Evergreen oil plan support agreement
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    Evergreen oil plan support agreement Evergreen oil plan support agreement Document Transcript

    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 1 of 92 Desc DAVID L. NEALE (SBN 141225) JULIET Y. OH (SBN 211414) LINDSEY L. SMITH (SBN 265401) LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234 Facsimile: (310) 229-1244 Email: dln@lnbyb.com, jyo@lnbyb.com Attorneys for Chapter 11 Debtors and Debtors in Possession UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION In re EVERGREEN OIL, INC., Debtor, Jointly Administered Debtors And Debtors-in-Possession Affects: Evergreen Oil, Inc., Only Evergreen Environmental Holdings, Inc., Only All Debtors ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:13-bk-13163-SC Jointly Administered With: Case No. 8:13-bk-13168 Chapter 11 NOTICE OF MOTION AND MOTION PURSUANT TO SECTIONS 105(a), 363(b) AND 1125(b) OF THE BANKRUPTCY CODE AND BANKRUPTCY RULE 6004 FOR AN ORDER AUTHORIZING THE DEBTORS AND OTHER PARTIES THERETO TO ENTER INTO PLAN SUPPORT AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF WILLIAM SCOTTINI IN SUPPORT THEREOF Date: July 11, 2013 Time: 11:00 a.m. Place: Courtroom “5C” 411 West Fourth Street Santa Ana, CA 92701 1
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 2 of 92 Desc PLEASE TAKE NOTICE that, pursuant to Sections 105(a), 363(b) and 1125(b) of the Bankruptcy Code and Rule 6004 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), Evergreen Oil, Inc. (“EOI”) and Evergreen Environmental Holdings, Inc. (“EEHI,” and together with EOI, the “Debtors”), the debtors and debtors in possession in the above-captioned, jointly-administered Chapter 11 bankruptcy cases, hereby submit this motion (the “Motion”) for the entry of an order authorizing the Debtors and other parties thereto to enter into that certain Plan Support Agreement (the “Plan Agreement”) in substantially the form attached as Exhibit “1” to the Declaration of William Scottini annexed hereto (the “Scottini Declaration”). The complete bases of the Motion are set forth in the Memorandum of Points and Authorities annexed hereto. Briefly, the Plan Agreement provides for Clean Harbors, Inc. or its designee (“Clean Harbors”) to sponsor the Joint Plan Of Reorganization Dated June 19, 2013 (the “Plan”) filed by the Debtors to, among other things, consummate the sale of EEHI’s stock in EOI (the “Evergreen Stock”) to Clean Harbors or to a successful overbidder (resulting effectively in the sale of EOI’s business as a going concern) and implement the financial restructuring of the Debtors’ indebtedness and other obligations in accordance with the terms set forth in the Plan Agreement. In conjunction with the negotiation of the Plan Agreement, the Debtors and Clean Harbors have been negotiating a form of Stock Purchase Agreement (the “SPA”), which will set forth the terms and conditions under which Clean Harbors is to acquire the Evergreen Stock. The cash and other consideration to be paid by Clean Harbors (or a successful overbidder) for the acquisition of the Evergreen Stock (the “Buyer Payment”) shall be used to pay EOI’s creditors in accordance with the terms of the Plan. As evidenced by the Plan Agreement (and the Plan attached as an exhibit thereto), the Debtors, Clean Harbors and Guggenheim Corporate Funding, LLC, individually and as administrative agent for the Lenders1 (“Guggenheim”) have agreed upon the material terms the Plan. 1 All capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Plan Agreement. 2
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 3 of 92 Desc As reflected by the Plan Agreement, the parties are committed to working in good faith to, among other things, promptly negotiate the SPA, the Plan, the disclosure statement describing the Plan (the “Disclosure Statement”) and other agreements, documents, exhibits annexes, schedules and orders of the Bankruptcy Court related thereto, use their commercially reasonable efforts to obtain Bankruptcy Court approval of the Disclosure Statement and Plan as promptly as possible, and implement the Plan and the terms thereof on the Effective Date of the Plan, which shall occur on or before the Outside Date set forth in the Plan Agreement (i.e., August 30, 2013, unless such date is extended by written agreement of each of Clean Harbors and Guggenheim). The Plan Agreement also describes certain of the bidding procedures that will govern the tendering and consideration of competing bids to serve as the sponsor for the Plan (the “Bidding Procedures”). The Plan Agreement requires that the Debtors file a separate motion, in form and substance reasonably satisfactory to each of Clean Harbors and Guggenheim in each of their respective sole discretion, seeking the entry of an order approving the Bidding Procedures by June 19, 2013, and obtain the entry of an order approving the Bidding Procedures by no later than July 11, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their respective sole discretion).2 Pursuant to the Plan Agreement, the Debtors are also required to obtain entry of a Court order approving the Plan Agreement on or before July 11, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their respective sole discretion). Furthermore, the Plan Agreement obligates the Debtors to obtain an order approving the Disclosure Statement on or before July 11, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their respective sole discretion) as well as an order confirming the Plan on or before August 15, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their respective sole discretion). 2 In Concurrently herewith, the Debtors have filed a motion seeking Court approval of the Bidding Procedures, which motion is set for hearing on July 11, 2013 at 11:00 a.m. (the same date and time as the hearing on this Motion). 3
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 4 of 92 Desc accordance with the deadlines set forth in the Plan Agreement, the Debtors have filed (i) this Motion for approval of the Plan Agreement so that it may be heard on July 11, 2013 at 11:00 a.m., (ii) a motion seeking the entry of an order approving the Bidding Procedures, which motion is also set to be heard on July 11, 2013, (iii) the Disclosure Statement and Plan, and (iv) a motion seeking approval of the Disclosure Statement (the “Disclosure Statement Motion”), together with an ex parte application for an order shortening time on notice for hearing on the Disclosure Statement Motion, so that the Disclosure Statement Motion might be heard on July 11, 2013 at 11:00 a.m. The Motion is based upon 11 U.S.C. §§ 105(a), 363(b) and 1125(b) and Bankruptcy Rule 6004, and is based further upon this Notice and Motion, the attached Memorandum of Points and Authorities and the Scottini Declaration annexed thereto, the entire record in the Debtors’ cases, the statements, arguments and representations of counsel to be made at the hearing on the Motion, and any other evidence properly presented to the Court at or prior to the hearing on the Motion. WHEREFORE, the Debtors respectfully request that the Court enter an order: (1) finding that notice of the Motion was adequate and appropriate under the circumstances; (2) granting the Motion in its entirety; (3) approving the Plan Agreement in substantially the form attached as Exhibit “1” to the Scottini Declaration annexed hereto; (4) authorizing and directing the Debtors to take all steps necessary to consummate the terms and conditions of the Plan Agreement; and /// /// /// /// /// 4
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 (5) Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 5 of 92 Desc granting such other and further relief as may be necessary or appropriate under the circumstances. Dated: June 19, 2013 EVERGREEN OIL, INC., et al. By: 5 /s/ Lindsey L. Smith DAVID L. NEALE JULIET Y. OH LINDSEY L. SMITH LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. Attorneys for Chapter 11 Debtors and Debtors in Possession
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 6 of 92 Desc MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION3 After an extensive marketing and sale process, which began even before the bankruptcy filings by Evergreen Oil, Inc. (“EOI”) and Evergreen Environmental Holdings, Inc. (“EEHI,” and together with EOI, the “Debtors”), the debtors and debtors in possession herein, to solicit bids for the sale of EEHI’s stock in EOI, or, subject to certain conditions, all or substantially all of EOI’s operating assets (collectively, the “Assets”), the Debtors have designated Clean Harbors, Inc. (“Clean Harbors”) to act as the “stalking horse bidder” for the Assets, subject to overbid and Bankruptcy Court approval. The Debtors and Clean Harbors have elected to implement the sale of the Assets through a sale of EEHI’s stock in EOI (the “Evergreen Stock”) pursuant to the Debtors’ Joint Plan Of Reorganization Dated June 19, 2013 (the “Plan”),4 with Clean Harbors (or a successful overbidder) acting as the sponsor of the Plan. The Debtors and Clean Harbors have agreed to seek Court approval of certain bidding procedures (the “Bidding Procedures”) that will establish the rules and procedures for other interested parties to tender competing bids to serve as the sponsor for the Plan. In conjunction with the negotiation of a form of Stock Purchase Agreement (the “SPA”), which will set forth the terms and conditions under which Clean Harbors will acquire the Evergreen Stock, the Debtors, Clean Harbors, and Guggenheim Corporate Funding, LLC, individually and as administrative agent for the Lenders (“Guggenheim”) negotiated the Plan Agreement, which provides for Clean Harbors to sponsor the Plan filed by the Debtors to, among other things, consummate the sale of the Evergreen Stock to Clean Harbors (in accordance with the terms of the SPA) and implement the financial restructuring of the Debtors’ indebtedness and other obligations in accordance with the terms set forth in the Plan Agreement and Plan. A true 3 All capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Plan Support Agreement (the “Plan Agreement”) attached as Exhibit “1” to the Declaration of William Scottini annexed hereto (the “Scottini Declaration”). 4 The Plan is attached in substantial form as Exhibit “A” to the Plan Agreement, which is attached as Exhibit “1” to the Scottini Declaration. 6
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 7 of 92 Desc and correct copy of the Plan Agreement is attached in substantial form as Exhibit “1” to the Scottini Declaration annexed hereto. The cash and other consideration paid by Clean Harbors (or a successful overbidder) for the acquisition of the Evergreen Stock (the “Buyer Payment”) shall be used to pay allowed costs of sale and to satisfy the allowed claims of creditors, including the Lenders, in accordance with the terms of the Plan. As evidenced by the Plan Agreement (and the Plan attached as an exhibit thereto), the Debtors, Clean Harbors and Guggenheim have agreed upon the material terms the Plan. The Debtors, with their counsel and investment banker, have conducted an exhaustive analysis of plan and sale alternatives, and concluded that the Plan Agreement, which provides the basis upon which the Debtors will consummate a sale of the Evergreen Stock and proceed with a plan of reorganization that the Debtors believe will yield the best possible result for creditors, is in the overwhelming best interests of the Debtors and their estates. II. 1. STATEMENT OF FACTS The Debtors filed voluntary petitions under Chapter 11 of 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) on April 9, 2013 (the “Petition Date”). EOI continues to operate its business, and the Debtors continue to manage their financial affairs and operate their bankruptcy estates as debtors in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. 2. EOI was founded in 1984 to provide clean and responsible used oil collection for service stations. EOI has grown to lead the industry in developing safe and efficient used oil recovery operations while providing other environmental services as a one-stop shop for hazardous waste management and disposal in the State of California. 3. Headquartered in Irvine, California, with facilities located in Newark and Carson, California, EOI is one of the largest waste oil collectors in California, and the only oil re-refining operation in California. EOI is also a major provider of hazardous waste services, offering customers across California a full range of environmental services to handle all of their waste management needs. All of EOI’s hazardous waste environmental services are geared towards 7
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 8 of 92 Desc recycling and reuse of materials collected. EOI purchases and recycles oil by using a re-refining process developed by EOI which allows EOI to reclaim three quarts of every gallon that EOI treats. Specifically, EOI collects, transports and recycles the following: (1) used motor oil, for rerefining into lube oil; (2) used oil filters, for recycling; (3) oily water, for treatment and safe disposal; (4) used antifreeze, sent to offsite recyclers for re-use; and (5) other hazardous and nonhazardous waste, sent to offsite authorized disposal sites. 4. EEHI owns 100% of the stock in EOI. EEHI is not an operating company and solely exists for the purpose of owning 100% of the stock in EOI. EEHI has no creditors or other assets apart from its stock in EOI. 5. Prior to the Petition Date, on or about March 29, 2011, EOI experienced a fire at its facility located at 6880 Smith Avenue, Newark, California (the “Newark Facility”), which severely damaged some of EOI’s operating equipment at the Newark Facility. Due to the fire and for other reasons, EOI’s cash flow was hampered making it difficult for EOI to operate. In order to resolve EOI’s cash flow predicament, and to maximize the value of EOI’s business during the year prior to the bankruptcy filing, the Debtors determined to market themselves for sale to various interested parties. As of September 29, 2012, EOI had repaired the damage to its operating equipment at the Newark Facility, and EOI has continued operating in the ordinary course since such date. Moreover, the Debtors’ marketing efforts resulted in expressions of interest by several parties regarding a potential transaction that would result in the sale of EOI’s business as a going concern. However, the Debtors were forced to file for bankruptcy before a suitable purchase and sale transaction could be finalized. 6. On April 9, 2013, the Debtors filed their Motion for Order Establishing Sale Procedures for Sale of Substantially all of Debtors’ Assets; Memorandum of Points and Authorities; Declaration of William Scottini in Support Thereof [Doc. No. 15] (the “Sale Procedures Motion”), seeking approval of certain procedures by which the Debtors intended to sell the Assets. The Bankruptcy Court entered an order granting the Sale Procedures Motion on April 24, 2013 [Doc No. 71] (the “Sale Procedures Order”). 8
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 7. Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 9 of 92 Desc Pursuant to the Sale Procedures Order, the Debtors and their exclusive investment banker, Cappello Capital Corp. (“Cappello”), initiated a marketing process for the Assets that was to result in (i) the submission of initial indications of interest on or before May 7, 2013, (ii) the submission of final bids on or before May 30, 2013, (iii) a review of the final bids by the Debtors and Cappello to (a) determine which bidders would be qualified to participate in an auction for the sale of the Assets, and (b) if the Debtors and Cappello deemed it appropriate to do so, determine which bidder had submitted the highest and best bid; (iv) and motions filed by the Debtors, on or before June 1, 2013, seeking (a) approval of bidding procedures to be utilized in connection with an auction, and (b) seeking approval of the sale of the Assets to the highest bidder at auction. 8. The failure to meet any of the deadlines set forth in the Sale Procedures Order (without the consent of Guggenheim and the Lenders) would constitute an event of default under both the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c), 364(d)(1), and 364(e), and (B) Utilize Cash Collateral of Prepetition Secured Entities Pursuant to 11 U.S.C. § 363; (II) Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11 U.S.C. §§ 361, 362, 363, and 364; and (III) Granting Related Relief [Doc. No. 102] (the “Final DIP Order”) and the DIP Loan Agreement (as defined in the Final DIP Order). The Debtors were unable to meet the deadlines set forth in the Sale Procedures Order, resulting in an event of default under the Final DIP Order and the DIP Loan Agreement. However, Guggenheim has agreed to waive such default upon the filing of this Motion for approval of the Plan Agreement on or before June 19, 2013. 9. Since the Petition Date (and even prior thereto), the Debtors and Cappello have worked diligently to market and sell the Assets to a qualified buyer, free and clear of all liens and claims. Following an extensive marketing and sale process, as contemplated by the Sale Procedures Order, and after engaging in extensive discussions with parties submitting bids for the Assets, the Debtors and Cappello have determined that Clean Harbors should be designated to act as the “stalking horse bidder” for the Assets, subject to Bankruptcy Court approval. 9
