakonnet General Unsecured Claims against Sakonnet Scotiabank-Sakonnet Deficiency Claim against Sakonnet Equity Interests in Sakonnet
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 37 of 71 ARTICLE V TREATMENT OF CLAIMS AND EQUITY INTERESTS Section 5.1 Debtors. (a) Treatment of Other Priority Claims and Other Secured Claims Common to All Other Priority Claims (Classes A1 through K1).
(i) Treatment. Except to the extent that a holder of an Allowed Other Priority Claim agrees to less favorable treatment, each holder of an Allowed Other Priority Claim shall receive in full settlement, satisfaction, and release of such Allowed Other Priority Claim, Distributions of Cash in an aggregate amount equal to the Allowed but unpaid portion of such Claim, on or as soon as practicable after, the later of (i) the Effective Date, (ii) the date such Other Priority Claim becomes an Allowed Other Priority Claim, and (iii) the date on which such Other Priority Claim becomes due and payable pursuant to any agreement between the Debtors or Plan Administrator (as applicable) and a holder of an Other Priority Claim. (ii) Impairment and Voting. Other Priority Claims in Classes A1 through K1 are Unimpaired. Holders of Allowed Other Priority Claims in Classes A1 through K1 shall be deemed to have accepted the Plan, and accordingly are not entitled to vote to accept or reject the Plan. (b) Other Secured Claims (Classes A2 through K2).
(i) Treatment. In full satisfaction, release and discharge of, and in exchange for, its Allowed Other Secured Claim, each holder of an Allowed Other Secured Claim shall receive, at the option of the Plan Administrator, (a) the Collateral in which such holder has a security interest; (b) the proceeds, if any, actually received by a Debtor from the sale or disposition of the Collateral in which such holder has a security interest; (c) cash in the amount of such holders Allowed Other Secured Claim; (d) such other Distributions or treatment as is necessary to leave the rights of such holder Unimpaired or as is necessary to otherwise satisfy the requirements of Chapter 11 of the Bankruptcy Code; or (e) such other treatment as may be agreed upon by such holder and the Debtors or Plan Administrator (as applicable), in each such case on, or as soon as reasonably practicable after, the latest of (i) the Effective Date, (ii) the date on which such Other Secured Claim becomes an Allowed Other Secured Claim or (iii) the date on which such Other Secured Claim becomes due and payable pursuant to any agreement between the Debtors or Plan Administrator (as applicable) and the holder of an Allowed Other Secured Claim. (ii) Impairment and Voting. Class A2 through K2 Claims are Impaired and, accordingly, the holder of an Allowed Other Secured Claim in Class A2 through K2 is entitled to vote to accept or reject the Plan.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 38 of 71 Section 5.2 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against All Debtors Except Sakonnet. (a) Macquarie Secured Claim (Classes D2-B, E2-B, and G2-B).
(i) Allowance. Without prejudice to Macquaries right to subsequently different amounts and without prejudice to the Debtors right to object to any such assertion, the Macquarie Secured Claim is Allowed in an aggregate amount equal to $25,575,215 consisting of: (i) $18,837,000 in principal amount on account of the Macquarie Senior Secured Claim, plus pre-petition interest in the amount of $241,817, plus post-petition interest in the amount of $530,622 (through October 31, 2012), plus additional post-petition interest that accrues on and after November 1, 2012 at approximately $3,439 per day, (ii) $782,315 in principal amount on account of the Macquarie Swap Claim plus post-petition interest in the amount of $21,758 (through October 31, 2012), plus additional post-petition interest that accrues on and after November 1, 2012 at approximately $141 per day; and (iii) $3,975,230 in principal amount on account of the Macquarie Junior Secured Claim, plus pre-petition interest in the amount of $70,933 , plus post-petition interest in the amount of $157,258 (through October 31, 2012), plus additional post-petition interest that accrues on and after November 1, 2012 at approximately $1,029 per day, plus reasonable attorneys fees incurred by Macquarie in connection with these Chapter 11 Cases in the amount of $958,282, less any payments made after the date hereof. Based on the value of Macquaries collateral, Macquaries Secured Claim is estimated, for voting purposes only, in an aggregate amount of $17,009,025 for Classes D2-B, E2-B, and G2-B, and the remainder of its claim, $8,566,190, shall be estimated, for voting purposes only, as a general unsecured claim for each Debtor in Classes A3-B through E3-B, G3-B, H3-B and I3-B. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, its Allowed Macquarie Secured Claim, Macquarie shall receive, subject to the provisions of the Macquarie Plan Term Sheet, the Disposition Procedures Order or any other order entered in these Chapter 11 Cases, Distributions of Macquarie Collateral on, or as soon as reasonably practicable after, the Effective Date. Recognizing that cash is fungible, in determining what constitutes Macquarie Collateral, the rights of Macquarie and the Creditors Committee shall not be prejudiced in any manner to the extent the Debtors used cash that was traceable to the proceeds of any particular asset prior to or after the Confirmation Date. As soon as practicable after full disposition of all of the Macquarie Collateral Vessels, the Debtors shall prepare and transmit the Cash Reconciliation to Macquarie and the Creditors Committee. Macquarie and the Creditors Committee shall have three business days to object to the Cash Reconciliation. If no objections are served on the parties within three business days, then the Cash Reconciliation shall be binding on all parties for all purposes. If Macquarie or the Creditors Committee objects to the Cash Reconciliation within such period, then, in the absence of agreement by the parties, either party may ask the Bankruptcy Court to determine the dispute. (iii) Impairment and Voting. Classes D2-B, E2-B, and G2-B are Impaired, and accordingly, the holders of an Allowed Claim in Classes D2-B, E2-B, and G2-B are entitled to vote to accept or reject the Plan. (b) General Unsecured Claims (Classes A3-A through J3-A). 32
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 39 of 71 (i) Allowance. Class A3-A through J3-A Claims shall be Allowed or Disallowed pursuant to procedures for resolving disputed, contingent and unliquidated Claims set forth in Article VII below. 1. Treatment. In full satisfaction, release and discharge of, and on account of its Allowed General Unsecured Claim in Classes A3-A through J3-A, each holder of such Allowed General Unsecured Claim will receive, from the Debtor against which it holds such Allowed General Unsecured Claim, (i) Distributions of Specified Settlement Assets, if any, and (ii) Distributions of General Settlement Assets pursuant to the General Settlement Asset Distribution Formula. Notwithstanding the foregoing, all Specified Settlement Assets and General Settlement Assets, to the extent that they are included in the Third Party Release Fund, will not be available for Distribution to those Creditors who opt-out of the Third Party Release Fund or who vote to reject the Plan. Only holders of Allowed General Unsecured Claims that either (i) do not vote to acceptreject this Plan, or (ii) abstain from voting and do not affirmatively elect to opt-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, shall share in the Third Party Release Fund. To the extent that the holder of an Allowed General Unsecured Claim either (i) votes to reject this Plan, or (ii) abstains from voting and affirmatively opts-out of the Third Party Release set forth in Section 11.6(b) of this Plan, then such holder shall not receive any Distribution from the Third Party Release Fund. (ii) Impairment and Voting. Class A3-A through J3-A Claims are Impaired, and accordingly, a holder of an Allowed General Unsecured Claim in Class A3-A through J3-A is entitled to vote to accept or reject the Plan. (c) I3-B). (i) Allowance. Pursuant to the Macquarie Plan Term Sheet, Classes A3-B through E3-B, G3-B, H3-B and I3-B are Allowed in an amount equal to a Macquarie Deficiency Claim. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, an Allowed Macquarie Deficiency Claim, Macquarie shall receive Pro Rata Distributions of the proceeds available to the holders of Allowed General Unsecured Claims; provided, however, that Distributions on account of an Allowed Macquarie Deficiency Claim shall not be made unless and until all Allowed General Unsecured Claims in Classes A3-B through E3-B, G3-B, H3-B and I3-B of the Plan have received an aggregate Distribution in excess of the Macquarie Claim Settlement Threshold. As of the Distribution Date that the Macquarie Claim Settlement Threshold is satisfied, and on each Distribution Date thereafter, each holder of an Macquarie Deficiency Claim shall receive its Pro Rata share (along with holders of Allowed General Unsecured Claims in Classes A3-A through E3-A, G3-A, H3-A and I3-A) of the remaining proceeds Distributable to the holders of Allowed General Unsecured Claims. The Macquarie Deficiency Claim shall not share in the Third Party Release Fund. Macquarie Deficiency Claim (Classes A3-B through E3-B, G3-B, H3-B and
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 40 of 71 (iii) Impairment and Voting. Classes A3-B through E3-B, G3-B, H3-B and I3-B are Impaired, and accordingly, Macquarie as the holder of an Allowed Macquarie Deficiency Claim is entitled to vote to accept or reject the Plan as a general unsecured claim in the estimated amount of $8,566,190. (d) Scotiabank-BHO Deficiency Claim (Class A3-C).