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 10. Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 10 of 92 Desc After engaging in discussions regarding the structure by which the sale of the Assets would best be accomplished, the Debtors and Clean Harbors have elected to seek approval of the sale of the Evergreen Stock to Clean Harbors (or to a successful overbidder) as part of the Plan, with Clean Harbors (or a successful overbidder) acting as the sponsor of the Plan. The Buyer Payment to be paid by Clean Harbors (or a successful overbidder) for the acquisition of the Evergreen Stock shall be used to pay EOI’s creditors in accordance with the terms of the Plan. The Debtors and Clean Harbors have agreed to implement the Bidding Procedures, subject to Bankruptcy Court approval, to govern the auction designed to maximize the value of the estates, by facilitating the submission of competing bids by other interested parties to serve as the sponsor for the Plan. 11. As noted above, in conjunction with the negotiation of the SPA, which will set forth the terms and conditions under which Clean Harbors will acquire the Evergreen Stock, the Debtors and Clean Harbors negotiated the Plan Agreement, in substantially the form attached as Exhibit “1” to the Scottini Declaration annexed hereto, which sets forth the terms and conditions under which the Debtors will file, and Clean Harbors will sponsor, the Plan. 12. On June 19, 2013, concurrently with this Motion, the Debtors filed the Plan, which the Debtors believe comports with the terms and conditions set forth in the Plan Agreement, as well as a disclosure statement describing the Plan (the “Disclosure Statement”). A true and correct copy of the Plan is attached as Exhibit “A” to the Plan Agreement attached as Exhibit “1” to the Scottini Declaration annexed hereto. 13. As reflected by the Plan Agreement5, the parties are committed to working in good faith to, among other things, promptly negotiate the SPA, the Plan, the Disclosure Statement and other agreements, documents, exhibits annexes, schedules and orders of the Court related thereto, use their commercially reasonable efforts to obtain Court approval of the Disclosure Statement and 5 Nothing set forth herein is intended to modify the terms of the Plan Agreement, and in the event of any inconsistency between the description of the Plan Agreement and the Plan Agreement itself, the terms of the Plan Agreement shall control. 10
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 11 of 92 Desc Plan as promptly as possible, and implement the Plan and the terms thereof on or before the Outside Date set forth in the Plan Agreement (i.e., August 30, 2013, unless such date is extended by written agreement of each of Clean Harbors and Guggenheim). 14. The Plan Agreement requires the Debtors to obtain the entry of an order approving the Plan Agreement on or before July 11, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their sole discretion). 15. The Plan Agreement also requires the Debtors to file a separate motion, in form and substance reasonably satisfactory to each of Clean Harbors and Guggenheim, seeking the entry of an order approving the Bidding Procedures (the “Bidding Procedures Motion”) by June 19, 2013, and to obtain the entry of an order granting the Bidding Procedures Motion by no later than July 11, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their sole discretion). Such Bidding Procedures are critical to enhancing the value generated by a sale of the Assets by subjecting Clean Harbors’ stalking horse bid to a competitive auction process designed to yield the highest and best offer for the Debtors’ estates. 16. Finally, the Plan Agreement requires the Debtors to obtain the entry of an order approving the Disclosure Statement on or before July 11, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their sole discretion), and obtain the entry of an order confirming the Plan on or before August 15, 2013 (or such later date as may be acceptable to each of Clean Harbors and Guggenheim in each of their sole discretion). 17. In accordance with the deadlines set forth in the Plan Agreement, on June 19, 2013, the Debtors filed (i) this Motion seeking the entry of an order approving the terms of, and authorizing the Debtors to enter into, the Plan Agreement, which motion is set to be heard on July 11, 2013 at 11:00 a.m. (ii) the Bidding Procedures Motion, which motion is set to be heard on July 11, 2013 at 11:00 a.m., (iii) the Plan and Disclosure Statement, and (iv) a motion seeking approval of the Disclosure Statement (the “Disclosure Statement Motion”), together with an ex parte application for an order shortening time on notice for hearing on the Disclosure Statement Motion, so that the Disclosure Statement Motion might be heard on July 11, 2013 at 11:00 a.m. 11
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 12 of 92 III. A. Desc DISCUSSION The Plan Agreement Reflects The Sound Business Judgment Of The Debtors, Is Fair, Reasonable And Beneficial To The Estates, And Should Be Approved. Section 105(a) of the Bankruptcy Code provides, in relevant part, that “[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a). Section 363(b)(1) of the Bankruptcy Code, in turn, provides, in relevant part, that “the trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate . . . .” 11 U.S.C. § 363(b)(1). Courts have required a proposed transaction not in the ordinary course be supported by the sound business judgment of the debtor considered in the context of the facts of each particular case. See, e.g., In re Walter, 83 B.R. 14, 19-20 (9th Cir. B.A.P. 1988) (“… to satisfy [a debtor’s] fiduciary duty to the debtor, creditors and equity holders, there must be some articulated business justification for using, selling, or leasing the property outside the ordinary course of business.... Whether the proffered business justification is sufficient depends on the case.”); In re America West Airlines, Inc., 166 B.R. 908, 911 (Bankr. D. Ariz. 1994) (“When a transaction is out of the ordinary course of business, after notice and a hearing, it falls to the Bankruptcy Court to determine whether to approve the transaction based on the facts and history of the case”); In re Chateaugay Corp., 973 F.2d 141, 145 (2d Cir. 1992) (holding that a good business reason must exist to authorize a use of property outside of the ordinary course under section 363); Committee of Equity Security Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d Cir. 1983) (same); In re Wilde Horse Enterprises, Inc., 136 B.R. 830 (Bankr. C.D. Cal. 1991) (same). Once a debtor articulates a valid business justification under section 363 of the Bankruptcy Code, a presumption arises that the debtor’s decision was made on an informed basis, in good faith, and in the honest belief the action was in the best interest of the company. See Official Comm. Of Subordinated Bondholders v. Integrated Res., Inc., (In re Integrated Res., Inc.), 147 B.R. 650, 656 (S.D.N.Y. 1992). Furthermore, once “the debtor articulates a 12
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 13 of 92 Desc reasonable basis for its business decisions (as distinct from a decision made arbitrarily or capriciously), courts will generally not entertain objections to the debtor’s conduct.” Comm. of Asbestos-Related Litigants v. Johns-Manville Corp (In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr. S.D.N.Y. 1986). The protection of the business judgment rule continues to operate to shield a debtor’s management from judicial second-guessing. See In re Integrated Res. Inc., 147 B.R. at 656; In re Johns-Manville, 60 B.R. at 615-16 (“[T]he Code favors the continued operation of a business by a debtor and a presumption of reasonableness attaches to a debtor’s management decisions.”) Thus, if a debtor’s actions satisfy the business judgment rule, then the transaction in question should be approved under section 363(b)(1) of the Bankruptcy Code. Here, it cannot reasonably be argued that the Debtors’ decision to enter into the Plan Agreement is anything but a sound exercise of their reasonable business judgment. The Plan Agreement paves the way for a rapid and successful exit from bankruptcy, by way of the Plan, which provides for the sale of the Evergreen Stock (resulting effectively in the sale of EOI’s business as a going concern), subject to overbidding through the auction in accordance with the Bidding Procedures, and the liquidation of the assets of the Debtors’ estates remaining after the Plan Effective Date to fund payments to the Debtors’ creditors in accordance with the terms of the Plan. The Plan Agreement provides the basis upon which the Debtors will consummate a sale of the Evergreen Stock and proceed with a plan of reorganization that the Debtors believe will provide the best result possible for creditors in these cases. Moreover, the Debtors believe that the Plan and its terms, as contemplated by the Plan Agreement, will be supported by most, if not all, of the Debtors’ creditors. Accordingly, the Debtors submit that the Plan Agreement is in the best interests of the Debtors’ estates and creditors and should be approved. If, on the other hand, the Plan Agreement is not approved by the Court on or before July 11, 2013, Clean Harbors will be able to terminate the Plan Agreement and withdraw its sponsorship of the Debtors’ Plan. Such a result will effectively place the Debtors back at 13
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 14 of 92 Desc “square one” in the sale process but without the resources that the Debtors had at the outset of these bankruptcy cases to continue operating EOI’s business and preserve the “going concern” value of such business. Given the Debtors’ extremely limited resources, the Debtors may not have the ability to continue operating while they attempt to negotiate a new “stalking horse” bid for the Assets and/or consummate a sale of the Assets, thereby decreasing (potentially drastically) the value which can ultimately be obtained for the Assets. Given the foregoing, the Debtors believe that the approval of the Plan Agreement will provide the Debtors’ creditors with the best possible recovery available under the circumstances. The Debtors submit that their decision to enter into the Plan Agreement is supported by the sound exercise of their reasonable business judgment and should therefore be approved. B. The Plan Agreement Complies With Section 1125 Of The Bankruptcy Code. The Debtors submit that the Plan Agreement complies with the requirements of Section 1125 of the Bankruptcy Code. Section 1125(b) provides, in relevant part, that “[a]n acceptance or rejection of a plan may not be solicited after the commencement of the case under this title ... unless, at the time of or before such solicitation, there is transmitted ... a written disclosure statement approved, after notice and a hearing, by the court as containing adequate information.” 11 U.S.C. § 1125(b). Courts have long recognized that the scope of impermissible postpetition “solicitation” under Section 1125(b) should be interpreted narrowly, and that Section 1125(b) should not be used to inhibit negotiations among the parties in interest. See Century Glove, Inc. v. First American Bank of New York, 860 F.2d 94, 101 (3d Cir. 1988); see also Trans World Airlines, Inc. v. Texaco, Inc. (In re Texaco, Inc.), 81 B.R 813, 814-16 (Bankr. S.D.N.Y. 1988). Accordingly, courts have approved postpetition plan support agreements reached among debtors and their creditors. See, e.g., In re Tronox Inc., Case No. 09-10156 (ALG) (Bankr. S.D.N.Y. Dec. 23, 2009) [Docket No. 1030] (approving postpetition plan support agreement); In re Visteon Corp., Case No. 09-11786 (CSS) (Bankr. D. Del. June 17, 2010) [Docket No. 3427] (same); In re Owens Corning, Case No. 00-03837 (JKF) (Bankr. D. Del. June 29, 2006) 14
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 15 of 92 Desc [Docket No. 18208] (same).6 The Plan Agreement is the product of extensive negotiations among the parties thereto. The Plan Agreement does not dispense, or purport to dispense, with the solicitation and voting requirements of the Bankruptcy Code. In particular, the Plan Agreement does not absolutely commit any of the parties thereto to support or vote for a particular plan of reorganization with no consideration of the disclosures set forth in an approved disclosure statement. The Plan Agreement thus contemplates that the Debtors would file and receive court approval for the Disclosure Statement with respect to the Plan, and that only thereafter, and after review of the approved Disclosure Statement and its attachments, would the parties to the Plan Agreement entitled to vote on the Plan be obligated to exercise their Chapter 11 voting rights. Given that the Plan Agreement is the product of the very plan negotiations that are so critical to the Chapter 11 process and that should, as a policy matter, be strongly encouraged, and given the flexibility afforded to the parties to the Plan Agreement, the Debtors submit that their entry into the Plan Agreement does not constitute a “solicitation” of the votes of any creditor that would violate either the letter or the spirit of section 1125(b) of the Bankruptcy Code. IV. CONCLUSION WHEREFORE, the Debtors respectfully request that the Court enter an order: (1) finding that notice of the Motion was adequate and appropriate under the circumstances; (2) granting the Motion in its entirety; (3) approving the Plan Agreement in substantially the form attached as Exhibit “1” to the Scottini Declaration annexed hereto; (4) authorizing and directing the Debtors to take all steps necessary to consummate the terms and conditions of the Plan Agreement; and 6 The Debtors have not annexed copies of the unreported orders cited herein. Copies of these orders are available upon request to the Debtors’ counsel. 15
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 (5) Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 16 of 92 Desc granting such other and further relief as may be necessary or appropriate under the circumstances. Dated: June 19, 2013 EVERGREEN OIL, INC., et al. By: 16 /s/ Lindsey L. Smith DAVID L. NEALE JULIET Y. OH LINDSEY L. SMITH LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. Attorneys for Chapter 11 Debtors and Debtors in Possession
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 17 of 92 Desc DECLARATION OF WILLIAM SCOTTINI I, William Scottini, hereby declare as follows: 1. I am the Chief Financial Officer of Evergreen Oil, Inc. (“EOI”) and its parent company, Evergreen Environmental Holdings, Inc. (“EEHI,” and together with EOI, the “Debtors”), the debtors and debtors in possession in the Chapter 11 bankruptcy cases herein, and am therefore familiar with the business operations and financial books and records of the Debtors. 2. I submit this declaration in support of the Debtors’ motion (the “Motion”) for the entry of an order authorizing the Debtors and other parties thereto to enter into that certain Plan Support Agreement dated as of June 19, 2013 (including the exhibits attached thereto, the “Plan Agreement”) in substantially the form attached as Exhibit “1” hereto. Any capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Motion. 3. The Debtors filed voluntary petitions under Chapter 11 of 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”) on April 9, 2013 (the “Petition Date”). EOI continues to operate its business, and the Debtors continue to manage their financial affairs and operate their bankruptcy estates as debtors in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. 4. EOI was founded in 1984 to provide clean and responsible used oil collection for service stations. EOI has grown to lead the industry in developing safe and efficient used oil recovery operations while providing other environmental services as a one-stop shop for hazardous waste management and disposal in the State of California. 5. Headquartered in Irvine, California, with facilities located in Newark and Carson, California, EOI is one of the largest waste oil collectors in California, and the only oil re-refining operation in California. EOI is also a major provider of hazardous waste services, offering customers across California a full range of environmental services to handle all of their waste management needs. All of EOI’s hazardous waste environmental services are geared towards recycling and reuse of materials collected. EOI purchases and recycles oil by using a re-refining 17
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 18 of 92 Desc process developed by EOI which allows EOI to reclaim three quarts of every gallon that EOI treats. Specifically, EOI collects, transports and recycles the following: (1) used motor oil, for re-refining into lube oil; (2) used oil filters, for recycling; (3) oily water, for treatment and safe disposal; (4) used antifreeze, sent to offsite recyclers for re-use; and (5) other hazardous and nonhazardous waste, sent to offsite authorized disposal sites. 6. EEHI owns 100% of the stock in EOI. EEHI is not an operating company and solely exists for the purpose of owning 100% of the stock in EOI. EEHI has no other assets apart from its stock in EOI. 7. Prior to the Petition Date, on or about March 29, 2011, EOI experienced a fire at its facility located at 6880 Smith Avenue, Newark, California (the “Newark Facility”), which severely damaged some of EOI’s operating equipment at the Newark Facility. Due to the fire and for other reasons, EOI’s cash flow was hampered making it difficult for EOI to operate. In order to resolve EOI’s cash flow predicament, and to maximize the value of EOI’s business during the year prior to the bankruptcy filing, the Debtors determined to market themselves for sale to various interested parties. As of September 29, 2012, EOI had repaired the damage to its operating equipment at the Newark Facility, and EOI has continued operating in the ordinary course since such date. Moreover, the Debtors’ marketing efforts resulted in expressions of interest by several parties regarding a potential transaction that would result in the sale of EOI’s business as a going concern. However, the Debtors were forced to file for bankruptcy before a suitable purchase and sale transaction could be finalized. 8. On April 9, 2013, the Debtors filed their Motion for Order Establishing Sale Procedures for Sale of Substantially all of Debtors’ Assets; Memorandum of Points and Authorities; Declaration of William Scottini in Support Thereof (the “Sale Procedures Motion”), seeking approval of certain procedures by which the Debtors intended to sell EEHI’s stock in EOI, or, subject to certain conditions, all or substantially all of EOI’s operating assets (collectively, the “Assets”). I am advised and believe that the Bankruptcy Court entered an order granting the Sale Procedures Motion on April 24, 2013 (the “Sale Procedures Order”). 18
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 9. Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 19 of 92 Desc Pursuant to the Sale Procedures Order, the Debtors and their exclusive investment banker, Cappello Capital Corp. (“Cappello”), initiated a marketing process for the Assets that was to result in (i) the submission of initial indications of interest on or before May 7, 2013, (ii) the submission of final bids on or before May 30, 2013, (iii) a review of the final bids by the Debtors and Cappello to (a) determine which bidders would be qualified to participate in an auction for the sale of all or substantially all of the Assets, and (b) if the Debtors and Cappello deemed it appropriate to do so, determine which bidder had submitted the highest and best bid; (iv) and motions filed by the Debtors, on or before June 1, 2013, seeking (a) approval of bidding procedures to be utilized in connection with an auction, and (b) seeking approval of the sale of the Assets to the highest bidder at auction. 10. It is my understanding and belief that the failure to meet any of the deadlines set forth in the Sale Procedures Order (without the consent of Guggenheim and the Lenders) would constitute an event of default under both the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c), 364(d)(1), and 364(e), and (B) Utilize Cash Collateral of Prepetition Secured Entities Pursuant to 11 U.S.C. § 363; (II) Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11 U.S.C. §§ 361, 362, 363, and 364; and (III) Granting Related Relief (the “Final DIP Order”) and the DIP Loan Agreement (as defined in the Final DIP Order). The Debtors were unable to meet the deadlines set forth in the Sale Procedures Order, resulting in an event of default under the Final DIP Order and the DIP Loan Agreement. However, Guggenheim has agreed to waive such default upon the filing of the Motion for approval of the Plan Agreement on or before June 19, 2013. 11. Since the Petition Date (and even prior thereto), the Debtors and Cappello have worked diligently to market and sell the Assets to a qualified buyer, free and clear of all liens and claims. Following an extensive marketing and sale process, as contemplated by the Sale Procedures Order, and after engaging in extensive discussions with parties submitting bids for the Assets, the Debtors and Cappello have determined that Clean Harbors, Inc. (“Clean 19
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 20 of 92 Desc Harbors”) should be designated to act as the “stalking horse bidder” for the Assets, subject to Bankruptcy Court approval. 12. After engaging in discussions regarding the structure by which the sale of the Assets would best be accomplished, the Debtors and Clean Harbors have elected to seek approval of the sale of the Evergreen Stock to Clean Harbors (or to a successful overbidder) as part of the Plan, with Clean Harbors (or a successful overbidder) acting as the sponsor of the Plan. The Buyer Payment to be paid by Clean Harbors (or a successful overbidder) for the acquisition of the Evergreen Stock shall be used to pay EOI’s creditors in accordance with the terms of the Plan. The Debtors and Clean Harbors have agreed to implement the Bidding Procedures, subject to Bankruptcy Court approval, to govern the tendering of competing bids by other interested parties to serve as the sponsor for the Plan. 13. As noted above, in conjunction with the negotiation of the SPA, which will set forth the terms and conditions under which Clean Harbors will acquire the Evergreen Stock, the Debtors and Clean Harbors negotiated the Plan Agreement, in substantially the form attached hereto as Exhibit “1”, which sets forth the terms and conditions under which the Debtors will file, and Clean Harbors will sponsor, the Plan. 14. On June 19, 2013, concurrently with the Motion, the Debtors filed the Plan, which I believe comports with the terms and conditions set forth in the Plan Agreement, as well as a disclosure statement describing the Plan (the “Disclosure Statement”). The Plan is attached in substantial form as Exhibit “A” to the Plan Agreement, which is attached as Exhibit “1” hereto. 15. In accordance with the deadlines set forth in the Plan Agreement, on June 19, 2013, the Debtors filed (i) the Motion seeking the entry of an order approving the terms of, and authorizing the Debtors to enter into, the Plan Agreement, which motion is set to be heard on July 11, 2013 at 11:00 a.m. (ii) a motion seeking the entry of an order approving the Bidding Procedures, which motion is set to be heard on July 11, 2013 at 11:00 a.m., (iii) the Plan and Disclosure Statement, and (iv) a motion seeking approval of the Disclosure Statement (the “Disclosure Statement Motion”), together with an ex parte application for an order shortening 20
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 21 of 92 Desc
    • Case 8:13-bk-13163-SC 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 22 of 92 EXHIBIT “1” [Plan Support Agreement] 22 Desc
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 23 of 92 Desc PLAN SUPPORT AGREEMENT This PLAN SUPPORT AGREEMENT (as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof, this “Agreement”), dated as of June 19, 2013, is entered into by and among Evergreen Environmental Holdings, Inc. (“EEHI”) and Evergreen Oil, Inc. (“EOI”), each as debtor and debtor in possession (collectively, the “Debtors” and each, a “Debtor”) in jointly administered case nos. 8:13-bk-13163-SC and 8:13-bk13168 (together, the “Bankruptcy Case”) pending before the United States Bankruptcy Court for the Central District of California (the “Bankruptcy Court”), Guggenheim Corporate Funding, LLC, individually and as administrative agent for the Lenders (as defined herein below) (“Guggenheim”) and Clean Harbors, Inc., or its designee (“Sponsor”). Each of the Debtors, Guggenheim and Sponsor are referred to herein individually as a “Party”, and collectively as the “Parties”. RECITALS WHEREAS, on April 9, 2013, the Debtors filed their Motion for Order Establishing Sale Procedures for Sale of Substantially all of Debtors’ Assets; Memorandum of Points and Authorities; Declaration of William Scottini in Support Thereof [Doc. No. 15] (the “Sale Procedures Motion”), seeking approval of certain procedures by which the Debtors intended to sell all or substantially all of their assets. The Bankruptcy Court approved the Sale Procedures Motion on April 24, 2013 [Doc No. 71] (the “Sale Procedures Order”). WHEREAS, pursuant to the Sale Procedures Order, the Debtors and Cappello (as defined below) initiated a marketing process that was to result in (i) the submission of initial indications of interest on or before May 7, 2013, (ii) the submission of final bids on or before May 30, 2013, (iii) a review of the final bids by the Debtors and Cappello to (a) determine which bidders would be qualified to participate in an auction for the sale of all or substantially all of the Debtors’ assets, and (b) if the Debtors and Cappello deemed it appropriate to do so, determine which bidder had submitted the highest and best bid; (iv) and motions filed by the Debtors, on or before June 1, 2013, seeking (a) approval of bidding procedures to be utilized in connection with an auction, and (b) seeking approval of the sale of all or substantially all of the Debtors’ assets to the highest bidder at auction. WHEREAS, the failure to meet any of these deadlines constitutes an event of default under both the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c), 364(d)(1), and 364(e), and (B) Utilize Cash Collateral of Prepetition Secured Entities Pursuant to 11 U.S.C. § 363; (II) Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11 U.S.C. §§ 361, 362, 363, and 364; and (III) Granting Related Relief [Doc. No. 102] (the “Final DIP Order”) and the DIP Loan Agreement (as defined in the Final DIP Order). 1
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 24 of 92 Desc WHEREAS, the Debtors have failed to meet the deadline set forth in clause (iv) above, which failure constitutes an Event of Default under the DIP Loan Agreement, which default will be waived by Guggenheim upon the filing of this Agreement on or before June 19, 2013. WHEREAS, based on the review of final bids, the Debtors and Cappello have determined that a sale of EEHI’s stock in EOI through a plan of reorganization, which, among other things, provides for the discharge of all liens, claims, encumbrances and interests against the Debtors or any of their assets or properties (other than EEHI’s interest as sole shareholder of EOI), would maximize the value of the Debtors’ assets for creditors. WHEREAS, prior to the date hereof, representatives of the Parties have discussed the possibility of consummating a financial restructuring of the Debtors’ indebtedness and other obligations (the “Restructuring”) as set forth in this Agreement and to be implemented pursuant to a confirmed chapter 11 plan of reorganization under the Bankruptcy Code, which shall be jointly sponsored by the Debtors and Sponsor and shall be in substantially the form attached hereto as Exhibit A, subject to any changes mutually agreed to by the Debtors, Sponsor and Guggenheim (the “Plan”). WHEREAS, Guggenheim has agreed that it will take certain actions and, assuming the Plan contains terms and conditions consistent with this Agreement, will support confirmation of the Plan. WHEREAS, the Debtors have entered into this Agreement in order to, among other things, describe the terms of the Plan and the proposed Guggenheim Treatment (as defined below) thereunder. WHEREAS, subject to the terms and conditions of this Agreement, the Parties have agreed to support the Restructuring and the Plan. NOW, THEREFORE, in consideration of the premises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 1. Definitions. The following terms shall have the following definitions: “Agreement” has the meaning set forth in the preamble hereof. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§101 et seq., as amended from time to time and as applicable to the Bankruptcy Case. “Bankruptcy Case” has the meaning set forth in the preamble hereof. “Bankruptcy Court” has the meaning set forth in the preamble hereof. “Bidding Procedures” means the bidding procedures, in form and substance reasonably acceptable to each of Sponsor and Guggenheim, that establish the rules and procedures for tendering a competing bid to serve as the sponsor for the Plan. Among other provisions, the Bidding Procedures shall require qualified bidders to (a) submit a written bid (a “Bid”) and 2
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 25 of 92 Desc evidence of their financial ability to perform to the Debtors, Cappello, Guggenheim, Sponsor and the Official Committee of Creditors (the “Committee”) appointed in the Bankruptcy Case no later than ten (10) business days prior to the hearing to consider confirmation of the Plan; (b) bid all cash in an amount equal to at least the sum of (1) the amount necessary to provide the Guggenheim Treatment, (2) the remainder of the Cash Contribution, if any, (3) the Break Up Fee, and (4) at least an additional $1,000,000 in Cash Contribution; (c) submit a Bid that contains no contingencies or conditions other than those set forth herein; (d) submit a Bid that does not contain any condition related to financing or the satisfaction of diligence; (e) submit a Bid that (x) allows for continued bidding to serve as the Plan Sponsor until such time as no further Bids are received by the Debtors, (y) requires any Bids other than the first Bid described in (b), above, to include additional increments of Cash of not less than $1,000,000; and (f) provide for a Plan Effective Date of no later than the Outside Date. “Bidding Procedures Motion” means the motion to be filed by the Debtors in form and substance reasonably satisfactory to each of Sponsor and Guggenheim seeking entry of the Bidding Procedures Order. “Bidding Procedures Order” means the order in form and substance satisfactory to each of Sponsor and Guggenheim entered by the Bankruptcy Court approving the Bidding Procedures. “Break Up Fee” means the fee payable to Sponsor in the event the Debtors accept a Bid from a third party to serve as the sponsor of the Plan, in an amount equal to One Million Five Hundred Thousand Dollars ($1,500,000), subject to adjustment in accordance with the terms of the final negotiated form of the SPA. “Business Day” means any day other than Saturday, Sunday and any day that is a legal holiday or a day on which banking institutions in New York, New York are authorized by law or other governmental action to close. “Cappello” means Cappello Capital Corp. “Cash” means legal tender of the United States or equivalents thereof. “Cash Contribution” means the Cash and other consideration paid by the Sponsor on the Plan Effective Date in order to implement and consummate the terms of the Plan. For purposes of this Agreement, and subject to the receipt by the Debtors of competing Bids, the Cash Contribution shall be Sixty Million Dollars ($60,000,000) plus the sum attributable to the value of the ordinary course trade receivables of the Debtors being acquired by Sponsor (estimated by the Debtors to be approximately $4,500,000), with the amount of the Cash Contribution to be subject to adjustment in accordance with the terms of the final negotiated form of the SPA. “Confirmation Hearing” means the hearing to be held by the Bankruptcy Court regarding confirmation of the Plan, as such hearing may be adjourned or continued from time to time. 3