(i) Allowance. Pursuant to the Scotiabank Plan Term Sheet, a Class A3-C Claim is Allowed in an Amount equal to a Scotiabank-BHO Deficiency Claim. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, an Allowed Scotiabank-BHO Deficiency Claim, Scotiabank shall receive Pro Rata Distributions of the proceeds available to the holders of Allowed General Unsecured Claims against BHO; provided, however, that Distributions on account of an Allowed Scotiabank-BHO Deficiency Claim shall not be made unless and until all Allowed General Unsecured Claims against BHO in Class A3-A have received an aggregate Distribution in excess of the Scotiabank-BHO Claim Settlement Threshold pursuant to the Scotiabank Plan Termsheet. As of the Distribution Date that the Scotiabank-BHO Claim Settlement Threshold is satisfied, and on each Distribution Date thereafter, a holder of an Allowed Scotiabank-BHO Deficiency Claim shall receive its Pro Rata share (along with holders of Allowed General Unsecured Claims in Class A3-A against BHO) of the remaining proceeds available to the holders of Allowed General Unsecured Claims against BHO. Scotiabank shall not share in the Third Party Release Fund. (iii) Impairment and Voting. Class A3-C is Impaired, and accordingly, Scotiabank as the holder of an Allowed Scotiabank-BHO Deficiency Claim is entitled to vote to accept or reject the Plan. Section 5.3 Treatment of Secured Claims, General Unsecured Claims and Deficiency Claims Against Sakonnet. (a) Scotiabank-Sakonnet Secured Claim (Class K2-B).
(i) Allowance. PursuantWithout prejudice to Scotiabanks right to subsequently different amounts and without prejudice to the Debtors right to object to any such assertion, and pursuant to the Scotiabank Plan TermsheetTerm Sheet, the Scotiabank Secured Claim is Allowed in an aggregate amount equal to $9,636,856. 9,642,857, consisting of the amount outstanding under the Scotiabank Credit Facility as of the Petition Date, plus post-petition interest, plus attorneys fees and costs of $226,102 through October 31, 2012. Based on the value of Scotiabanks collateral, the Scotiabank Secured Claim is estimated, for voting purposes only, in an aggregate amount of $6,078,937.10 for Class K2-B, and the remainder of its claim, $3,563,919.90, shall be estimated, for voting purposes only, as a general unsecured claim for each Debtor in Classes A3-C and K3-B. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, its Allowed Scotiabank Secured Claim, subject to the terms of the Scotiabank Plan Term Sheet, the Disposition Procedures Order or any other order entered in these Chapter 11 34
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 41 of 71 Cases, Scotiabank shall receive Distributions of Scotiabank Collateral on, or as soon as reasonably practicable after the Effective Date. (iii) Impairment and Voting. Class K2-B is Impaired, and accordingly, Scotiabank is entitled to vote to accept or reject the Plan. (b) General Unsecured Claims against Sakonnet (Class K3-A).
(i) Allowance. The Class K3-A Claims shall be Allowed or Disallowed pursuant to procedures for resolving disputed, contingent and unliquidated Claims set forth in Article V below. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for its Allowed General Unsecured Claim, each holder of an Allowed General Unsecured Claim in Class K3-A shall receive: (i) Distributions of General Settlement Assets pursuant to the General Settlement Asset Distribution Formula, and (ii) a Pro Rata Distribution of the proceeds of the Scotiabank-Sakonnet EBC Arbitration Allocation. Notwithstanding the foregoing, all General Settlement Assets that are included in the Third Party Release Fund will not be available for Distribution to those Creditors who opt-out of the Third Party Release Fund or who vote to reject the Plan. Only holders of Allowed General Unsecured Claims in Class K-3A that either (i) do not vote to acceptreject this Plan, or (ii) abstain from voting and do not affirmatively elect to opt-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, shall share in the Third Party Release Fund. To the extent that the holder of an Allowed General Unsecured Claim in Class K3-A either (i) votes to reject this Plan, or (ii) abstains from voting and affirmatively opts-out of the Release by Holders of Claims and Released Parties set forth in Section 11.6(b) of this Plan, then such holder shall not receive any Distribution from the Third Party Release Fund. (iii) Impairment and Voting. Class K3-A is Impaired, and accordingly, a holder of an Allowed General Unsecured Claim in Class K3-A is entitled to vote to accept or reject the Plan. (c) Scotiabank-Sakonnet Deficiency Claim (Class K3-B).
(i) Allowance. Pursuant to the Scotiabank Plan Termsheet, a Class K3-B Claim is Allowed in an amount equal to a Scotiabank-Sakonnet Deficiency Claim. (ii) Treatment. In full satisfaction, release and discharge of, and in exchange for, an Allowed Scotiabank-Sakonnet Deficiency Claim, Scotiabank shall receive Pro Rata Distributions of the proceeds available to the holders of Allowed General Unsecured Claims against Sakonnet, provided, however, that Distributions on Account of an Allowed Scotiabank-Sakonnet Deficiency Claim shall not be made unless and until all Allowed General Unsecured Claims against Sakonnet in Class K3-A have received a Distribution in excess of the Scotiabank-Sakonnet Claim Settlement Threshold. As of the Distribution Date that the Scotiabank-Sakonnet Claim Settlement Threshold is satisfied, and on each Distribution Date thereafter, Scotiabank on account of an Allowed 35
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 42 of 71 Scotiabank-Sakonnet Deficiency Claim shall receive its Pro Rata share (along with holders of Allowed Class K3-A Claims) of the remaining proceeds available to the holders of Allowed Class K3-A Claims. Scotiabank shall not share in the Third Party Release Fund. (iii) Impairment and Voting. Class K3-B is Impaired, and accordingly, Scotiabank as the holder of an Allowed Scotiabank-Sakonnet Deficiency Claim is entitled to vote to accept or reject the Plan. Section 5.4 (a) Treatment of Equity Interests Against All Debtors (Classes A4 through K4). Equity Interests in BHO (Class A4-A).
(i) Treatment. Class A4-A consists of all Equity Interests in BHO. On the Effective Date, all Equity Interests in BHO shall be deemed without value and shall be cancelled and terminated (and BHO dissolved) by the Plan Administrator as soon as practicable after entry of a final decree closing BHOs chapter 11 case. No holder of Equity Interests in BHO shall receive or retain any property or interest in property under the Plan on account of its Equity Interests. (ii) Impairment and Voting. Class A4-A Equity Interests are Impaired. The holders of Equity Interests in Class A4-A are entitled to vote. (b) Non-BHO Equity Interests (Classes B4-B through K4-B).
(i) Treatment. Holders of Non-BHO Equity Interests in Classes B4-B through K4-B shall receive any dividend to which they would be entitled under the absolute priority rule, which dividends shall constitute Unencumbered Assets. The Non-BHO Equity Interests shall be cancelled and terminated (and the relevant Debtor dissolved) by the Plan Administrator as soon as practicable after entry of a final decree closing the relevant Debtors chapter 11 case. (ii) Impairment and Voting. Equity Interests in Classes B4-B through K4-B are Impaired and, accordingly, such holders of Equity Interests are entitled to vote to accept or reject the Plan. Section 5.5 Nonconsensual Confirmation. In the event that any Impaired Class of Claims or Equity Interests has not accepted the Plan or is deemed to have rejected the Plan, the Debtors (a) request that the Bankruptcy Court confirm the Plan in accordance with 1129(b) of the Bankruptcy Code with respect to such non-accepting Class, in which case the Plan shall constitute a motion for such relief and (b) reserve the right to amend the Plan in accordance with Section 13.6 hereof. Section 5.6 Elimination of Vacant Classes. Any Class of Claims against, or Equity Interests in, the Debtors that is not populated as of the commencement of the Confirmation Hearing by an Allowed Claim or Equity Interest or a Claim or Equity Interest temporarily allowed under Bankruptcy Rule 3018 shall be deemed eliminated from the Plan for purposes of (a) voting to accept or reject the Plan and (b) determining the acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code. 36
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 43 of 71 Section 5.7 Intercompany Claims. On the Effective Date, all Intercompany Claims shall be cancelled and extinguished, and the holders of such Intercompany Claims shall not be entitled to, or shall receive or retain, any property or interest in property on account of such Intercompany Claims. ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS Section 6.1 Distributions From the Third Party Release Fund. Holders of Allowed General Unsecured Claims against any of the Debtors shall share in the Third Party Release Fund, in accordance with the provisions of Article V of this Plan, but only to the extent that the holder of such an Allowed General Unsecured Claim does not vote to reject the Plan or affirmatively opt-out of the Third Party Release by Holders of Claims and Released Parties as set forth in Section 11.6(b) of this Plan. To the extent that the holder of an Allowed General Unsecured Claim against any of the Debtors either (i) votes to reject the Plan, or (ii) affirmatively opts-out of the of the Release by Holders of Claims and Released Parties as set forth in Section 11.6(b) of this Plan, then such holder of an Allowed General Unsecured Claim shall not be entitled to receive any Distribution from the Third Party Release Fund. Section 6.2 Distribution Record Date. Except as otherwise provided in the Plan, as of 12:00 p.m. (prevailing Eastern time) on the Distribution Record Date, there shall be no further changes in the record holders of any Claim against, or Equity Interest in, any of the Debtors, and the Plan Administrator shall have no obligation to recognize any transfer of any Claim against, or Equity Interest, in the Debtors occurring after the Distribution Record Date. The Plan Administrator shall be entitled to recognize and deal for all purposes under the Plan only with those record holders of Claims against, and Equity Interests in, the Debtors as of 12:00 p.m. (prevailing Eastern time) on the Distribution Record Date. Section 6.3 Manner of Payment. Any Distributions to be made on behalf of the applicable Estate pursuant to the Plan shall be made by checks drawn on accounts maintained by the Plan Administrator or by wire transfer if circumstances justify, at the option of the Plan Administrator, except as otherwise provided in the Disposition Procedures Order, the Confirmation Order or any other order entered in these Chapter 11 Cases. Section 6.4 Disbursement Agent. Except as otherwise provided in the Plan or the Confirmation Order, all transfers and Distributions required under the Plan shall be made in accordance with the terms and provisions of the Plan by the Plan Administrator, as Disbursement Agent, or such other entity designated by the Plan Administrator as Disbursement Agent. For the avoidance of doubt, the Plan Administrator or any such other entity designated by the Plan Administrator, shall act as Disbursement Agent with respect to all Distributions made on the Effective Date. Section 6.5 Delivery of Distributions. Subject to Bankruptcy Rule 9010, all Distributions to any holder of an Allowed Claim shall be made to the address of such holder as set forth in the Schedules or the books and records of the Debtors or its agents, as applicable, unless the Plan 37