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 26 of 92 Desc “Confirmation Order” means the order entered by the Bankruptcy Court confirming the Plan, including all exhibits, appendices and related documents, each in form and substance reasonably acceptable to the Parties. “Debtor(s)” has the meaning set forth in the preamble hereof. “Deposit” means the sum of One Million Five Hundred Thousand Dollars ($1,500,000), subject to adjustment in accordance with the terms of the final negotiated form of the SPA, which shall be payable to the Escrow Agent (as defined in the SPA) by the Sponsor upon execution of the SPA by the parties thereto. “Disclosure Statement” means the disclosure statement in respect of the Plan which shall be acceptable in form and substance to the Parties. “EEHI” has the meaning set forth in the preamble hereof. “EOI” has the meaning set forth in the preamble hereof. “Final Order” means (a) an order or judgment of the Bankruptcy Court or any other court of competent jurisdiction as to which the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for reargument or rehearing shall then be pending or as to which any appeal, petition for certiorari, reargue, or rehear shall have been waived in writing in form and substance satisfactory to the Parties, or (b) in the event that an appeal, writ of certiorari, or reargument or rehearing thereof has been sought, no stay pending appeal has been granted, or such order of the Bankruptcy Court or other court of competent jurisdiction shall have been determined by the highest court to which such order was appealed, or certiorari, reargument, or rehearing shall have been denied or resulted in no modification of such order and the time to take any further appeal, petition for certiorari, or move for reargument or rehearing shall have expired. “Final DIP Order” has the meaning set forth in the preamble hereof. “Guggenheim” has the meaning set forth in the preamble hereof. “Guggenheim Claim” means the claim in favor of Guggenheim and the Lenders for an aggregate amount of not less $66,242,734.27, secured by first priority liens and security interests granted to Guggenheim (on behalf of itself and the Lenders) in the Property. “Guggenheim Treatment” means the payment to be made to Guggenheim, on behalf of the Lenders, on the Plan Effective Date and the other terms upon which the Guggenheim Claim against the Debtors shall be satisfied or otherwise treated under the Plan. “Lenders” means, collectively, Guggenheim Private Debt Fund Note Issuer, LLC; DeMenno-Kerdoon; Guggenheim Private Debt Master Fund, LLC; EquiTrust Life Insurance Company; Wake Forest University; and Wilshire Institutional Master Fund SPC – Guggenheim Alpha Segregated Portfolio. 4
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 27 of 92 Desc “Material Adverse Change” means, since the date of this Agreement, any change, effect, event, occurrence, development, circumstance or state of facts occurs which has had or would reasonably be expected to have a materially adverse effect on the business, properties, prospects (financial or otherwise), operations, financial condition or results of operations of the Debtors, taken as a whole, or which would materially impair the Debtors’ ability to perform its obligations under this Agreement or, when executed, the SPA or have a materially adverse effect on or prevent or materially delay the consummation of the transactions contemplated by this Agreement. “Outside Date” means August 30, 2013, unless such date is extended by written agreement of each of Sponsor and Guggenheim. “Parties” has the meaning set forth in the preamble hereof. “Party” has the meaning set forth in the preamble hereof. “Plan” has the meaning set forth in the recitals hereto. “Plan Definitive Documents” has the meaning set forth in section 2 hereto. “Plan Effective Date” means the date on which the Plan becomes effective. “Plan Support Agreement Order” means an order in the form and substance acceptable to the Debtors, Sponsor and Guggenheim that, among other things, (a) memorializes and implements the terms of this Agreement, and (b) requires the Debtors to file a Plan in substantially the form attached as Exhibit A hereto, that provides for, among other things, (i) Sponsor to receive 100% of the equity interests of EEHI in EOI free and clear of all liens, claims, encumbrances and interests, (ii) the discharge of all liens, claims, encumbrances and interests against the Debtors or any of their assets or properties (other than EEHI’s interest as sole shareholder of EOI), (iii) the Guggenheim Treatment, and (iv) such other terms and conditions as may be mutually agreeable to the Parties. “Property” means all of the real and personal property owned by the Debtors which serves as collateral for the Guggenheim Claim, as more particularly described in the Final DIP Order. “Restructuring” has the meaning set forth in the recitals hereto. “Sale Procedures Motion” has the meaning set forth in the preamble hereof. “Sale Procedures Order” has the meaning set forth in the preamble hereof. “SPA” means the Stock Purchase Agreement between and among EEHI, EOI, and Sponsor or an affiliate of Sponsor, in substantially the form agreed to by the parties thereto and approved by Guggenheim, in each of their respective sole discretion. “Sponsor” has the meaning set forth in the preamble hereof. 5
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 28 of 92 Desc “Termination Date” has the meaning set forth in section 5 hereto. “Termination Event” means the occurrence of any of the events set forth in section 5 hereto. 2. Obligations of the Debtors. Subject to the terms and conditions of this Agreement, each of the Debtors agrees, subject to the Termination Date (as defined below in section 5 hereof), as follows with respect to the Restructuring and the Plan: a. to promptly negotiate, in good faith, the definitive documents implementing, achieving and relating to the Restructuring and the Plan, including, but not limited to, (i) the Disclosure Statement and the Plan, (ii) the SPA, and (iii) all other agreements, documents, exhibits (whether to this Plan Support Agreement or otherwise), annexes, schedules and orders of the Bankruptcy Court that are necessary or appropriate for the Restructuring and the prompt consummation of the Restructuring and the Plan (all of the foregoing, collectively with this Agreement, the SPA, the Plan and the Disclosure Statement, and in each case as amended, modified or supplemented from time to time in accordance with the terms hereof or thereof, the “Plan Definitive Documents”); provided that, in each case, such Plan Definitive Documents shall not contain terms or conditions which are materially inconsistent with the terms hereof and shall otherwise be reasonably acceptable in form and substance to the Parties (except as otherwise provided in this Agreement); b. to promptly execute and deliver all Plan Definitive Documents (to the extent a Party thereto), and otherwise support the prompt consummation of the transactions contemplated by, the Plan Definitive Documents, including without limitation, to timely cast an appropriate ballot or ballots in favor of the Plan; c. to not interfere with or otherwise preclude Cappello from soliciting Bids in accordance with the terms hereof; d. to not object to, or support any action or proceeding or take any other action that would, or would reasonably be expected to, impede or delay, the consummation of the Restructuring, the approval of the Disclosure Statement or the confirmation or consummation of the Plan; e. to not vote for, consent to, intentionally induce or participate, directly or indirectly, in the formation, filing or prosecution of any other plan of reorganization or liquidation (or disclosure statement related thereto) with respect to the Debtors that is inconsistent with the Plan or the consummation of the Restructuring and the Plan; f. other than as expressly contemplated herein, to not directly or indirectly seek, solicit or encourage any other plan, sale, proposal or offer of winding up, liquidation, reorganization, merger, consolidation, dissolution or restructuring of the Debtors or any of their assets; g. to not commence or support any action or proceeding to appoint a trustee, conservator, receiver or examiner with expanded powers for the Debtors, or to 6
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 29 of 92 Desc dismiss the Bankruptcy Case, or to convert the Bankruptcy Case to cases under Chapter 7 of the Bankruptcy Code; and h. to use its commercially reasonable efforts to obtain Bankruptcy Court approval of the Disclosure Statement and Plan as promptly as possible and to consummate the Restructuring and the Plan on or before the Outside Date, subject to the terms and conditions set forth herein, the Disclosure Statement and Plan. 3. Obligations of Sponsor. a. Support of Restructuring and Plan. Subject to the terms and conditions of this Agreement, Sponsor agrees that, until this Agreement has been terminated in accordance with section 5 hereof, it shall not (and not seek to) withdraw, annul, rescind, modify or revoke its commitment to make the Cash Contribution and fund the Plan; provided, however, Sponsor shall not be obligated to support confirmation of the Plan, and may withdraw its offer to make the Cash Contribution, upon (A) the termination of this Agreement (provided, that if Sponsor is the terminating party, Sponsor is not then in material breach of its obligations under this Agreement); or (B) the withdrawal, amendment, modification of, or the filing of a pleading by any of the other Parties hereto seeking to withdraw, amend or modify, the Plan or the other Plan Definitive Documents in a manner that is adverse to Sponsor. b. Guggenheim Treatment. Sponsor shall not agree to or seek to implement any Guggenheim Treatment or other payment to Lenders other than pursuant to the terms of the Plan, and shall not circumvent the Debtors in their discussions with the Lenders. 4. Obligations of the Debtors. a. From and after the date hereof, so long as Sponsor is willing to perform hereunder, the Debtors agree that each will not accept offers with respect to any transaction involving or relating to a potential acquisition of the Property or other transaction that would compete with or otherwise be contrary to the terms of this Agreement, except as expressly provided hereunder, including any Bid submitted pursuant to the Bidding Procedures contemplated hereunder. b. The Debtors will (i) promptly negotiate, in good faith, execute and deliver all documents necessary for, and otherwise support, the prompt consummation of the Plan, (ii) not object to, or support any action or proceeding or take any other action that would, or would reasonably be expected to, impede or delay, the consummation and Bankruptcy Court approval of the Plan, and (iii) use commercially reasonable efforts to obtain Bankruptcy Court approval of the Bidding Procedures Order as promptly as possible. 5. Termination of Obligations. a. This Agreement shall terminate, and (except as otherwise specifically set forth herein) all of the rights and obligations of the Parties hereunder shall be of no further force or effect, in the event that (i) the Parties mutually agree to such termination in 7
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 30 of 92 Desc writing or (ii) this Agreement is terminated pursuant to the remaining paragraphs of this section 5. b. Each Party may terminate this Agreement by written notice to the other Parties upon the occurrence of any of the following events: (1) a material breach by any other Party of its respective obligations, representations or warranties under (i) this Agreement, the Plan, or any other Definitive Document or (ii) the Plan Support Agreement Order, which material breach is not cured on or within three (3) business days after the giving of written notice of such breach to the other Parties or, if applicable, on or within the cure period provided for under the applicable agreements or documents; and (2) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any ruling or order enjoining or restraining the consummation of the Restructuring and/or the confirmation and consummation of the Plan on the terms and conditions set forth herein and in the Plan. c. Sponsor may terminate this Agreement by written notice to the other Parties upon the occurrence of any of the following events: (1) the occurrence of a Material Adverse Change; (2) the failure of the Plan Effective Date to occur on or before the Outside Date; (3) the Bankruptcy Court fails to enter the Plan Support Agreement Order on or before July 11, 2013 (or such later date as may be acceptable to each of Sponsor and Guggenheim in each of their respective sole discretion); (4) the Debtor fails to file the Bidding Procedures Motion on or before June 19, 2013; (5) the Bankruptcy Court fails to enter the Bidding Procedures Order on or before July 11, 2013 (or such later date as may be acceptable to each of Sponsor and Guggenheim in each of their respective sole discretion); (6) the Bankruptcy Court fails to enter an order approving the Disclosure Statement on or before July 11, 2013 (or such later date as may be acceptable to each of Sponsor and Guggenheim in each of their respective sole discretion); (7) the Bankruptcy Court fails to enter a Confirmation Order on or before August 15, 2013 (or such later date as may be acceptable to each of Sponsor and Guggenheim in each of their respective sole discretion); 8
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 31 of 92 Desc (8) the appointment in the Bankruptcy Case of a trustee or examiner with expanded powers, or conversion of the Bankruptcy Case to cases under Chapter 7 of the Bankruptcy Code; and (9) the failure of Debtors and Sponsor to sign the SPA on or before June 28, 2013 (or such later date as may be acceptable to each of Sponsor and Guggenheim in each of their respective sole discretion). d. The date on which this Agreement is terminated in accordance with this section 5 shall be referred to as the “Termination Date”. e. If this Agreement is terminated pursuant to this section 5, then all further obligations of the Parties hereunder shall be terminated without further liability related to this Agreement, except as set forth in the final negotiated form of the SPA. Notwithstanding any provision in this Agreement to the contrary, the right to terminate this Agreement under this section 5 shall not be available to any Party whose failure to fulfill any material obligation under this Agreement has been the cause of, or resulted in, the occurrence of the applicable Termination Event. The provisions of this Section 5(e) shall survive any termination of this Agreement. 6. Representations of the Debtors. The Debtors hereby represent and warrant as follows as of the date hereof (with such representations and warranties to be supplemented by those contained in the SPA): a. Corporate Power and Authority. Each Debtor has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement, subject only to entry of appropriate orders by the Bankruptcy Court. b. Authorization. The execution and delivery of this Agreement and the performance of their obligations hereunder have been duly authorized by all necessary corporate action on its part, other than the requisite approvals of the Bankruptcy Court. c. No Conflicts. The execution, delivery and performance by them of this Agreement do not and shall not (i) violate any provision of law, rule or regulation applicable to them, or either of them, or any of their respective subsidiaries or their respective certificate of incorporation or bylaws or other organizational documents or those of any of their respective subsidiaries or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which either of them or any of their respective subsidiaries is a party, other than as a result of the commencement of the Bankruptcy Case. d. Governmental Consents. The execution, delivery and performance by it of this Agreement do not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body, other than such filings as may be necessary or required in connection with the Bankruptcy Case. 9