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 44 of 71 Administrator has been notified in writing of a change of address, including by the filing of a proof of claim by such holder that contains an address for such holder different from the address reflected in the Debtors Schedules or books and records. Section 6.6 Allocation of Distributions Between Principal and Interest. The aggregate consideration to be Distributed to the holders of Allowed Claims under the Plan shall be treated as first satisfying an amount equal to the stated principal amount of the Allowed Claims of such holders, as determined for federal income tax purposes, and any remaining consideration as satisfying accrued but unpaid interest, if any. Section 6.7 No Postpetition Interest on Claims. Except as otherwise provided in the Plan, the Confirmation Order, or other Final Order entered by the Bankruptcy Court, or as required by applicable law, postpetition interest shall not accrue on or after the Petition Date on account of any Claim. Section 6.8 No Distribution in Excess of Allowed Amount of Claim. Notwithstanding any other provision of the Plan, no holder of an Allowed Claim shall receive in respect of such Claim any Distribution in excess of the Allowed amount of such Claim. Section 6.9 Distributions with Respect to Disputed Claims. Notwithstanding any other provision of the Plan, if all or any portion of a Claim is a Disputed Claim, no payment or Distribution provided under the Plan shall be made on account of such Claim unless and until such Disputed Claim becomes an Allowed Claim. Until such time as a Disputed Claim is determined by Final Order, the Plan Administrator shall withhold on account of such Claim the Distribution to which the holder of such Claim would be entitled under Article V of the Plan if such Claim were Allowed in full, provided, however, that if Debtors or the Plan Administrator, after the Effective Date, seek to estimate any Disputed Claim for purposes of Distribution then the Plan Administrator shall be entitled to withhold on account of such Disputed Claim the amount of the Claim as estimated by the Bankruptcy Court. At such time as a Disputed Claim becomes an Allowed Claim, the Disbursement Agent shall distribute to the holder of such Claim the property distributable to such holder pursuant to the Plan. To the extent that all or a portion of a Disputed Claim is Disallowed or expunged, the holder of such Claim shall not receive any Distribution on account of the portion of such Claim that is Disallowed or expunged. Section 6.10 Distributions with Respect to Defendants. Notwithstanding any other provision of the Plan, the Plan Administrator may, in its discretion, withhold any Distributions on account of any portion of a Claim held by an entity that (a) is a defendant in any pending contested matter or adversary proceeding being prosecuted by the Plan Administrator or (b) against whom the Plan Administrator may assert a Cause of Action. Section 6.11 Disputed Payments. If any dispute arises as to the identity of a holder of an Allowed Claim that is to receive any Distribution under the Plan, the Disbursement Agent may, in lieu of making such Distribution to such entity, make such Distribution into an escrow account until such dispute is resolved by Final Order of the Bankruptcy Court or by written agreement among the interested parties to such dispute. 38
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 45 of 71 Section 6.12 Setoffs. Except as otherwise provided in the Plan, the Confirmation Order, or in an agreement approved by a Final Order of the Bankruptcy Court, the Plan Administrator may, pursuant to applicable law (including section 553 of the Bankruptcy Code), set off against any Distribution related to any Claim before such Distribution is made on account of such Claim, any and all of the Claims (other than Claims released pursuant to the Plan), rights, and Causes of Action of any nature that the Debtors, the Estates, or Plan Administrator may hold against the holder of such Claim; provided, however, that none of the Debtors or the Plan Administrator shall, or shall be entitled, to assert any right to set off against (a) Macquarie Administrative Claim, (b) Scotiabank Administrative Claim, (c) Macquarie Secured Claim, (d) Scotiabank Secured Claim, (e) Macquarie Deficiency Claim, (ef) Scotiabank-BHO Deficiency Claim, and (fg) Scotiabank-Sakonnet Deficiency Claim; provided, further, that neither the failure to effect such a setoff, the allowance of any Claim hereunder, or any other act or omission of the Plan Administrator, nor any provision of the Plan, shall constitute a waiver or release by the Plan Administrator of any such Claims, rights and Causes of Action that the Plan Administrator may possess against such holder. To the extent that the Plan Administrator sets off a claim of the Estates against a holder of a Claim against the Debtors before a Distribution is made to the holder of such Claim against the Debtors pursuant to the Plan, the Plan Administrator shall be entitled to full recovery on the Debtors claim against such holder. No provision in the Plan shall be deemed to expand any right of setoff under applicable law. Notwithstanding the foregoing, no provision in the Plan, the Confirmation Order, or any other document that implements the Plan shall affect any setoff or recoupment right of the United States government. Section 6.13 Unclaimed Distributions and Time Bar to Cash Payments. If any Allowed Claim holders Distribution is returned as undeliverable, the Plan Administrator will take reasonable steps to attempt to deliver the Distribution to the holder of the Allowed Claim. Any holder of an Allowed Claim that does not advise the Plan Administrator that it has not received its, his or her Distribution within ninety (90) days after the date of attempted Distribution will have its, his or her Claim for such undeliverable Distribution discharged and will be forever barred from asserting any such Claim against the Debtor or its property. Distributions must be negotiated within ninety (90) days of the date of Distribution. Any Distributions which are undeliverable and unclaimed or have not been cashed within the time periods set forth above shall become available for Distribution to the holders of Allowed Claims in accordance with the Plan and the holder of an unclaimed or undeliverable Distribution shall not be entitled to any further Distribution under the Plan. Section 6.14 Distributions Free and Clear. Except as otherwise provided in the Plan, any Distribution or transfer made under the Plan, including, without limitation, Distributions to any holder of an Allowed Claim, shall be free and clear of any liens, Claims, encumbrances, charges and other interests, and no other entity shall have any interest, whether legal, beneficial or otherwise, in property distributed or transferred pursuant to the Plan. Section 6.15 De Minimis Distributions. Except as otherwise provided in the Plan, the Disbursement Agent shall not have any obligation to make a Distribution on account of an Allowed Claim if the amount to be Distributed to the holder of such Claim is less than $50.00 and does not 39
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 46 of 71 constitute a final Distribution to such holder. The Disbursement Agent shall have no obligation to make any Distribution on account of Allowed Claims in an amount less than $50.00. Section 6.16 Transfer of Assets Under Plan. All transfers of Assets under the Plan shall be made in accordance with applicable nonbankruptcy law. ARTICLE VII MEANS FOR IMPLEMENTATION Section 7.1 Compromises and Settlements. Pursuant to Bankruptcy Rule 9019, the Plan incorporates the Macquarie Plan Term Sheet and Scotiabank Plan Term Sheet, which resolve all issues relating to the validity, priority, amount, and extent of the prepetition and postpetition liens and Claims of each of the Lenders that may have been asserted by or on behalf of the Debtors or the Debtors Estates. For the avoidance of doubt, to the extent that a provision in either the Macquarie Plan Term Sheet or the Scotiabank Plan Term Sheet is not expressly incorporated herein, such provision is deemed to be included in the Plan by reference. In addition, Debtors, Macquarie and the Hudner Released Parties have agreed to compromise and settle (i) any and all Claims that the Hudner Released Parties may have against any of the Debtors, and (ii) any and all Causes of Action that Debtors or their Estate may have against any of the Hudner Released Parties. Provided all parties shall have fully performed all obligations under the Brokerage and Incentive Agreement is approved at or before the Confirmation Hearing, then on the Effective Date, the Hudner Released Parties shall: (i) make the Hudner Released Parties Contribution; and (ii) waive and release any and all Claims that could have been asserted by the Hudner Released Parties against any of the Debtors, provided, however, that nothing herein or in the Confirmation Order shall be deemed to be an express or implied waiver of any defense, offset, counter claim, or cause of action that the Hudner Released Parties may assert with respect to any Creditor that does not participate in the Third Party Release Fund. In exchange for the consideration contributed by each of the Lenders and the Hudner Released Parties as set forth in this Plan, (i) the Lenders Secured Claims have been Allowed in full in accordance with the Plan, and Macquarie and Scotiabank (or their respective designees), subject to the terms of the Macquarie Plan Term Sheet and Scotiabank Plan Term Sheet, respectively, will receive the liquidated proceeds of their Macquarie Collateral and Scotiabank Collateral, respectively, (ii) the Hudner Released Parties shall be released by the Debtors estates and by the holders of Allowed General Unsecured Claims who do not affirmatively elect to opt-out of the Third Party Release set forth in Section 11.6(b) of the Plan or who do not vote to reject the Plan, and (iii) holders of Allowed Priority Claims and Allowed General Unsecured Claims will receive the Distributions set forth and described in Article V of this Plan, and holders of Allowed General Unsecured Claims will receive enhanced recoveries as a result of the settlements described in this paragraph, except that the Third Party Release Fund will not be available to holders of Allowed General Unsecured Claims who affirmatively elect to opt-out of the Third Party Release set forth in Section 11.6(b) of the Plan or who vote to reject the Plan. The Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, and the Debtors respective obligations thereunder shall survive confirmation of the Plan and be unaffected thereby. As of the Effective Date, Macquarie and BHM shall be deemed to have waived all of their respective rights to receive any and all of the Searose Receivable Proceeds, which shall be distributed to General Unsecured Creditors who do not 40
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 47 of 71 affirmatively elect to opt-out of the Third Party Release set forth in Section 11.6(b) of the Plan or who do not vote to reject the Plan. Notwithstanding whether Creditors vote to accept or reject the Plan, or whether Creditors opt-out of the Third Party Release, if the Plan is confirmed, then the Released Parties shall be released by the Debtors estates. The Released Parties shall be released under the Plan regardless of the amount and/or timing of the Distribution(s), if any, received by a Creditor under the Plan. Section 7.2 Plan Administrator.