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 32 of 92 Desc e. No Litigation. No litigation or proceeding before any court, arbitrator or administrative or governmental body is pending against it that would adversely affect its ability to enter into this Agreement or perform its obligations hereunder (other than the Bankruptcy Case and those matters previously disclosed to Sponsor). f. Binding Obligation. Subject to and effective upon the execution of the SPA by the Debtors and Sponsor, and approval by the Bankruptcy Court hereof, this Agreement is the legally valid and binding obligation of the Debtors, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance and other laws affecting creditors’ rights, and by general limitations in the availability of equitable remedies. 7. Representations of Sponsor. Sponsor represents and warrants to the other Parties as follows with respect to itself only and as of the date hereof (with such representations and warranties to be supplemented by those contained in the SPA): a. Corporate Power and Authority. It has all requisite corporate, partnership or limited liability company power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement. b. Authorization. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate, partnership or limited liability company action on its part. c. No Conflicts. The execution, delivery and performance by it of this Agreement do not and shall not (i) violate any provision of law, rule or regulation applicable to it or any of its subsidiaries or its certificate of incorporation or bylaws or other organizational documents or those of any of its subsidiaries or (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it or any of its subsidiaries is a party. d. Governmental Consents. The execution, delivery and performance by it of this Agreement do not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body, other than such filings as may be necessary or required in connection with the Bankruptcy Case. e. No Litigation. No litigation or proceeding before any court, arbitrator or administrative or governmental body is pending against it that would adversely affect its ability to enter into this Agreement or perform its obligations hereunder (other than the Bankruptcy Case). f. Binding Obligation. Subject to and effective upon the execution of the SPA by the Debtors and Sponsor, this Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance and other 10
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 33 of 92 Desc laws affecting creditors’ rights, and by general limitations in the availability of equitable remedies. 8. Reasonable Access. For so long as this Agreement remains in effect, Debtors shall permit Sponsor such reasonable access as described in Section 5.03(b) of the SPA, as if, for the purposes of this Agreement, such section of the SPA (but only such section) had been reproduced in its entirety in this Section 8. 9. Entire Agreement; Prior Negotiations. This Agreement, including the exhibits hereto, sets forth in full the terms of agreement between and among the Parties and is intended as the full, complete and exclusive contract governing the relationship between and among the Parties with respect to the transactions contemplated herein, superseding all other discussions, promises, representations, warranties, agreements and understandings, whether written or oral, between or among the Parties with respect to the subject matter hereof; provided, that any confidentiality agreement between or among any of the Parties shall remain in full force and effect in accordance with its terms. No representations, oral or written, other than those set forth herein, may be relied on by any Party in connection with the subject matter hereof. 10. Amendment or Waiver. No waiver, modification or amendment of any term or provision of this Agreement shall be valid unless such waiver, modification or amendment is in writing and has been signed by the Party affected by such waiver, modification or amendment. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall any waiver be deemed a continuing waiver. Any modification of this section 9 shall require the written consent of all Parties. 11. Miscellaneous. a. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to such state’s choice of law provisions which would require the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each of the Parties hereby irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against it with respect to any matter arising under or arising out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, may be brought in the Bankruptcy Court, and by execution and delivery of this Agreement, each of the Parties hereby irrevocably accepts and submits itself to the exclusive jurisdiction of such court, generally and unconditionally, with respect to any such action, suit or proceeding, but only for such action, suit or proceeding. b. Specific Performance. Subject to and effective upon the execution of the SPA by the Debtors and Sponsor, it is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each nonbreaching Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy of any such breach, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. 11
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 34 of 92 Desc c. Reservation of Rights. Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner, waive, limit, impair or restrict the ability of any Party to protect and preserve its rights, remedies and interests. If the Restructuring contemplated herein is not consummated, or if this Agreement is terminated for any reason, the Parties hereto fully reserve any and all of their respective rights and remedies. d. Headings. The section headings of this Agreement are for convenience of reference only and shall not, for any purpose, be deemed a part of this Agreement. e. Notice. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile or electronic transmission or mailed (first class postage prepaid) to the parties at the following addresses, email addresses, or facsimile numbers: If to the Debtors: George Lamont Senior Vice President Evergreen Oil, Inc. 2415 Campus Drive Suite 225 Irvine, CA 92612 Fax: Email: glamont@evergreenoil.com with a copy (which shall not constitute notice) to: David L. Neale, Esq. Levene, Neale, Bender, Yoo & Brill L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, CA 90067 Fax: (310) 229-1234 Email: DLN@LNBYB.COM If to Sponsor: Brian Weber Executive Vice President-Corporate Planning and Development Clean Harbors, Inc. 42 Longwater Drive P.O. Box 9149 Norwell, MA 02061-9149 Fax: (781) 792-5900 Email: weberb@cleanharbors.com with a copy (which shall not constitute notice) to: 12
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 35 of 92 Desc C. Michael Malm, Esq. Davis, Malm & D’Agostine, P.C. One Boston Place, 37th Floor Boston, MA 02108 Fax: (617) 305-3103 Email: cmalm@davismalm.com If to Guggenheim: Kaitlin Trinh 135 East 57th Street New York, NY 10022 Fax: (212) 644-8107 Email: [______] with a copy to: Andrew Kenney 100 Wilshire Boulevard, Suite 500 Santa Monica, CA 90401 Fax: (310) 576-1271 Email: Andrew.Kenney@guggenheimpartners.com f. Successors and Assigns, No Third-Party Beneficiaries. This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators and representatives, including, without limitation, any chapter 11 or chapter 7 trustee appointed in the Bankruptcy Case. For avoidance of doubt, Sponsor reserves the right to assign this agreement to a designee or affiliate but, notwithstanding such assignment, shall remain liable for all of the obligations of Sponsor under this Agreement. Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties hereto and no other Person or entity shall, or shall be deemed to, be a third party beneficiary hereof. g. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. h. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Execution copies of this agreement may be delivered by facsimile or electronic mail which shall be deemed to be an original for the purposes of this Agreement. i. Acknowledgement. This Agreement is not, and shall not be deemed to be, an offer for the purchase, sale, exchange, hypothecation, or other transfer of securities for any 13
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 36 of 92 Desc purpose or a solicitation for consents to or votes on the Plan. The vote of any holder of any claim against or interest in the Debtor on or with respect to the Plan shall not be solicited until it has received (or concurrently with the delivery of) the Disclosure Statement and the Plan. j. Public Disclosure. Each of the Debtors will use its best efforts to (and will cause each of their respective affiliates and insiders to) submit to Sponsor and to Guggenheim in advance for approval all press releases and public filings relating to this Agreement or the transactions contemplated hereby and thereby and any amendments thereof. Except as required by applicable law, the Debtors shall not use the name of any Party in any press release without such Party’s prior written consent. k. No Strict Construction. This Agreement and all other agreements and documents executed and/or delivered in connection herewith have been prepared through the joint efforts of all of the Parties hereto or thereto. Neither the provisions of this Agreement or any such other agreements and documents nor any alleged ambiguity therein shall be interpreted or resolved against any Party on the ground that such Party or such Party’s counsel drafted this Agreement or such other agreements and documents, or based on any other rule of strict construction. l. Representation. Each Party has been represented by counsel of its choosing in connection with this Agreement and the transactions contemplated by this Agreement. m. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. n. Time Periods. If any time period or other deadline provided in this Agreement expires on a day that is not a Business Day, then such time period or other deadline, as applicable, shall be deemed extended to the next succeeding Business Day. [The remainder of this page is intentionally blank] 14
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 37 of 92 Desc
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 38 of 92 Desc
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 39 of 92 Exhibit A Joint Plan of Reorganization (Exhibit follows beginning on next page) 1 Desc
    • Case 8:13-bk-13163-SC 1 2 3 4 5 6 7 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 40 of 92 Desc DAVID L. NEALE (SBN 141225) JULIET Y. OH (SBN 211414) LINDSEY L. SMITH (SBN 265401) LEVENE, NEALE, BENDER, YOO & BRILL L.L.P. 10250 Constellation Boulevard, Suite 1700 Los Angeles, California 90067 Telephone: (310) 229-1234; Facsimile: (310) 229-1244 Email: dln@lnbyb.com, jyo@lnbyb.com, lls@lnbyb.com Attorneys for Chapter 11 Debtors and Debtors in Possession 8 UNITED STATES BANKRUPTCY COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SANTA ANA DIVISION 11 12 In re 13 EVERGREEN OIL, INC., 14 15 16 17 18 19 20 21 Debtors, Jointly Administered Debtors And Debtors-in-Possession Affects: Evergreen Oil, Inc., Only Evergreen Environmental Holdings, Inc., Only All Debtors ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:13-bk-13163-SC Jointly Administered With: Case No. 8:13-bk-13168 Chapter 11 JOINT PLAN OF REORGANIZATION DATED JUNE 19, 2013 22 23 24 25 26 27 28 1
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 41 of 92 Desc TABLE OF CONTENTS 2 INTRODUCTION.................................................................................................................... 2 3 ARTICLE I: TERMINOLOGY AND DEFINITIONS ....................................................... 3 4 ARTICLE II: CLASSIFICATION OF CLAIMS AND INTERESTS ............................... 13 5 2.1 Introduction ...................................................................................................... 13 6 2.2 Classes of Claims and Interests ...................................................................... 14 7 ARTICLE III: TREATMENT OF CLAIMS AND INTERESTS ...................................... 15 8 3.1 Unclassified Claims .......................................................................................... 15 9 3.2 Classes of Claims Against and Interests in the Debtors ............................... 16 10 ARTICLE IV: ACCEPTANCE OR REJECTION OF THE PLAN.................................. 17 11 4.1 Impaired Classes of Claims Entitled to Vote ................................................. 17 12 4.2 Acceptance by an Impaired Class Entitled to Vote ...................................... 17 13 4.3 Presumed Acceptances by Unimpaired Classes ........................................... 18 14 4.4 Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code .......... 18 15 ARTICLE V: MEANS FOR IMPLEMENTATION OF THE PLAN ............................... 18 16 5.1 Corporate Existence......................................................................................... 18 17 5.2 Vesting of Assets; Releases of Liens ............................................................... 18 18 5.3 Sale Documents ................................................................................................ 19 19 5.4 The Creditor Fund ........................................................................................... 19 20 5.5 Claim Reserves ................................................................................................. 19 21 5.6 Officers of Reorganized Debtors ................................................................... 20 22 5.7 Indemnification of Reorganized Debtors’ Directors, Officers, and Employees ......................................................................................................... 20 5.8 Retained Claims ............................................................................................... 20 5.9 Effectuating Documents; Further Transactions ........................................... 21 5.10 Exemption From Certain Transfer Taxes ..................................................... 21 5.11 Corporate Action ............................................................................................. 21 5.12 Approval of Compromises and Settlements Embodied in Plan................... 22 23 24 25 26 27 28 i