(a) Appointment and Powers. As of the Effective Date, the Plan Administrator shall be a representative of the Estates pursuant to section 1123 of the Bankruptcy Code and shall be vested with the rights and obligations of a chapter 11 trustee with the full power of a board or directors, subject to input from the Steering Committee in accordance with an agreement that is consistent with the terms of the Plan. The Plan Administrator shall replace the Debtors existing management and board of directors and shall become the representative of the Debtors Estates. The Plan Administrator shall act for the Debtors in the same fiduciary capacity as applicable to an officer of the Debtors, subject to the provisions hereof (and all bylaws, articles of incorporation and related corporate documents are deemed amended by this Plan to permit and authorize the same). All Distributions to be made under the Plan shall be made by the Plan Administrator. References in the Plan and the Disclosure Statement to transfers and/or assignments of property to the Plan Administrator, the Debtors or the Estates to occur on or after the Effective Date shall be made, in the Plan Administrators discretion, either to the Debtors or the Plan Administrator for Distribution in accordance with the Plan. The duties and powers of the Plan Administrator, subject to oversight by the Steering Committee as set forth below shall include, but not be limited to, the following: (i) To exercise all power and authority that may be necessary to implement the Plan, commence and prosecute all proceedings that may be commenced and take all actions that may be taken by any officer of the Debtors with like effect as if authorized, exercised and taken by unanimous action of such officer, including consummating the Plan; (ii) To maintain all bank accounts, make Distributions and take other actions consistent with the Plan, including the maintenance of appropriate reserves, in the name of the Debtors; (iii) To take all steps reasonably necessary and practicable to terminate the corporate existence of the Debtors; (iv) To make decisions regarding the retention or engagement of professionals or other Persons by the Debtors, and to pay, without Bankruptcy Court approval, all reasonable fees and expenses of the Debtors and their Estates accruing from and after the Effective Date. (v) recovery is probable; 41
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To prosecute and/or settle Causes of Action where a net
12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 48 of 71 (vi) Except for any Vessels still owned by any of the Debtors as of the Effective Date, to sell the Debtors remaining Assets either through a private sale or auction, except that sales of Assets for consideration in excess of $100,000 shall be subject to approval of the Steering Committee; (vii) To purchase and maintain E&O insurance or similar coverage for the benefit of the Plan Administrator and the Steering Committee, in such amounts as may be deemed reasonably necessary by the Plan Administrator and the Steering Committee; (viii) To take all other actions not inconsistent with the provisions of the Plan which the Plan Administrator deems reasonably necessary or desirable in connection with the administration and consummation of the Plan; and (ix) To exercise all authority as a majority shareholder of the Debtors subsidiaries, and to exercise such other powers as may be vested in the Plan Administrator by order of the Bankruptcy Court. (b) Resignation, Death or Removal of Plan Administrator. The Plan Administrator may be removed at any time for cause shown (including fraud or gross negligence) upon application to, and subject to the approval of, the Bankruptcy Court on at least twenty (20) days prior written notice to the U.S. Trustee and the Plan Administrator and its counsel. In the event of the resignation or removal, death or incapacity of the Plan Administrator, counsel to the Plan Administrator shall, subject to approval of the Steering Committee and the U.S. Trustee or the Bankruptcy Court, designate another Entity to serve as Plan Administrator and thereupon the successor Plan Administrator, without any further act, shall become fully vested with all of the rights, powers, duties and obligations of the predecessor. (c) Investments. All Cash held by the Plan Administrator in any accounts or otherwise shall be invested in accordance with section 345 of the Bankruptcy Code or as otherwise permitted by a Final Order of the Bankruptcy Court. Nothing in the Plan shall modify any obligations the Debtors or the Plan Administrator may have with respect to placing the Debtors funds in approved depositories or to report to or pay fees to the United States Trustee. The Plan Administrator shall not be required to post a bond or other surety or guaranty in connection with its duties as Plan Administrator. (d) No Agency Relationship, Limitation of Liability of Plan Administrator, Indemnification and Insurance. The Plan Administrator and its, his or her agents shall not be deemed to be the agent for any of the creditors in connection with the Cash held or distributed pursuant to the Plan. The Plan Administrator and its, his or her agents shall not be liable for any mistake of fact or law or error of judgment or any act or omission of any kind unless it constitutes gross negligence or willful misconduct. The Plan Administrator shall be indemnified and held harmless, including the costs of defending such claims, by the Debtors and their Estates against any and all claims arising out of the performance of its, his or her duties under the Plan, except to the extent its, his or her actions constitute gross negligence or willful misconduct. The Plan Administrator may obtain, at the expense of the Debtors and their Estates, commercially reasonable liability or other appropriate insurance with 42
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 49 of 71 respect to the indemnification obligation of the Plan Administrator. The Plan Administrator may conclusively rely, and shall be fully protected personally in acting upon, any statement, instrument, opinion, report, notice, request, consent, order, or other instrument or document which it, he or she believes to be genuine and to have been signed or presented by the proper party. The Plan Administrator may rely upon written information previously generated by the Debtors. (e) Reliance on Documents. The Plan Administrator may rely, and shall be protected in acting or refraining from acting, upon any certificates, opinions, statements, instruments or reports believed by it to be genuine and to have been signed or presented by the proper entity. (f) Requirement of Undertaking. The Plan Administrator may request any court of competent jurisdiction to require, and any such court may in its discretion require, in any suit for the enforcement of any right or remedy under the Plan, or in any suit against the Plan Administrator for any act taken or omitted by the Plan Administrator that the filing party litigant in such suit undertake to pay the costs of such suit, and such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant. Section 7.3 Steering Committee. On the Effective Date, a Steering Committee shall be constituted to oversee the liquidation and wind up of the Debtors and their Estates and shall consult with the Plan Administrator and have certain rights as set forth below. (a) The initial Steering Committee shall be constituted by members each holding one vote appointed as follows: (i) the Plan Administrator (1 member), (ii) the Creditors Committee (2 members), (iii) Macquarie (1 member); and (iv) Scotiabank (1 member). (b) Macquarie shall have veto power, which may be only exercised reasonably, with respect to the disposition of the Macquarie Collateral. Scotiabank shall have veto power, which may be only exercised reasonably, with respect to the disposition of the Scotiabank Collateral. (c) Each of Macquarie and Scotiabank shall resign from the Steering Committee as soon as it is no longer entitled to any further Distributions under the Plan. Upon such resignation, the Steering Committee shall be appropriately reconstituted if reasonable and necessary in accordance with the ongoing interests of the remaining entities entitled to Distributions under the Plan. (d) The scope and oversight the Steering Committee shall have over the Plan Administrator shall be described in the Plan Administrator Agreement. The agreement shall, among other things, require Steering Committee approval, pursuant to enumerated voting procedures contained in the agreement, of substantial actions proposed to be taken by the Plan Administrator, including without limitation, the liquidation, abandonment or other disposition of enumerated Assets and other Assets or groups of Assets of certain value thresholds, resolution of Claims above a certain dollar threshold, making Distributions, the incurrence and payment of significant post-Effective Date expenses, and reconstituting the Steering Committee based on vacancies or otherwise.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 50 of 71 Section 7.4 Administrative and Priority Claims Reserve. On the Effective Date, the Plan Administrator shall establish the Administrative and Priority Claims Reserve with the Administrative and Priority Claims Reserve Amount, funded with respect to (i) Administrative Expense Claims; (ii) Priority Tax Claims; and (iii) Other Priority Claims. As soon as practicable after all Administrative Expense Claims (other than the Macquarie Administrative Claim and Scotiabank Administrative Claim) and Priority Tax Claims have been either Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court, the Plan Administrator shall determine the amount of the Excess Administrative and Priority Claims Reserve and shall Distribute such Excess Administrative and Priority Claims Reserve in the same manner the Administrative and Priority Claims Reserve was initially funded as set forth in this Section 7.4 of the Planto Macquarie. Section 7.5 General Unsecured Claims Reserve. On the Effective Date, the Plan Administrator shall establish the General Unsecured Claims Reserve with the General Unsecured Claims Reserve Amount. As Disputed General Unsecured Claims either become Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court, any remaining balance of the General Unsecured Claims Reserve shall be Distributed by the Plan Administrator to holders of Allowed Claims against the relevant Debtors in accordance with the provisions of this Plan. Section 7.6 Professional Claims Reserve. On the Effective Date, the Plan Administrator shall establish the Professional Claims Reserve with the Professional Claims Reserve Amount. As soon as practicable after all Professional Claims have been either Allowed (and received a Distribution in accordance with the Plan) or Disallowed by the Plan, the Confirmation Order, or Final Order of the Bankruptcy Court, the Plan Administrator shall determine the amount of the Excess Professional Claims Reserve and the Disbursement Agent shall Distribute the Excess Professional Claims Reserve in the same manner such Professional Claims Reserve was initially funded as set forth in this Section 7.6 of the Planto Macquarie. Section 7.7 Causes of Action and Accounts Receivable.