    • Case 8:13-bk-13163-SC 1 2 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 42 of 92 Desc ARTICLE VI: TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES ................................................................................ 22 6.1 Assumption of Contracts and Leases; Continuing Obligations................... 22 6.2 Cure Rights for Executory Contracts or Unexpired Leases Assumed under Plan......................................................................................................... 23 5 6.3 Rejection of Contracts and Leases ................................................................. 24 6 6.4 Rejection Damage Claim Bar Date for Rejections Pursuant to Plan.......... 25 7 6.5 Employee Compensation and Benefit Programs ......................................... 25 8 6.6 Insurance Rights .............................................................................................. 26 9 6.7 Limited Extension of Time to Assume or Reject .......................................... 26 10 6.8 Postpetition Contracts and Leases ................................................................. 27 11 6.9 Claims Arising from Assumption or Rejection ............................................. 27 3 4 12 ARTICLE VII: PROVISIONS GOVERNING DISTRIBUTIONS ................................... 27 13 7.1 Distributions for Claims and Interests Allowed as of Effective Date .......... 27 14 7.2 Interest on Claims ............................................................................................ 27 15 7.3 Designation of and Distributions by Disbursing Agent ................................ 28 16 7.4 Means of Cash Payment .................................................................................. 28 17 7.5 Delivery of Distributions ................................................................................. 28 18 7.6 Application of Distribution Record Date ....................................................... 30 19 7.7 Withholding and Reporting Requirements ................................................... 30 20 7.8 Prepayment....................................................................................................... 31 21 7.9 De Minimis Distributions ................................................................................ 31 22 7.10 No Distribution in Excess of Allowed Amount of Claim .............................. 31 23 7.11 Allocation of Distributions .............................................................................. 31 24 25 26 27 28 ARTICLE VIII: PROCEDURES FOR RESOLVING DISPUTED, CONTINGENT, AND UNLIQUIDATED CLAIMS AND DISTRIBUTIONS WITH RESPECT THERETO .................................................................. 32 8.1 Prosecution of Objections to Claims .............................................................. 32 8.2 Treatment of Disputed Claims Pending Allowance ...................................... 33 8.3 Distributions on Account of Disputed Claims Once Allowed ...................... 33 ii
    • Case 8:13-bk-13163-SC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 43 of 92 Desc ARTICLE IX: CONDITIONS TO CONFIRMATION AND CONSUMMATION OF THE PLAN.............................................................................................. 33 9.1 Conditions to Confirmation ............................................................................ 33 9.2 Conditions to Effective Date ........................................................................... 34 ARTICLE X: RETENTION OF JURISDICTION ............................................................. 35 10.1 Scope of Retention of Jurisdiction .................................................................. 35 10.2 Failure of the Bankruptcy Court to Exercise Jurisdiction........................... 37 ARTICLE XI: MISCELLANEOUS PROVISIONS ........................................................... 37 11.1 Professional Fee Claims; Expense Reimbursements .................................... 37 11.2 Administrative Claims Bar Date ................................................................... 37 11.3 Payment of Statutory Fees .............................................................................. 39 11.4 Modifications and Amendments ..................................................................... 39 11.5 Severability of Plan Provisions ....................................................................... 39 11.6 Successors and Assigns and Binding Effect ................................................... 39 11.7 Compromises and Settlements ........................................................................ 40 11.8 Releases and Satisfaction of Subordination Rights....................................... 40 11.9 Releases and Related Matters ......................................................................... 40 11.10 Discharge of the Debtors ................................................................................. 41 11.11 Injunction.......................................................................................................... 42 11.12 Exculpation and Limitation of Liability ........................................................ 43 11.13 Term of Injunctions or Stays .......................................................................... 45 11.14 Revocation, Withdrawal, or Non-Consummation ........................................ 45 11.15 Dissolution of Creditors’ Committee ............................................................. 45 11.16 Computation of Time ....................................................................................... 45 11.17 Governing Law ................................................................................................. 46 26 27 28 iii
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 44 of 92 1 JOINT PLAN OF REORGANIZATION 2 UNDER CHAPTER 11, TITLE 11, UNITED STATES CODE 3 OF EVERGREEN ENVIRONMENTAL HOLDINGS, INC. AND 4 EVERGREEN OIL, INC. 5 Desc INTRODUCTION 6 Evergreen Environmental Holdings, Inc. (“EEHI”) and Evergreen Oil, Inc. (“EOI,” and, 7 together with EEHI, the “Debtors” or “Plan Proponents”), Debtors and Debtors in possession in 8 the above-captioned Chapter 11 cases, hereby propose this plan of reorganization for the 9 resolution of outstanding Claims (as defined herein) against and Interests (as defined herein) in 10 the Debtors. 11 Reference is made to the Disclosure Statement (as defined herein) distributed 12 contemporaneously herewith for a discussion of the history, businesses, properties, results of 13 operations, projections for future operations, and risk factors of the Debtors, a summary and 14 analysis of the Plan (as defined herein), and certain related matters. To the extent any conflict 15 exists between the terms of the Plan and the Disclosure Statement, the terms of the Plan shall 16 govern. 17 All holders of Claims and Interests who are entitled to vote on the Plan are encouraged to 18 read the Plan and the Disclosure Statement in their entirety before voting to accept or reject the 19 Plan. Subject to certain restrictions and requirements set forth in Section 1127 of the Bankruptcy 20 Code, Rule 3019 of the Bankruptcy Rules (as defined herein), and Article XI of the Plan, the 21 Plan Proponents reserve the right to alter, amend, modify, revoke, or withdraw the Plan prior to 22 its substantial consummation. 23 For purposes of the Plan, except as expressly provided or unless the context otherwise 24 requires, all capitalized terms not otherwise defined in the Plan shall have the meanings ascribed 25 to them in Article I of the Plan. Any capitalized term used in the Plan that is not defined herein, 26 but is defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed 27 to that term in the Bankruptcy Code or the Bankruptcy Rules. Whenever the context requires, 28 such terms shall include the plural as well as the singular number, the masculine gender shall 2
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 45 of 92 Desc include the feminine, and the feminine gender shall include the masculine. 2 ARTICLE XII 3 TERMINOLOGY AND DEFINITIONS 4 For purposes of the Plan, (a) any reference in the Plan to a contract, instrument, release, 5 or other agreement or document being in a particular form or on particular terms and conditions 6 means that such document shall be substantially in such form or substantially on such terms and 7 conditions, (b) any reference in the Plan to an existing document or exhibit means such 8 document or exhibit as it may be amended, modified, or supplemented from time to time, (c) 9 unless otherwise specified, all references in the Plan to Sections, Articles, and Exhibits are 10 references to Sections, Articles, and Exhibits of or to the Plan, (d) the words “herein,” “hereof,” 11 and “hereto” refer to the Plan in its entirety rather than to a particular portion of the Plan, (e) 12 captions and headings to Articles and Sections are inserted for convenience of reference only and 13 are not intended to be a part of or to affect the interpretation of the Plan, and (f) the rules of 14 construction set forth in Section 102 of the Bankruptcy Code and in the Bankruptcy Rules shall 15 apply. 16 12.1 “Administrative Claim” means a Claim for payment of an administrative 17 expense of a kind specified in Section 503(b) or 1114(e)(2) of the Bankruptcy Code and entitled 18 to priority pursuant to Section 507(a)(1) of the Bankruptcy Code, including, but not limited to, 19 (a) the actual, necessary costs and expenses incurred after the Petition Date of preserving the 20 Estates and operating the businesses of the Debtors, including wages, salaries, bonuses, or 21 commissions for services rendered after the commencement of the Chapter 11 Case, (b) 22 Professional Fee Claims, (c) claims pursuant to Section 503(b)(3)(D) (“Substantial Contribution 23 Claims”), (d) all fees and charges assessed against the Estates under Section 1930 of Title 28 of 24 the United States Code, (e) all Allowed Claims for the value of goods received under Section 25 503(b)(9) of the Bankruptcy Code, (f) all Allowed Claims for reclamation under Section 26 546(c)(2)(A) of the Bankruptcy Code, (g) Cure payments, (h) the DIP Claims, and (i) to the 27 extent applicable, the portion of the Prepetition Adequate Protection Obligations that constitute 28 Claims under Section 507(b) of the Bankruptcy Code. 3
    • Case 8:13-bk-13163-SC 1 12.2 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 46 of 92 Desc “Allowed” means, (a) when used with respect to an Administrative Claim, all or 2 any portion of an Administrative Claim that has been allowed, or adjudicated in favor of the 3 holder by estimation or liquidation, by a Final Order, that was incurred by the Debtors in the 4 ordinary course of business during the Chapter 11 Case and as to which there is no dispute as to 5 the Debtors’ liability, or that has become allowed by failure to object pursuant to Section 8.1 of 6 the Plan; (b) when used with respect to a Claim other than an Administrative Claim, such Claim 7 or any portion thereof (i) that has been allowed, or adjudicated in favor of the holder by 8 estimation or liquidation, by a Final Order, or (ii) as to which (x) no Proof of Claim has been 9 filed with the Bankruptcy Court and (y) the liquidated and noncontingent amount of which is 10 included in the Schedules, other than a Claim that is included in the Schedules at zero, in an 11 unknown amount, or as Disputed, or (iii) for which a Proof of Claim in a liquidated amount has 12 been timely filed with the Bankruptcy Court pursuant to the Bankruptcy Code, any Final Order, 13 or other applicable bankruptcy law, and as to which either (x) at the time of the applicable initial 14 Distribution Date, the Debtors have not identified such Claim as being objectionable in whole or 15 part and no objection to the allowance thereof has been filed by the applicable Claims Objection 16 Deadline, or (y) any objection to its allowance has been settled or withdrawn, or has been denied 17 by a Final Order, or (iv) that is expressly allowed in a liquidated amount in the Plan; or (c) when 18 used with respect to an Interest, an Interest held in the name, kind, and amount set forth on the 19 records retained by the Debtors. 20 21 22 23 24 12.3 “Available Funds” means the Cash remaining from the Buyer Payment after the payment in full of Allowed Claims described in Section 3.1 of the Plan. 12.4 “Bankruptcy Code” means Section 101 et seq., of Title 11 of the United States Code, as now in effect or hereafter amended and applicable to the Chapter 11 Case. 12.5 “Bankruptcy Court” means the United States Bankruptcy Court for the Central 25 District of California or such other court as may have jurisdiction over the Chapter 11 Case or 26 any aspect thereof. 27 12.6 “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure. 28 12.7 “Bar Date” means the date designated by the Bankruptcy Court as the last date 4
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 47 of 92 Desc for filing Proofs of Claim against the Debtors. 2 12.8 “Bidding Procedures” means the bidding procedures, in form and substance 3 reasonably acceptable to the Plan Sponsor and approved by the Bankruptcy Court, that establish 4 the rules and procedures for tendering a competing bid to serve as the sponsor for the Plan. 5 12.9 “Business Day” means any day, excluding Saturdays, Sundays, or “legal 6 holidays” (as defined in Rule 9006(a) of the Bankruptcy Rules), on which commercial banks are 7 open for business in New York, New York. 8 12.10 “Buyer” means the entity that, consistent with the order approving the Bidding 9 Procedures, (a) is approved by the Bankruptcy Court as the Plan Sponsor; and (b) performs as 10 required to fully consummate the Plan on the Effective Date. 11 12 12.11 “Buyer Payment” means the Cash payment by the Buyer upon the Effective Date. 13 12.12 “Cash” means legal tender of the United States or equivalents thereof. 14 12.13 “Chapter 11 Case” means the jointly administered Chapter 11 cases of the 15 Debtors. 16 12.14 “Claim” means (a) the right to payment, whether or not such right is reduced to 17 judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, 18 legal, equitable, secured, or unsecured, or (b) the right to an equitable remedy for breach of 19 performance if such breach gives rise to a right to payment, whether or not such right to an 20 equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, 21 undisputed, secured, or unsecured. 22 12.15 “Claims Objection Deadline” means as follows: (1) for any Claim filed through 23 and including the Bar Date, the last day for filing objections to such Claim shall be one hundred 24 twenty (120) days after the Effective Date; (2) for any non-Administrative Claim filed after the 25 Bar Date, the last day for filing objections to such Claim shall be the later of (a) one hundred and 26 twenty (120) days after the Effective Date, or (b) sixty (60) days after the applicable Proof of 27 Claim is filed; and (3) for any Administrative Claim, the last day for filing objections to such 28 Administrative Claim shall be sixty (60) days after the applicable Request for Payment of an 5
    • Case 8:13-bk-13163-SC 1 2 3 4 5 6 7 8 9 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 48 of 92 Desc Administrative Claim is filed. 12.16 “Class” means a category of holders of Claims or Interests, as described in Article II of the Plan. 12.17 “Confirmation” means approval of the Plan by the Bankruptcy Court pursuant to Section 1129 of the Bankruptcy Code. 12.18 “Confirmation Date” means the date of entry by the clerk of the Bankruptcy Court of the Confirmation Order. 12.19 “Confirmation Hearing” means the hearing to consider Confirmation of the Plan under Section 1128 of the Bankruptcy Code. 10 12.20 “Confirmation Hearing Date” means the date of the Confirmation Hearing. 11 12.21 “Confirmation Order” means the order entered by the Bankruptcy Court 12 confirming the Plan and approving associated findings of fact and conclusions of law. 13 12.22 “Contract/Lease Schedules” means the schedules which identify the executory 14 contracts and unexpired leases to be assumed under the Plan and set forth any Cure obligation 15 associated with the assumption of such contracts and leases. 16 12.23 “Creditor” means any Person who holds a Claim against the Debtors. 17 12.24 “Creditor Fund” means the Proceeds and any other Cash obtained by the 18 Debtors in the liquidation of any assets that remain in the Estates following the Effective Date 19 (subject to the satisfaction of any liens on such assets). 20 21 12.25 “Creditor Payments” means payments from the Creditor Fund necessary to pay (or create a reserve for payment of) Allowed Claims in accordance with the terms of this Plan. 22 12.26 “Creditors’ Committee” means the Official Committee of Unsecured Creditors 23 appointed pursuant to Section 1102(a) of the Bankruptcy Code in the Chapter 11 Case, as 24 reconstituted from time to time. 25 12.27 “Cure” means (a) with respect to the assumption of an executory contract or 26 unexpired lease pursuant to Section 365(b) of the Bankruptcy Code, (i) the distribution of Cash, 27 or the distribution of such other property as may be agreed upon by the parties or ordered by the 28 Bankruptcy Court, in an amount equal to all unpaid monetary obligations, without interest, or 6
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 49 of 92 Desc 1 such other amount as may be agreed upon by the parties under an executory contract or 2 unexpired lease, to the extent such obligations are enforceable under the Bankruptcy Code and 3 applicable bankruptcy law, or (ii) the taking of such other actions as may be agreed upon by the 4 parties or ordered by the Bankruptcy Court. 5 6 12.28 “Cure Reserve” means the reserve funded by the Buyer and established to make payments of Cure amounts described in Section 6.2 of the Plan. 7 12.29 “Debtors” means, collectively, Evergreen Environmental Holdings, Inc., a 8 Nevada corporation, and Evergreen Oil, Inc., a California corporation, each in its capacity as a 9 debtor and debtor in possession pursuant to Sections 1107 and 1108 of the Bankruptcy Code. 10 11 12 13 12.30 “DIP Claims” means the Administrative Claims held by the DIP Lender against the Debtors arising from the DIP Loan Agreement and the DIP Order. 12.31 “DIP Lender” means Guggenheim Private Debt Fund Note Issuer, LLC in its capacity as a lender under the DIP Loan Agreement. 14 12.32 “DIP Loan Agreement” means that certain DIP Loan Agreement, dated as of 15 April 9, 2013, by and among EOI, the Guarantors (as defined in the DIP Loan Agreement), and 16 Guggenheim Private Debt Fund Note Issuer, LLC as the lender party thereto, as the same may be 17 amended, restated, supplemented or otherwise modified from time to time pursuant to the terms 18 thereof. 19 12.33 “DIP Order” means the Final Order (I) Authorizing the Debtors to (A) Obtain 20 Postpetition Financing Pursuant to 11 U.S.C. §§ 105, 361, 362, 364(c), 364(d)(1), and 364(e), 21 and (B) Utilize Cash Collateral of Prepetition Secured Entities Pursuant to 11 U.S.C. § 363; (II) 22 Granting Adequate Protection to Prepetition Secured Lenders Pursuant to 11 U.S.C. §§ 361, 23 362, 363, and 364; and (III) Granting Related Relief [Doc. No. 102]. 24 25 12.34 “Disbursing Agent” means the Debtors or any Person designated by the Debtors, in their sole discretion, to serve as disbursing agent under the Plan. 26 12.35 “Disclosure Statement” means the written disclosure statement that relates to the 27 Plan, as amended, supplemented, or modified from time to time, and is distributed, in accordance 28 with Section 1125 of the Bankruptcy Code and Rule 3018 of the Bankruptcy Rules (or any 7
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 50 of 92 Desc 1 summary thereof) following approval by the Bankruptcy Court for distribution to certain Classes 2 or categories of Claims and Interests. 3 12.36 “Disputed” means (a) with respect to any Claim, other than a Claim that has been 4 Allowed pursuant to the Plan or a Final Order, a Claim (i) as to which no Request for Payment or 5 Proof of Claim has been filed or deemed to have been filed by the applicable Bar Date, that has 6 been or hereafter is listed on the Schedules as unliquidated, contingent, or disputed; (ii) as to 7 which a Request for Payment or Proof of Claim has been filed or deemed to have been filed by 8 the applicable Bar Date, but as to which an objection or request for estimation in accordance 9 with the Plan, the Bankruptcy Code, the Bankruptcy Rules, and any orders of the Bankruptcy 10 Court has been filed by the applicable Claims Objection Deadline, or which is otherwise 11 disputed in accordance with applicable law, which objection, request for estimation, or dispute 12 has not been withdrawn or determined by a Final Order; (iii) as to which a Request for Payment 13 or Proof of Claim was required to be filed by the Bankruptcy Code, the Bankruptcy Rules, or an 14 order of the Bankruptcy Court, but as to which a Request for Payment or Proof of Claim was not 15 timely or properly filed; (iv) for damages based upon the rejection by the Debtors of an 16 executory contract or unexpired lease under Section 365 of the Bankruptcy Code and as to which 17 the applicable Bar Date has not passed as of the applicable initial Distribution Date; (v) that is 18 disputed in accordance with the provisions of the Plan; or (vi) if not otherwise Allowed, 19 identified by the Debtors at the time of the applicable initial Distribution Date as being 20 objectionable in whole or part and as to which an objection to the allowance thereof has been 21 filed by the applicable Claims Objection Deadline; and (b) with respect to any Interest, an 22 Interest held in a name, kind, or amount different from the name, kind, and amount set forth on 23 the records retained by the Debtors. 24 12.37 “Distribution Date” means for any Claim (a) that is an Allowed Claim on the 25 Effective Date, the Effective Date or as soon as practicable thereafter, or (b) that is not an 26 Allowed Claim on the Effective Date, thirty (30) calendar days after the last day of the month 27 during which the Claim becomes an Allowed Claim. 28 12.38 “Distribution Record Date” means the record date for determining entitlement 8
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 51 of 92 Desc 1 to receive distributions under the Plan on account of Allowed Claims, which date shall be the 2 Business Day immediately preceding the Effective Date, at 5:00 p.m. prevailing Pacific time on 3 such Business Day. 4 12.39 “EEHI” means Evergreen Environmental Holdings, Inc. 5 12.40 “Effective Date” means the Business Day upon which all conditions to the 6 consummation of the Plan as set forth in Section 9.2 of the Plan have been satisfied or waived, 7 and is the date on which the Plan becomes effective. When the Plan refers to a payment to be 8 made on the Effective Date, the payment shall be made on the Effective Date or as soon as 9 practicable thereafter. 10 12.41 “EOI” means Evergreen Oil, Inc. 11 12.42 “Estates” means the Estates of the Debtors in the Chapter 11 Case created 12 pursuant to Section 541 of the Bankruptcy Code. 13 12.43 “Evergreen Stock” means, collectively, all common stock in EOI issued and 14 outstanding prior to the Effective Date, including any options or rights to purchase or acquire 15 such Interests, or other conversion rights, rights of first refusal, subscriptions, commitments, 16 agreements, or other rights, contractual or otherwise, to acquire or receive any such interests 17 prior to the Effective Date. 18 12.44 “Final Order” means an order or judgment of the Bankruptcy Court or any other 19 court of competent jurisdiction as entered on the docket in the Chapter 11 Case or the docket of 20 any such court, the operation or effect of which has not been stayed, reversed, or amended and as 21 to which order or judgment the time to appeal, petition for certiorari, or move for reargument or 22 rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for 23 reargument or rehearing shall then be pending or as to which any appeal, petition for certiorari, 24 reargue, or rehear shall have been waived in writing in form and substance satisfactory to the 25 Parties, or, in the event that an appeal, writ of certiorari, or reargument or rehearing thereof has 26 been sought, no stay pending appeal has been granted, or such order of the Bankruptcy Court or 27 other court of competent jurisdiction shall have been determined by the highest court to which 28 such order was appealed, or certiorari, reargument, or rehearing shall have been denied or 9
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 52 of 92 Desc 1 resulted in no modification of such order and the time to take any further appeal, petition for 2 certiorari, or move for reargument or rehearing shall have expired. 3 12.45 “General Unsecured Claim” means a Claim against the Debtors that is not an 4 Administrative Claim, a Priority Tax Claim, a Priority Non-Tax Claim, a Mechanics’ Lien 5 Claim, a Lenders’ Secured Claim or an Other Secured Claim. 6 12.46 “Governmental Authority” means any federal, state, local or foreign 7 government or political subdivision thereof, or any agency or instrumentality of such 8 government or political subdivision, or any self-regulated organization or other non- 9 governmental regulatory authority or quasi-governmental authority, or any arbitrator, court or 10 11 12 13 14 15 16 17 18 tribunal of competent jurisdiction. 12.47 “Guggenheim” means Guggenheim Corporate Funding, LLC, as administrative agent for Lenders. 12.48 “Impaired” means, with respect to any Claim or Interest, that such Claim or Interest is impaired within the meaning of Section 1124 of the Bankruptcy Code. 12.49 “Incurred But Not Paid Claims” has the meaning set forth in Section 5.5(B) of the Plan. 12.50 “Interests” means the legal, equitable, contractual, or other rights of any Person (a) with respect to Old Evergreen Stock and (b) to acquire or receive any of the foregoing. 19 12.51 “Lenders” means, collectively, Equitrust Life Insurance Company, Wake Forest 20 University, Wilshire Institutional Master Fund SPC – Guggenheim Alpha Segregated Portfolio, 21 Guggenheim Private Debt Fund Note Issuer, LLC, and Guggenheim Debt Private Master Fund, 22 LLC, and DeMenno Kerdoon. 23 24 12.52 “Lenders’ Secured Claim” means the Allowed Secured Claim of Guggenheim and the Lenders for an aggregate amount of not less than $66,242,734.27. 25 12.53 “Mechanics’ Lien Claims” means all Claims secured by a duly perfected lien 26 against the Newark Property arising under Division 3, Part 4, Title 15 of the California Civil 27 Code that arose prior to, and remain unpaid as of, the Effective Date. 28 12.54 “Newark Property” means the Debtors’ re-refining facility located in Newark, 10
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 53 of 92 Desc California. 2 12.55 “Other Priority Claim” means a Claim against the Debtors entitled to priority 3 pursuant to Section 507(a) of the Bankruptcy Code, other than a Priority Tax Claim or an 4 Administrative Claim. 5 6 12.56 “Other Secured Claim” means a Secured Claim arising prior to the Petition Date against the Debtors, other than a Lenders’ Secured Claim and/or a Mechanics’ Lien Claim. 7 12.57 “Person” means any individual, firm, partnership, corporation, trust, association, 8 company, limited liability company, joint stock company, joint venture, governmental unit, or 9 other entity or enterprise. 10 11 12.58 “Petition Date” means April 9, 2013, the date on which the Debtors filed their respective petitions for relief commencing the Chapter 11 Case. 12 12.59 “Plan” means this plan of reorganization under Chapter 11 of the Bankruptcy 13 Code and all exhibits annexed hereto or referenced herein, as the same may be amended, 14 modified, or supplemented from time to time. 15 12.60 “Plan Proponents” has the meaning set forth in the introduction to the Plan. 16 12.61 “Prepetition Adequate Protection Obligations” has the meaning set forth in the 17 18 19 DIP Order. 12.62 “Priority Tax Claim” means a Claim of a governmental unit that is entitled to priority pursuant to Section 507(a)(8) of the Bankruptcy Code. 20 12.63 “Priority Non-Tax Claim” means a Claim to the extent such Claim is entitled to 21 priority in right of payment under section 507(a) of the Bankruptcy Code, other than the 22 Lenders’ Secured Claim, Other Secured Claims, Administrative Claims, Mechanics’ Lien 23 Claims, and Priority Tax Claims. 24 25 12.64 “Proceeds” means the Cash remaining from the Available Funds after the satisfaction of the Lenders’ Secured Claim. 26 12.65 “Professional” means any professional employed in the Chapter 11 Case by 27 order of the Bankruptcy Court and any professional seeking compensation or reimbursement of 28 expenses in connection with the Chapter 11 Case pursuant to Section 503(b) of the Bankruptcy 11
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 54 of 92 Desc Code. This term does not include the Debtors’ ordinary course professionals. 2 12.66 “Professional Fee Claim” means a Claim of a Professional for compensation or 3 reimbursement of costs and expenses relating to services rendered after the Petition Date and 4 prior to and including the Confirmation Date. 5 6 7 8 12.67 “Proof of Claim” means a proof of claim filed with the Bankruptcy Court in connection with the Chapter 11 Case. 12.68 “Property” means all of the real and personal property of the Debtors that constitutes collateral for the Lenders’ Secured Claim, as more fully described in the DIP Order. 9 12.69 “Released Causes of Action” means all claims, obligations, suits, judgments, 10 damages, demands, debts, rights, causes of action, and liabilities that are released, waived, and 11 discharged pursuant to Section 11.9 of the Plan or pursuant to any agreement, contract, 12 instrument, release, or document entered into in connection with the Plan. 13 12.70 “Released Parties” has the meaning set forth in Section 11.9(a) of the Plan. 14 12.71 “Releasing Parties” has the meaning set forth in Section 11.9(b) of the Plan. 15 12.72 “Reorganized Debtors” means the reorganized Debtors or their successors on or 16 17 18 after the Effective Date. 12.73 “Request for Payment” means a request for payment of an Administrative Claim filed with the Bankruptcy Court in connection with the Chapter 11 Case. 19 12.74 “Reserve” has the meaning set forth in Section 5.5(B) of the Plan. 20 12.75 “Retained Claims” means all claims, obligations, suits, judgments, damages, 21 demands, debts, rights, causes of action, assets and liabilities that are property of the Estates, 22 whether arising under the Bankruptcy Code or non-bankruptcy law that are not Released Causes 23 of Action. For the avoidance of any ambiguity, Retained Claims include, without limitation, (a) 24 any causes of action under Chapter 5 of the Bankruptcy Code, (b) any claim asserted by the 25 Debtors with respect to any policy of insurance, and (c) any right to receive a tax refund. 26 12.76 “Schedules” means the statements of financial affairs and the schedules of assets, 27 liabilities, and contracts filed in the Bankruptcy Court by the Debtors, as amended or 28 supplemented from time to time in accordance with Rule 1009 of the Bankruptcy Rules or orders 12
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 55 of 92 Desc of the Bankruptcy Court. 2 12.77 “Secured Claim” means a Claim that is secured by a lien that is not subject to 3 avoidance under the Bankruptcy Code or otherwise invalid under the Bankruptcy Code or 4 applicable state law, on property in which an Estates has an interest, or a Claim that is subject to 5 setoff under Section 553 of the Bankruptcy Code; to the extent of the value of the Claim holder’s 6 interest in the Estates’ interest in such property or to the extent of the amount subject to setoff, as 7 applicable; as determined by a Final Order, or in the case of setoff, pursuant to Section 553 of the 8 Bankruptcy Code, or in either case as otherwise agreed upon in writing by the Debtors or the 9 Reorganized Debtors and the holder of such Claim. 10 12.78 “SPA” means the Stock Purchase Agreement between and among EEHI, EOI, 11 and the Buyer (or its designee), in the form agreed to by the parties thereto and approved by 12 Guggenheim, which sets forth, among other things, the terms and conditions under which the 13 Buyer is to acquire the Evergreen Stock. 14 15 12.79 “Unimpaired” means, with respect to any Claim, that such Claim is not impaired within the meaning of Section 1124 of the Bankruptcy Code. 16 ARTICLE XIII 17 CLASSIFICATION OF CLAIMS AND INTERESTS 18 13.1 Introduction 19 In accordance with Section 1123(a)(1) of the Bankruptcy Code, Administrative Claims 20 and Priority Tax Claims have not been classified, and the respective treatment of such 21 unclassified claims is set forth in Section 3.1 of the Plan. 22 A Claim or Interest is placed in a particular Class only to the extent that the Claim or 23 Interest falls within the description of that Class and such Claim or Interest has not been paid, 24 released, or otherwise settled prior to the Effective Date. A Claim or Interest may be bifurcated 25 and classified in other Classes to the extent that any portion of the Claim or Interest falls within 26 the description of such other Classes. 27 Except as expressly set forth below, all distributions will be made on the Effective Date 28 or as soon as practicable thereafter. The Plan will establish a reserve or reserves to ensure 13