(a) Preservation of Causes of Action and Accounts Receivable. In accordance with section 1123(b) of the Bankruptcy Code or any corresponding provision of federal or state laws, and except as otherwise provided in the Plan or the Confirmation Order, (i) on the Effective Date, all Causes of Actions and accounts receivable not constituting Macquarie Collateral or Scotiabank Collateral shall be transferred to the Plan Administrator, and (ii) on and after the Effective Date, all such Causes of Action and accounts receivable shall be retained by the Plan Administrator, who may enforce, sue on, settle, or compromise (or decline to do any of the foregoing) with respect to any or all of such Causes of Action and accounts receivable. (b) No Waiver. Except as otherwise provided in this Plan, the Macquarie Plan Term Sheet and the Scotiabank Plan Term Sheet, nothing in the Plan shall be deemed to be a waiver or relinquishment of any Claim, Cause of Action, account receivable, right of setoff, or other legal or equitable right or defense that the Estates may have or choose to assert on behalf of the Debtors or their respective Estates under any provision of the Bankruptcy Code or any applicable nonbankruptcy law. 44
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 51 of 71 No entity may rely on the absence of a specific reference in the Plan to any Cause of Action or account receivable against it as an indication that the Plan Administrator will not pursue any and all available Causes of Action or accounts receivable against it, and all such rights to prosecute or pursue any and all Causes of Action or accounts receivable against any entity are expressly reserved for later adjudication and, therefore, no preclusion doctrine, including, without limitation, the doctrines of res judicata, collateral estoppel, estoppel (judicial, equitable or otherwise) or laches, shall apply to such Causes of Action or accounts receivable upon or after the confirmation or consummation of the Plan. Section 7.8 Effectuating Documents and Further Transactions. Upon entry of the Confirmation Order, each of the Lenders, Debtors, and the Plan Administrator is authorized and directed to execute, deliver, file or record such contracts, instruments, releases, consents, certificates, resolutions, programs and other agreements and documents and take such actions as may be reasonably necessary or appropriate to effectuate, implement, consummate and further evidence the terms and conditions of the Plan, including, without limitation, performing all obligations under the Plan. As of the Effective Date, no member, partner or equity security holder (as applicable) of the Debtors shall take any action that affects, alters or creates any additional or incremental liability for or imputed to the Debtors. Section 7.9 Authority to Act. Confirmation of this Plan shall effect, prior to, on, or after the Effective Date, as applicable, for the deemed approval of all matters expressly provided for under the Plan that otherwise would require approval of the stockholders, equity security holders, officers, directors, partners, managers, members, or other owners of one or more of the Debtors; and all such approvals shall be deemed in effect prior to, on, or after the Effective Date, as applicable, pursuant to the applicable laws of the countries in which the Debtors are formed, without any requirement of further vote, consent, approval, authorization or other action by such stockholders, equity security holders, officers, directors, partners, managers, members or other owners of such entities or notice to, order of or hearing before the Bankruptcy Court. Section 7.10 Operations During Post-Confirmation Period. During the Post-Confirmation Period, the Debtors will continue to operate their businesses and manage their affairs until the occurrence of the Effective Date. During the Post-Confirmation Period, operations and expenses shall be funded from available cash, including proceeds of Macquarie Collateral, pursuant to any budgets that have previously been approved by the Bankruptcy Court or that may be agreed among the Debtors, the Creditors Committee and Macquarie. Notwithstanding any other provision of the Plan, during the Post-Confirmation Period, the Debtors may continue to pay Critical Vendors, but subject to the written consent of the Creditors Committee and Macquarie. Notwithstanding entry of the Confirmation Order, the Debtors shall continue to dispose of the Macquarie Collateral Vessels in accordance with the Disposition Procedures Order. ARTICLE VIII PROCEDURES FOR DISPUTED CLAIMS Section 8.1 Objections to Claims. As of the Effective Date, the Plan Administrator shall have the exclusive right to file and prosecute objections to, and negotiate, settle or otherwise resolve, 45
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 52 of 71 any and all Claims. In the event that any Debtor files an objection to, or motion to subordinate, a Claim prior to the Effective Date, on the Effective Date such objection or motion shall automatically be assigned to and shall be prosecuted by the Plan Administrator. Except as otherwise provided herein, any objection to a Claim shall be filed and served upon the holder of such Claim on or before the Claims Objection Deadline. Notwithstanding any authority to the contrary, an objection to a Claim shall be deemed properly served on the holder of such Claim or if service is made in any of the following manners (a) in accordance with rule 4 of the Federal Rules of Civil Procedure, as modified and made applicable by Bankruptcy Rule 7004, (b) by first class mail, postage prepaid, on any counsel that has appeared on behalf of the holder of such Claim in the Chapter 11 Cases and has not withdrawn such appearance, (c) by first class mail, postage prepaid, on the signatory on the respective proof of claim or interest or other representative identified on the proof of claim or interest or any attachment thereto, or (d) at the last known address of the holder of such Claim if no proof of claim is filed or if the Debtors or the Plan Administrator has been notified in writing of a change of address. Section 8.2 Estimation of Claims Post-Effective Date. As of the Effective Date, the Plan Administrator shall have the exclusive right to request at any time that the Bankruptcy Court estimate any Disputed Claim pursuant to section 502(c) of the Bankruptcy Code, for any reason or purpose, regardless of whether an objection has been previously filed with respect to such Claim, and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim including, without limitation, during the pendency of any appeal relating to any such objection. All of the aforementioned objection, estimation and resolution procedures are cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn, or otherwise resolved by any mechanism set forth in the Plan or approved by the Bankruptcy Court. Notwithstanding section 502(j) of the Bankruptcy Code, in no event shall any holder of a Claim that has been estimated be entitled to seek reconsideration of the estimation of such Claim unless the holder of such Claim has filed a motion requesting the right to seek such reconsideration on or before thirty (30) calendar days after the date such Claim is estimated by the Bankruptcy Court. Section 8.3 Settlement of Disputed Claims. Except as otherwise provided in the Plan and notwithstanding any requirements that may be imposed pursuant to Bankruptcy Rule 9019, as of the Effective Date, the Plan Administrator shall have the exclusive authority to compromise, settle, or otherwise resolve all Claims, rights, Causes of Actions, suits and proceedings, whether in law or in equity, whether known or unknown, that the Estates may hold against any entity, without the necessity for notice to or approval by the Bankruptcy Court or any other party in interest. ARTICLE IX EXECUTORY CONTRACTS AND UNEXPIRED LEASES Section 9.1 Assumption and Rejection of Executory Contracts and Unexpired Leases. Except as otherwise set forth in the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan or the Confirmation Order, all executory contracts and unexpired leases to which any of the Debtors are a party, including any executory contracts and unexpired leases, if any, previously assumed by the Debtors or entered into by the Debtors during the Chapter 11 Cases, shall be deemed automatically 46
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 53 of 71 rejected pursuant to sections 365 and 1123 of the Bankruptcy Code effective as of and subject to the occurrence of the Effective Date, except for those executory contracts or unexpired leases that (a) have already been rejected pursuant to a Final Order of the Bankruptcy Court or (b) have previously expired or terminated pursuant to their own terms (and not otherwise extended). Entry of the Confirmation Order by the Bankruptcy Court shall constitute an order of the Bankruptcy Court pursuant to sections 365 and 1123(b) of the Bankruptcy Code approving such rejections and determining that (a) with respect to such rejections, such rejected executory contracts or unexpired leases are burdensome and that the rejection thereof is in the best interests of the Estates and (b) with respect to such assumptions, that adequate assurance of future performance (within the meaning of section 365 of the Bankruptcy Code) by the assignee has been demonstrated and no further adequate assurance is required. Neither the Brokerage and Incentive Agreement nor the BHM Management Agreement shall be deemed automatically rejected under the Plan. As of the Effective Date, the Brokerage and Incentive Agreement and the BHM Management Agreement shall have been fully performed by all parties, and thus shall no longer be executory contracts subject to rejection. Confirmation of the Plan and entry of the Confirmation Order shall have no effect on the Brokerage and Incentive Agreement or the BHM Management Agreement, and no amounts ever paid thereunder shall be recoverable by the Debtors, their estates, the Plan Administrator or any person attempting to assert claims on behalf of the Debtors or their estates against the Hudner Releasees. Section 9.2 Objections to Rejection. Any non-Debtor party to an executory contract or unexpired lease that wishes to object to the rejection of such executory contract or unexpired lease, shall file an objection with the Bankruptcy Court prior to the Confirmation Objection Deadline and serve such objection on counsel to the Debtors. The failure to properly file and serve an objection to the rejection on or before the Confirmation Objection Deadline shall result in the non-Debtor party to the applicable executory contract or unexpired lease being (a) deemed to consent to such rejection and (b) barred, estopped, and permanently enjoined from (i) objecting to such rejection and precluded from being heard at the Confirmation Hearing with respect to such objection and (ii) asserting against the Debtors, the Estates, any of the Debtors property, or the Plan Administrator any default existing as of the Effective Date or any counterclaim, defense, setoff, or any other interest. With respect to any timely-filed and properly-served objection to the proposed rejection, the Debtors may, in their sole discretion, settle or otherwise resolve such objection, or respond to such objection (in which case the Bankruptcy Court shall determine such objection at the Confirmation Hearing). Section 9.3 Rejection Damage Claims. All Rejection Damage Claims shall be treated as General Unsecured Claims and classified in Classes A3-A through K3-A of the Plan, as the case may be (dependent upon which of the Debtors was the party to the subject executory contract or lease), and may be objected to in accordance with the provisions of Article VIII of the Plan and the applicable provisions of the Bankruptcy Code and the Bankruptcy Rules. All proofs of claim with respect to Rejection Damage Claims shall be filed with the Bankruptcy Court and served on the Plan Administrator on or before (a) the first Business Day that is thirty (30) calendar days after the Effective Date, with respect to the executory contracts and unexpired leases rejected pursuant to the Plan, (b) the first Business Day that is thirty (30) calendar days after entry of an order authorizing the rejection of the respective executory contract or unexpired lease, with respect to the executory contracts and unexpired leases rejected other than pursuant to the Plan, or (c) such other date as is ordered by the 47
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 54 of 71 Bankruptcy Court. The failure to properly file and serve a proof of claim with respect to a Rejection Damage Claim by the applicable deadline set forth in this Section 9.3 shall result in such Claim being deemed forever barred and Disallowed as of the Effective Date without the need for any objection by the Plan Administrator or any action by the Bankruptcy Court. Section 9.4 Modifications. Any modifications, amendments, supplements, and restatements to prepetition executory contracts and unexpired leases that have been executed by the Debtors during the Chapter 11 Cases and actions taken in accordance therewith, (a) do not alter in any way the prepetition nature of the executory contracts and unexpired leases, or the validity, priority or amount of any Claims against the Debtors that may arise under such executory contract or unexpired lease, (b) are not and do not create postpetition contracts or leases, (c) do not elevate to Administrative Expense Claims any Claims of the counterparties to the executory contracts and unexpired leases against any of the Debtors, and (d) do not entitle any entity to a Claim under any section of the Bankruptcy Code on account of the difference between the terms of any prepetition executory contracts or unexpired leases and subsequent modifications, amendments, supplements or restatements. ARTICLE X CONDITIONS PRECEDENT Section 10.1 Conditions Precedent to the Confirmation Date. The Plan shall not be confirmed unless and until the following conditions shall have been satisfied in full: (a) Disclosure Statement Approval Order. The Disclosure Statement Approval Order shall have been entered by the Bankruptcy Court in form and substance satisfactory to the Debtors, Macquarie, Scotiabank (with respect the Sakonnet and BHO Estates), and the Creditors Committee. (b) Plan Term Sheets. Each of the Macquarie Plan Term Sheet and Scotiabank Plan Term Sheet shall have been fully executed by the respective parties thereto, and otherwise shallcontinue to be in full force and effect. (c) Brokerage and Incentive Agreement. The Brokerage and Incentive Agreement shall have been approved at or before the Confirmation Hearingcontinue to be in full force and effect. Section 10.2 Conditions Precedent to the Effective Date. The Effective Date shall not occur and the Plan shall not become effective unless and until the following conditions have been satisfied in full: (a) Confirmation Order. The Confirmation Order shall have been entered by the Bankruptcy Court in form and substance satisfactory to the Debtors, Macquarie, Scotiabank (with respect the Sakonnet and BHO Estates), and the Creditors Committee and shall be in full force and effect, and there shall not be a stay or injunction (or similar prohibition) in effect with respect thereto. 48
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 55 of 71 (b) Other Acts; Execution and Delivery of Other Documents. All other actions and all agreements, instruments, or other documents necessary to implement the Plan shall have been (i) effected or (ii) duly and validly executed and delivered by the parties thereto and all conditions to their effectiveness shall have been satisfied or waived. (c) Disposition of Macquarie Collateral Vessels. Vessels shall have been fully disposed. The Macquarie Collateral
(d) Determination of Macquarie Collateral. The Cash Reconciliation shall have become effective and binding as specified in Section 5.2(a)(ii), or, if Macquarie or the Creditors Committee objected thereto in a timely manner, the parties shall have agreed or the Court shall have determined what constitutes Macquarie Collateral after taking into account the extent to which any cash that was used by Debtors prior to or after the Confirmation Date was traceable to the proceeds of any particular asset. (e) Brokerage and Incentive Agreement. All parties shall have fully performed all obligations under the Brokerage and Incentive Agreement. (f) (d) Consents. The Debtors shall have received all authorizations, consents, approvals, regulatory approvals, rulings, letters, opinions or documents, if any, necessary to implement the Plan. (g) (e) Reserves Funded. The Effective Date Cash Requirement shall have been funded, or reserved for, as applicable. Section 10.3 Waiver of Conditions Precedent. The conditions set forth in Section 10.2 of the Plan (other than the condition set forth in Section 10.2(c), which may only be waived by the Debtors and Macquarie) may be waived by the Debtors only with prior written consent of Macquarie, Scotiabank (with respect to the Sakonnet and BHO Estates) and the Creditors Committee. ARTICLE XI EFFECT OF CONFIRMATION Section 11.1 Vesting of Assets. As of the Effective Date, property of the Estates shall revest in the Debtors. The Debtors from and after the Effective Date (through the Plan Administrator) and without further Bankruptcy Court approval, may use, sell, transfer, assign, abandon or otherwise dispose of any of the Debtors remaining Assets for the purpose of liquidating and converting such assets to Cash, making Distributions and fully consummating the Plan. Section 11.2 Binding Effect. Subject to the occurrence of the Effective Date, on and after the Confirmation Date, the provisions of the Plan shall bind any holder of a Claim against, or Equity Interest in, the Debtors, and such holders respective successors and assigns, whether or not the Claim 49
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 56 of 71 or Equity Interest of such holder is Impaired under the Plan, whether or not such holder has accepted the Plan, and whether or not such holder is entitled to a Distribution under the Plan. Section 11.3 Injunction Against Interference with the Plan. Upon entry of the Confirmation Order, each of the Debtors, all holders of Claims against, or Equity Interests in, any of the Debtors, and other parties in interest, along with any current or former officers, directors, employees, agents, representatives, partners, limited partners, members, trustees, managers, affiliates, parents, subsidiaries, attorneys, auditors, appraisers, accountants, financial advisors, investment bankers, consultants, or other professionals of any of the foregoing and any entity controlling or controlled by any of the foregoing and any predecessors, successors and assigns of any of the foregoing, shall be enjoined from seeking to oppose, delay, interfere or otherwise frustrate implementation or consummation of the Plan. Section 11.4 Term of Injunctions or Stays Arising Under or Entered During the Chapter 11 Cases. Except as otherwise provided in the Plan, to the extent permitted by applicable law and subject to the Bankruptcy Courts post-confirmation jurisdiction to modify the injunctions and stays under this Section 11.4 of the Plan, (a) all injunctions with respect to or stays against an action against property of the Debtors Estates arising under or entered during the Chapter 11 Cases under sections 105 or 362 of the Bankruptcy Code, and in existence on the Confirmation Date, shall remain in full force and effect until such property is no longer property of the Debtors Estates and (b) all other injunctions and stays arising under or entered during the Chapter 11 Cases under sections 105 or 362 of the Bankruptcy Code shall remain in full force and effect until the earliest of (i) the date that the Chapter 11 Cases are closed pursuant to a Final Order of the Bankruptcy Court or (ii) the date that the automatic stay is lifted pursuant to a Final Order of the Bankruptcy Court. Section 11.5 Exculpation. To the fullest extent permissible under applicable law, except as otherwise provided in the Plan, none of the Debtors, the Debtors Estates, the Released Parties, or any of such parties successors and assigns, shall have or incur any liability to, or be subject to any right of action by, any holder of a Claim against, or Equity Interest in, any of the Debtors, or any other party in interest, or any of their respective agents, employees, representatives, financial advisors, attorneys, or agents acting in such capacity, or any of their successors and assigns, for any act or omission in connection with, related to or arising out of, the Chapter 11 Cases, the operation of the Debtors businesses during the Chapter 11 Cases, the formulation, preparation, negotiation, dissemination, implementation, administration, confirmation, or consummation of the Plan or any other contract, instrument, release, agreement, settlement, or document created, modified, amended, terminated, or entered into in connection with the Plan or any other act or omission in connection with the Debtors bankruptcy; provided, however, that this Section 11.5 shall not apply to any fraud, gross negligence, or willful misconduct by the Debtors or the Released Parties; provided, further, however, that nothing in this Section 11.5 shall impact the Allowance or Disallowance or Plan treatment or Plan preserved rights against the Debtors of any Claim not expressly released under the Plan. Section 11.6 Releases.
(a) Release by the Estates. On the Effective Date, for good and valuable consideration, to the fullest extent permissible under applicable law, the Debtors, the Debtors Estates, 50
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 57 of 71 and any person or entity seeking to exercise the rights of the Estates, including, without limitation, the Creditors Committee (in such derivative capacity for the Debtors Estates only) and its members (in such derivative capacity for the Debtors Estates only) and the Plan Administrator (collectively, Estate Releasing Parties), will be deemed to completely, conclusively, absolutely, unconditionally, irrevocably, and forever release the Released Parties, their successors, heirs and assigns and their respective property and interests in property, from any and all Claims, Equity Interests, liens, encumbrances, obligations, damages, demands, debts, suits, actions, Causes of Action, judgments, liabilities, or rights whatsoever, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, admiralty, equity, or otherwise, which the Estate Releasing Parties ever had, now has or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the Effective Date, including without limitation any Claims that are based in whole or in part upon any act, omission, transaction, agreement, event, or occurrence taking place on or prior to the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, the property of the Debtors, the business or contractual arrangements with any Debtor, the formulation, preparation, negotiation, dissemination, implementation, administration, confirmation, or consummation of the Plan or any other release or settlement created, modified, amended, terminated, or entered into in connection with the Plan, the restructuring of any Claims against, and Equity Interests in, the Debtors, the property to be Distributed under the Plan, or any other act or omission in connection with these Chapter 11 Cases, without further notice to or action by the Bankruptcy Court, or act or action under applicable law, regulation, order, or rule, or the vote, consent, authorization, or approval of any entity; provided however, that nothing herein shall effect a release of the obligations of the Debtors or of any Released Party (as applicable) under the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan or the Confirmation Order, regardless of the amount and/or timing of the Distribution(s), if any, received by a Creditor under the Plan. (b) Release by Holders of Claims. On the Effective Date, for good and valuable consideration, (a) the holders of Claims against the Debtors, regardless of voting or opting in or out of this Section 11.6(b), but only to the extent permissible under applicable law; and (b) the holders of Claims against the Debtors who (i) do not vote to acceptreject the Plan or (ii) abstain from voting and do not elect to opt-out of the releases set forth in this Section 11.6(b) of the Plan by checking the appropriate box on their respective Ballot(s) (collectively, Creditor Releasing Parties), will be deemed to completely, conclusively, absolutely, unconditionally, irrevocably, and forever release the Released Parties, their successors, heirs and assigns and their respective property and interests in property, from any and all Claims, Equity Interests, liens, encumbrances, obligations, damages, demands, debts, suits, actions, Causes of Action, judgments, liabilities, or rights whatsoever, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, admiralty, equity, or otherwise, which the Creditor Releasing Parties ever had, now has or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the Effective Date, including without limitation any Claims that are based in whole or in part upon any act, omission, transaction, agreement, event, or occurrence taking place on or prior to the Effective Date in any way relating to the Debtors, the Chapter 11 Cases, the property of the Debtors, the business or contractual arrangements with any Debtor, the formulation, preparation, negotiation, dissemination, 51
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 58 of 71 implementation, administration, confirmation, or consummation of the Plan or any other release or settlement created, modified, amended, terminated, or entered into in connection with the Plan, the restructuring of any Claims against, and Equity Interests in, the Debtors, the property to be Distributed under the Plan, or any other act or omission in connection with these Chapter 11 Cases, without further notice to or action by the Bankruptcy Court, or act or action under applicable law, regulation, order, or rule, or the vote, consent, authorization, or approval of any entity; provided however, that nothing herein shall effect a release of the obligations of the Debtors or of any Released Party (as applicable) under the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan or the Confirmation Order, regardless of the amount and/or timing of the Distribution(s), if any, received by a Creditor under the Plan. Section 11.7 Injunction. Except as otherwise provided in the Plan, on the Effective Date, all holders of Claims against, and Equity Interests in, the Debtors, and the Released Parties shall be precluded and enjoined from asserting against the Released Parties, their successors and assigns, or any of their assets or property, whether in the possession of the Debtors or a transferee of such property under the Plan, any and all Claims, Equity Interests, liens, encumbrances, obligations, damages, demands, debts, suits, Causes of Action, judgments, liabilities or rights whatsoever that are released pursuant to the Plan or the Confirmation Order. Section 11.8 Exclusions and Limitations on Exculpation, Indemnification, and Releases. Except as otherwise provided in Section 13.3 of the Plan, nothing in the Confirmation Order or the Plan shall effect a release of any Claim by the United States government or any of its agencies or any state and local authority whatsoever, including, without limitation, any Claim arising under the Internal Revenue Code, the environmental laws or any criminal laws of the United States or any state and local authority against the Debtors, the Debtors Estates, or the Released Parties, nor shall anything in the Confirmation Order or the Plan enjoin the United States or any state or local authority from bringing any Claim, suit, action or other proceedings against the Debtors, the Debtors Estates, or the Released Parties for any liability whatever, including, without limitation, any Claim, suit or action arising under the Internal Revenue Code, the environmental laws or any criminal laws of the United States or any state or local authority, nor shall anything in the Confirmation Order or the Plan exculpate any party from any liability to the United States government or any of its agencies or any state and local authority whatsoever, including any liabilities arising under the Internal Revenue Code, the environmental laws or any criminal laws of the United States or any state and local authority against the Debtors, the Debtors Estates, or the Released Parties. Section 11.9 Dissolution of Creditors Committee. On the Effective Date, the Creditors Committee shall have no further powers or duties and shall be dissolved for all purposes, except with respect to: (i) obligations arising under confidentiality agreements, joint interest agreements, and protective orders entered during the Bankruptcy Case, which shall remain in full force and effect according to their terms; (ii) applications for and/or objections to Professional Claims; (iii) requests for compensation and reimbursement of expenses pursuant to section 503(b) of the Bankruptcy Code for making a substantial contribution in any of these Chapter 11 Cases; and (iv) any motions or other actions seeking enforcement or implementation of the provisions of this Plan or the Confirmation Order. The professionals retained by the Creditors Committee and the respective members thereof 52
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 59 of 71 shall not be entitled to compensation and reimbursement of expenses for services rendered in that capacity after the Effective Date, except for services rendered in connection with applications for allowance of compensation and reimbursement of expenses pending on the Effective Date or filed after the Effective Date, which shall be promptly paid by the Plan Administrator from the Professional Claims Reserve upon rendition of appropriate invoices. Section 11.10 Post-Effective Date Services By Debtors Professionals. The professionals retained by the Debtors shall not be entitled to compensation and reimbursement of expenses for services rendered in that capacity after the Effective Date, except for services rendered in connection with applications for allowance of compensation and reimbursement of expenses pending on the Effective Date or filed after the Effective Date, which shall be promptly paid by the Plan Administrator from the Professional Claims Reserve upon rendition of appropriate invoices. ARTICLE XII RETENTION OF JURISDICTION Section 12.1 Retention of Jurisdiction. On and after the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction, to the fullest extent permissible under law, over all matters arising in, arising under, or related to the Chapter 11 Cases and the Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and for, among other things, the following purposes: (a) To enforce the terms of, and to hear and determine any motions, adversary proceedings, applications, contested matters, or other litigated matters relating to, the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan and/or the Confirmation Order; (b) To hear and determine any applications for the rejection of executory contracts or unexpired leases and the allowance of Claims resulting therefrom; (c) To hear and determine any motions, adversary proceedings, applications, contested matters, and other litigated matters pending on, or commenced by the Plan Administrator after, the Effective Date; (d) (e) provided herein; To determine and resolve controversies relating to the Plan Administrator; To ensure that Distributions to holders of Allowed Claims are accomplished as
(f) To hear and determine all matters related to the allowance, disallowance, liquidation, classification, priority, compromise, estimation or payment of any Claims or Equity Interests, including any objections to, or requests for estimation of, Claims or Equity Interests, whether filed, asserted, or made before or after the Confirmation Date;
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 60 of 71 (g) To enter, implement or enforce such orders as may be appropriate in the event that the Confirmation Order is for any reason stayed, reversed, revoked, modified or vacated; (h) To issue injunctions, enter and implement other orders, and take such other actions as may be necessary or appropriate to restrain interference by any entity with the consummation, implementation or enforcement of the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, the Plan, the Confirmation Order or any other order of the Bankruptcy Court; (i) To hear and determine any applications to modify the Plan to cure any defect or omission or reconcile any inconsistency in the Plan, or any order of the Bankruptcy Court, including the Confirmation Order, in such a manner as may be necessary to carry out the purposes and effects thereof; (j) To hear and determine any applications for compensation for services rendered and reimbursement of expenses incurred to the extent authorized to be paid or reimbursed under the Plan or the Bankruptcy Code; (k) To hear and determine disputes arising in connection with the interpretation, implementation or enforcement of the Macquarie Plan Term Sheet, Scotiabank Plan Term Sheet, the Plan, the Confirmation Order, any transactions, Distributions or payments contemplated hereby, or any agreement, instrument, or other document governing or relating to any of the foregoing; (l) To hear and determine disputes arising in connection with statements for fees and expenses incurred by counsel or any other professional retained by the Plan Administrator; (m) To take any actions and issue such orders as may be necessary to construe, enforce, implement, execute, and consummate the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, or the Plan, or to maintain the integrity thereof following consummation; (n) To determine any other matters that may arise in connection with or are related to the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, the Plan, the Confirmation Order, or any other contract, instrument, release or other agreement or document related to the Plan; (o) To hear and determine all disputes involving the existence, nature or scope of the injunctions and releases granted under the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, the Plan, the Confirmation Order, or the Bankruptcy Code; (p) To hear and determine any matters concerning state, local, or federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code (including any requests for expedited determinations under section 505(b) of the Bankruptcy Code); (q) To enforce all orders, judgments, injunctions, releases, exculpations, indemnifications, and rulings entered in connection with the Chapter 11 Cases;
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 61 of 71 (r) To consider and act on the compromise and settlement of any Claim, Equity Interest, Cause of Action, or defense by, on behalf of, or against the Estates, to the extent that Bankruptcy Court approval is required; (s) To hear and determine any rights, Claims, Equity Interests, or Causes of Action held by or accruing to the Estates and all related reserves pursuant to the Macquarie Plan Term Sheet, the Scotiabank Plan Term Sheet, Order, the Plan, the Confirmation Order, the Bankruptcy Code, or any federal or state law; (t) To resolve any matters relating to the sale of property of the Debtors Estates;
(u) To hear and determine any other matters related hereto and not inconsistent with the Bankruptcy Code and title 28 of the United States Code; (v) To recover all assets of any of the Debtors and property of the applicable Debtors Estate, wherever located, and to hear and determine all adversary proceedings or other litigations related thereto; and (w) To enter a final decree closing the Chapter 11 Cases.
For the avoidance of doubt, nothing in this Section 12.1 of the Plan or any other provision of the Plan shall be construed to expand or limit the Bankruptcy Courts jurisdiction beyond that permitted under applicable law. ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.1 Payment of Statutory Fees. All fees payable pursuant to section 1930 of title 28 of the United States Code that are due and payable as of the Effective Date shall be paid by the Plan Administrator on or as soon as reasonably may be practicable after the Effective Date. All such fees that become due and payable after the Effective Date shall be paid by the Plan Administrator when such fees become due and payable. Section 13.2 Substantial Consummation. On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code. Section 13.3 Exemption from Transfer Taxes. Pursuant to section 1146(a) of the Bankruptcy Code, (a) the issuance, transfer or exchange of any security under, in furtherance of, or in connection with, the Plan or (b) the assignment or surrender of any lease or sublease, or the delivery of any instrument of transfer under, in furtherance of, or in connection with, the Plan, including, without limitation, any deed, asset purchase agreement, bill of sale, assignment, mortgage, deed of trust or similar document executed in connection with any disposition of assets contemplated by the Plan (including real and personal property), shall not be subject to any stamp tax, real estate transfer tax, recording tax, sales tax, personal property tax, mortgage tax, use tax, or other similar tax, or any 55
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 62 of 71 Uniform Commercial Code filing or recording fee or similar or other government assessment. The Confirmation Order shall direct the appropriate state or local government officials or agents to forgo the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment. Section 13.4 Determination of Tax Liabilities. The Plan Administrator (as applicable) shall, pursuant to section 505(b) of the Bankruptcy Code, have the right to request an expedited determination of any unpaid liability of any of or all the Debtors Estates for any tax incurred during the administration of the Chapter 11 Cases. As of the Effective Date, the Plan Administrator shall be responsible for preparing and filing any tax forms or returns on behalf of the Debtors or the Debtors Estates; provided, however, that the Plan Administrator shall not be responsible for preparing or filing any tax forms for holders of Equity Interests in any of or all the Debtors (which Equity Interests shall be canceled pursuant to the Plan), but shall provide such holders with any information reasonably required to prepare such forms. Section 13.5 Withholding and Reporting Requirements. All Distributions under the Plan shall be subject to federal, state, local, and foreign withholding taxes or other amounts required to be withheld under any applicable law and such amounts shall be deducted and withheld from any Distributions made pursuant to the Plan. Any amount so deducted and withheld shall be deemed paid to the holders of Allowed Claims. All holders of Allowed Claims shall be required to provide to the Plan Administrator any information necessary to effectuate the withholding of such taxes. Notwithstanding the foregoing, each holder of an Allowed Claim that is to receive a Distribution shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any governmental unit on account of such Distribution. The Plan Administrator shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including, without limitation, establishing any mechanisms the Plan Administrator believes is reasonable and appropriate, including, without limitation, requiring holders of Claims to submit appropriate tax withholding certifications. Section 13.6 Modification and Amendment. Debtors may, with the prior written consent of Macquarie and the Creditors Committee, alter, amend, modify, or supplement the Plan pursuant to section 1127(a) of the Bankruptcy Code at any time prior to the Confirmation Date. After the Confirmation Date and prior to substantial consummation of the Plan, Debtors may, with the prior written consent of Macquarie and the Creditors Committee, and upon order of the Bankruptcy Court, amend or modify the Plan in accordance with section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan as may be necessary to carry out the purpose and effects of the Plan. A holder of a Claim against the Debtors that has accepted the Plan shall be deemed to have accepted the Plan as altered, amended, or modified if the proposed alteration, amendment, or modification does not materially and adversely change the treatment of the Claim of such holder. Section 13.7 Severability. In the event that prior to the entry of the Confirmation Order, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Debtors, and with the prior written consent of Macquarie, shall 56
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 63 of 71 have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and in no way will be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms. If any separate Plan is unconfirmable, the Debtors, with the prior written consent of the Lenders and the Creditors Committee, shall have the right to sever that Plan and proceed with the confirmation of all other Plans. Section 13.8 Notice of Entry of Confirmation Order and Relevant Dates. As soon as may reasonably be practicable after entry of the Confirmation Order, Debtors shall, as directed by the Bankruptcy Court, publish and serve on all known parties in interest and holders of Claims against, and Equity Interests in, the Debtors, notice of the entry of the Confirmation Order and all relevant deadlines and dates under the Plan, including, without limitation, the Administrative Expense Claim Bar Date and the deadline for filing Rejection Damage Claims. Section 13.9 Courts of Competent Jurisdiction. In the event that the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter arising in, arising under, or related to the Chapter 11 Cases or the Plan, such abstention, refusal, or failure of jurisdiction shall have no effect upon and shall not control, prohibit, or limit the exercise of jurisdiction by any other court having competent jurisdiction with respect to such matter. Section 13.10 No Admissions. As to contested matters, adversary proceedings, and other Causes of Action, the Plan shall not constitute or be construed as an admission of any fact or liability, stipulation, or waiver, but rather as a statement made in settlement negotiations. The Plan shall not be construed to be conclusive advice on the tax and other legal effects of the Plan as to holders of Claims against, and Equity Interests in, the Debtors. Section 13.11 Currency. Where a Claim has been denominated in foreign currency on a proof of claim, the Allowed amount of such Claim shall be calculated in currency of the United States of America based upon the conversion rate in place as of the Petition Date and in accordance with section 502(b) of the Bankruptcy Code. Section 13.12 Governing Law. Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit, schedule, or supplement hereto provides otherwise, the rights, duties, and obligations arising under the Plan and any agreements, documents and instruments executed in connection with the Plan (except as otherwise expressly provided in such agreements, documents, and instruments) shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws of such jurisdiction.
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 64 of 71 Section 13.13 Schedules, Exhibits and Supplements. All schedules, exhibits, and supplements to the Plan are incorporated into and are a part of the Plan as if set forth in full herein. Copies of the schedules, exhibits, and supplements to the Plan may be accessed on the docket electronically maintained by the clerk of the Bankruptcy Court or inspected in the office of the clerk of the Bankruptcy Court during normal business hours. Section 13.14 Notices. Any notice required or permitted to be provided under the Plan to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided in the Plan, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows: STEVENS & LEE, P.C. Nicholas F. Kajon John D. Demmy Constantine D. Pourakis 485 Madison Avenue, 20th Floor New York, New York 10022 Telephone: (212) 319-8500 Facsimile: (212) 319-8505 nfk@stevenslee.com jdd@stevenslee.com cp@stevenslee.com Section 13.15 Counterparts. This Plan may be executed in one or more counterparts, which when taken together, shall constitute a single instrument. Dated: New York, New York November 6,December 17, 2012 B+H OCEAN CARRIERS LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory OBO HOLDINGS LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory BHOBO ONE LTD. By: /s/ Michael S. Hudner Name: 58
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 65 of 71 Title: Authorized Signatory BHOBO TWO LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 66 of 71 BHOBO THREE LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory RMJ OBO SHIPPING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory SEASAK TRADING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory SAKONNET SHIPPING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory SEAPOWET SHIPPING LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory STRAITS OFFSHORE LTD. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory PRODUCT TRANSPORT CORP. By: /s/ Michael S. Hudner Name: Title: Authorized Signatory
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 67 of 71 EXHIBIT A Macquarie Plan Term Sheet
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 68 of 71 EXHIBIT B Scotiabank Plan Term Sheet
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 69 of 71 EXHIBIT C Form of Plan Administrator Agreement
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 70 of 71 EXHIBIT D Creditors Committee Support Letter
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12-12356-scc Doc 327-5 Filed 12/17/12 Entered 12/17/12 16:39:10 Second Amended Joint Chapter 11 Plan - Redline Version Pg 71 of 71 Document comparison by Workshare Compare on Monday, December 17, 2012 3:01:26 PM Input: Document 1 ID Description Document 2 ID Description Rendering set Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions Deletions Moved from Moved to Style change Format changed Total changes 184 290 0 0 0 0 474 interwovenSite://RDIMAN01/SL1/1198387/3 #1198387v3<SL1> - B+H - Amended Plan of Reorganization interwovenSite://RDIMAN01/SL1/1201546/5 #1201546v5<SL1> - B+H - Second Amended Plan of Reorganization Standard with color

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B+H Ocean 2nd Amended Plan

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12-12356-scc

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Dated: December 17, 2012

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ARTICLE IV CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS ................................27

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ARTICLE VI PROVISIONS GOVERNING DISTRIBUTIONS.......................................................39

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Authority to Act. . ............................................................................................48

ARTICLE IX EXECUTORY CONTRACTS AND UNEXPIRED LEASES ....................................50

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