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 56 of 92 Desc 1 payment of any claims in accordance with the terms of this Plan that arose in whole or in part 2 prior to the Effective Date but that are allowed and payable after the Effective Date. 3 Following consummation of this Plan, the Buyer, the Reorganized Debtors and any of their 4 respective affiliates, insiders, successors, subsidiaries, members and assets (including, 5 without limitation, all of the assets of the Estates) shall have no liability for, among other 6 things, (a) any Claim or Interest against the Debtors that arose or was asserted or could 7 have arisen or been asserted prior to the Effective Date, (b) any pre-Effective Date act of 8 the Debtors, (c) any act of the Disbursing Agent including, without limitation, distributions 9 from any reserve established under or pursuant to the Plan. Except as specifically 10 identified in the Plan or the Confirmation Order, the Debtors shall bear full responsibility 11 for making or arranging for the making of disbursements under the Plan and for the 12 creation and administration of any reserve established under or pursuant to the Plan; or 13 (d) any other person or entity making any distributions or holding any reserve under the 14 Plan. 15 13.2 Classes of Claims and Interests 16 17 18 19 20 21 22 23 24 CLASS Class 1, Allowed Lenders’ Secured Claim against both Debtors Class 2, Allowed Mechanics’ Lien Claims against EOI Class 3 et seq., Allowed Other Secured Claims against either Debtor Class 4, Allowed Priority Non-Tax Claims against either Debtor Class 5, Allowed General Unsecured Claims against either Debtor Class 6, Holders of Interests in EOI TREATMENT Impaired, entitled to vote on the Plan Potentially Impaired1, entitled to vote on the Plan Potentially Impaired, entitled to vote on the Plan Potentially Impaired, entitled to vote on the Plan Potentially Impaired, entitled to vote on the Plan Unimpaired, not entitled to vote on the Plan 25 26 27 28 1 Whether or not Classes designated as potentially Impaired are actually Impaired will be determined upon computation of the Cash that will be available in the Creditor Fund. The amount of Cash available in the Creditor Fund will be computed as of the Confirmation Hearing Date. 14
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 57 of 92 1 ARTICLE XIV 2 Desc TREATMENT OF CLAIMS AND INTERESTS 3 14.1 Unclassified Claims 4 (1) Administrative Claims. 5 A. General. Except as set forth below, Allowed Administrative Claims, other 6 than Allowed Administrative Claims of insiders, shall be paid in full in Cash on the later of (a) 7 60 days after such claims are allowed or (b) the Effective Date. 8 Administrative Claims are Allowed or payable after the Effective Date, they shall be paid in full 9 in Cash promptly after such claims are Allowed or payable out of a reserve established under or 10 pursuant to the Plan from the Creditor Fund. 11 12 To the extent Allowed B. Statutory Claims. All fees payable pursuant to 28 U.S.C. § 1930 shall be paid in full in Cash. 13 C. Professional Claims. Professionals shall file final fee applications within 14 60 days after the Effective Date. Promptly after allowance, professional fees shall be paid in full 15 in Cash. 16 D. Postpetition Tax Claims. Postpetition tax claims shall be filed on the later of (a) 17 60 days after the Effective Date or (b) 120 days after the filing of a tax return with the applicable 18 governmental unit, and shall be paid in full in Cash promptly after such claims are allowed out of 19 a reserve established under the Plan from the Creditor Fund. The Debtors will present evidence 20 at the Confirmation Hearing setting forth the Debtors’ reasonable estimate of the amount of Cash 21 necessary to fund the foregoing reserve. 22 (2) Priority Tax Claims. 23 Each holder of an Allowed Priority Tax Claim shall receive Cash on the Effective Date in 24 an amount equal to such Allowed Priority Tax Claim. All Priority Tax Claims which are not due 25 and payable on or before the Effective Date shall be pro rated, so the amount that is due as of the 26 Effective Date shall be paid in Cash on the Effective Date (or paid when due in the ordinary 27 course of business in accordance with the terms thereof out of a reserve established under the 28 Plan from the Creditor Fund). 15
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 58 of 92 Desc 1 14.2 Classes of Claims Against and Interests in the Debtors 2 A. Class 1, Allowed Lenders’ Secured Claim: On the Effective Date, Guggenheim 3 and the Lenders shall receive Cash from Available Funds up to the amount of the Allowed 4 Lenders’ Secured Claim. To the extent that Available Funds are insufficient to pay the Allowed 5 Lenders’ Secured Claim in full, Guggenheim shall retain its Lien on the assets described in 6 clauses (b) and (c) of the definition of “Retained Claims” set forth in Section 1.74 herein, and 7 shall receive any proceeds of such assets received by the Debtors on account thereof until the 8 Allowed Lenders’ Secured Claim is paid in full (at which point any additional proceeds of such 9 assets will constitute “Proceeds” hereunder). 10 B. Class 2, Allowed Mechanics’ Lien Claims: Each holder of an Allowed 11 Mechanics’ Lien Claim shall receive its pro rata share of the Creditor Fund on the later of (1) the 12 Effective Date and (2) the date upon which such Claim becomes an Allowed Mechanics’ Lien 13 Claim by Final Order or agreement with the Debtors. If available, the Debtors shall reserve from 14 the Creditor Fund Cash in an amount sufficient to pay any Disputed Mechanics’ Lien Claim in 15 full in the event that the Disputed Mechanics’ Lien Claim becomes an Allowed Mechanics’ Lien 16 Claim. 17 C. Class 3 et seq.; Allowed Other Secured Claims. Class 3 consists of separate sub- 18 Classes for each Allowed Other Secured Claim. Each sub-Class is deemed to be a separate Class 19 with respect to the Debtors for all purposes under the Bankruptcy Code. Each holder of an 20 Allowed Class 3 Allowed Other Secured Claim shall receive its pro rata share of the Creditor 21 Fund remaining after the payment of Allowed Class 2 Claims on the later of (1) the Effective 22 Date and (2) the date upon which such claim becomes an Allowed Class 3 Allowed Other 23 Secured Claim by Final Order of the Bankruptcy Court. On the Effective Date, a reserve shall be 24 established under the Plan and funded from the Creditor Fund, if available, for the benefit of 25 members of Class 3 whose claims have not been Allowed as of the Effective Date by Final Order 26 of the Bankruptcy Court. 27 28 D. Class 4, Allowed Priority Non-Tax Claims. Each holder of an Allowed Class 4 Priority Non-Tax Claim shall receive its pro rata share of the Creditor Fund remaining after 16
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 59 of 92 Desc 1 payment of Class 2 and 3 Allowed Claims, if any, on the later of (1) the Effective Date and (2) 2 the date upon which such claim becomes an Allowed Class 4 Allowed Priority Non-Tax Claim 3 in an amount equal to such Allowed Class 4 Priority Non-Tax Claim. On the Effective Date, a 4 reserve shall be established under the Plan and funded from the Creditor Fund, if available, for 5 the benefit of members of Class 4 whose claims have not been Allowed as of the Effective Date 6 by Final Order of the Bankruptcy Court. 7 E. Class 5, Allowed General Unsecured Claims. Each holder of an Allowed Class 8 General Unsecured Claim will receive its pro rata share of the Creditor Fund, if any, remaining 9 after the payment of Class 2, 3 and 4 Allowed Claims on the later of (1) the Effective Date and 10 (2) the date upon which such claim becomes an Allowed Class 5 Allowed General Unsecured 11 Claim by Final Order of the Bankruptcy Court in an amount equal to such Allowed Class 5 12 General Unsecured Claim. On the Effective Date, a reserve shall be established under the Plan 13 and funded from the Creditor Fund, if available, for the benefit of members of Class 5 whose 14 claims have not been Allowed as of the Effective Date by Final Order of the Bankruptcy Court 15 F. Class 6, Holders of Interests. The Buyer, in exchange for the Buyer Payment, 16 shall receive the Evergreen Stock upon the Effective Date from EEHI. The Evergreen Stock 17 shall not be cancelled, and all rights associated with the Evergreen Stock shall not be altered in 18 any way by the Plan. 19 20 Classes 1 through 5 are Impaired under the Plan and are entitled to vote to accept or reject the Plan. 21 ARTICLE XV 22 ACCEPTANCE OR REJECTION OF THE PLAN 23 15.1 Impaired Classes of Claims Entitled to Vote 24 Holders of Claims in each Impaired Class of Claims and Interests are entitled to vote as a 25 Class to accept or reject the Plan, other than Classes that are deemed to reject the Plan. The 26 votes of holders of Claims in Classes 1 through 5 shall be solicited with respect to the Plan. 27 15.2 Acceptance by an Impaired Class Entitled to Vote 28 In accordance with Section 1126 of the Bankruptcy Code, and except as provided in 17
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 60 of 92 Desc 1 Section 1126(e) of the Bankruptcy Code, an Impaired Class of Claims shall have accepted the 2 Plan if the Plan is accepted by the holders of at least two-thirds (2/3) in dollar amount and more 3 than one-half (½) in number of the Allowed Claims of such Class or sub-Class that have timely 4 and properly voted to accept or reject the Plan. 5 15.3 Presumed Acceptances by Unimpaired Classes 6 With respect to Classes of Claims against the Debtors, Class 6 is Unimpaired under the 7 Plan. Under Section 1126(f) of the Bankruptcy Code, holders of such Unimpaired Claims are 8 conclusively presumed to have accepted the Plan, and the votes of holders of such Unimpaired 9 Claims shall not be solicited. 10 15.4 Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code 11 To the extent that any Impaired Class rejects the Plan or is deemed to have rejected the 12 Plan, the Plan Proponents shall request Confirmation of the Plan, as it may be modified from 13 time to time, under Section 1129(b) of the Bankruptcy Code. The Plan Proponents reserve the 14 right to alter, amend, or modify the Plan to satisfy the requirements of Section 1129(b) of the 15 Bankruptcy Code, if necessary. 16 ARTICLE XVI 17 MEANS FOR IMPLEMENTATION OF THE PLAN 18 16.1 Corporate Existence 19 The Reorganized Debtors shall maintain their existence after the Effective Date as 20 separate legal entities, in accordance with the applicable laws in the jurisdiction in which each is 21 organized. 22 16.2 Vesting of Assets; Releases of Liens 23 The assets of the Debtors’ Estates, including all the Property and all claims, obligations, 24 suits, judgments, damages, demands, debts, rights, causes of action, and liabilities against third 25 parties held or asserted by the Debtors, shall vest in the Reorganized Debtors on the Effective 26 Date free and clear of all liens, Claims, encumbrances and interests. Although, on the Effective 27 Date, all liens asserted by holders of Mechanics’ Lien Claims shall be released against the 28 Newark Property, such liens shall attach to the funds maintained in the reserve established with 18
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 61 of 92 Desc 1 respect to Disputed Class 2 Claims to the same extent, validity, priority, force and effect as such 2 liens existed as against the Newark Property. On and after the Effective Date, the Reorganized 3 Debtors may operate their business and may use, acquire, and dispose of such property free of 4 any restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the Bankruptcy Court. 5 16.3 Sale Documents 6 In accordance with the Bidding Procedures approved by the Bankruptcy Court, the Buyer 7 was identified following the solicitation of competing bids from parties to serve as the Plan 8 Sponsor and an auction. The Debtors and the Buyer are negotiating a form of the SPA and other 9 related agreements and documents, which will collectively set forth the terms and conditions 10 under which the Buyer is to acquire the Evergreen Stock. The Cash payment to be made by the 11 Buyer upon the Effective Date of the Plan to acquire the Evergreen Stock (the “Buyer Payment”) 12 shall be distributed in accordance with the DIP Loan Agreement and DIP Order; provided, that 13 the DIP Lender has consented to the payment of any allowed costs of sale, and payment in full of 14 Allowed Administrative Claims and Allowed Priority Tax Claims in accordance with Section 3.1 15 of the Plan, prior to distributions on account of the Allowed Lenders’ Secured Claim, with the 16 remaining Proceeds to be used to fund the Creditor Fund and distributed in accordance with the 17 terms of the Plan. 18 16.4 The Creditor Fund 19 The Debtors shall establish the Creditor Fund which shall consist of the Cash necessary 20 to make payments required to be made on the Effective Date, and shall be obtained from the 21 Proceeds and the Cash recovered by the Reorganized Debtors with respect to Retained Claims 22 (after satisfaction and release of Guggenheim’s lien thereon to secure the Lenders’ Secured 23 Claim). 24 16.5 Claim Reserves 25 A. Class 2 Reserve. The reserve for holders of Class 2 Claims shall be established, 26 funded and maintained in accordance with Section 3.2(B) of the Plan. Funds held in this reserve 27 shall not be commingled with funds for any other reserve. 28 B. Other Claim Reserves. On the Effective Date, the Debtors shall create reserves 19
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 62 of 92 Desc 1 other than the reserve for holders of Class 2 Claims (collectively, “Reserves” and individually, a 2 “Reserve”) in an amount necessary to pay (a) all non-Class 2 Claims that arose or were incurred 3 on or prior to the Effective Date but (b) not otherwise paid in full on the Effective Date (the 4 “Incurred But Not Paid Claims”). All Reserves shall be funded from the Creditor Fund with 5 Cash equal to the maximum potential liability of the Debtors under the Incurred But Not Paid 6 Claims, if such Cash is available. The Debtors will present evidence at the Confirmation 7 Hearing setting forth the Debtors’ reasonable estimate of the amount of Cash necessary to fully 8 fund the Reserves. 9 maintained by counsel for the Debtors or such other party that is designated by the Court. Funds 10 held for one Reserve shall not be commingled with funds for another Reserve. Payments shall 11 be made to holders of Allowed non-Class 2 Claims once such Claims are Allowed by Final 12 Order within ten (10) Business Days following receipt of such Final Order allowing any such 13 Claims. Any residual Cash left in the Reserves following the allowance and payment, or 14 disallowance, of the Incurred But Not Paid Claims shall be distributed holders of Allowed Class 15 5 Claims. Such Reserves shall be placed into one or more segregated accounts 16 16.6 17 The existing officers and managers of the Debtors shall be deemed to have resigned as of 18 the Effective Date. The proposed senior officers of the Reorganized Debtors shall be identified 19 at or prior to the Disclosure Statement Hearing. 20 16.7 Officers of Reorganized Debtors Indemnification of Reorganized Debtors’ Directors, Officers, and Employees 21 Upon the Effective Date, the Reorganized Debtors may adopt customary 22 indemnification bylaws for members, officers, and other key employees serving the Reorganized 23 Debtors. 24 16.8 Retained Claims 25 Except as otherwise provided in the Plan or the Confirmation Order, or in any 26 contract, instrument, release, indenture, or other agreement entered into in connection with the 27 Plan, in accordance with Section 1123(b) of the Bankruptcy Code, on the Effective Date, the 28 Reorganized Debtors shall retain all of the Debtors’ Retained Claims that the Debtors may hold 20
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 63 of 92 Desc 1 against any Person. The Reorganized Debtors shall retain and may enforce, sue on, settle, or 2 compromise (or decline to do any of the foregoing) all such Retained Claims. The Reorganized 3 Debtors or their successor(s) may pursue such Retained Claims as appropriate, in accordance 4 with the best interests of the Reorganized Debtors or any successor(s) who hold such rights in 5 accordance with applicable law and consistent with the terms of the Plan. 6 16.9 Effectuating Documents; Further Transactions 7 Any appropriate officer or manager of the Debtors or the Reorganized Debtors, as the 8 case may be, shall be authorized to execute, deliver, file, or record such contracts, instruments, 9 releases, indentures, and other agreements or documents, and take such actions as may be 10 necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. 11 The secretary or assistant secretary of the Debtors or the Reorganized Debtors (or other 12 appropriate manager or officer), as the case may be, shall be authorized to certify or attest to any 13 of the foregoing actions. 14 16.10 Exemption From Certain Transfer Taxes 15 Pursuant to Section 1146(c) of the Bankruptcy Code, any transfers from the Debtors to 16 the Reorganized Debtors or any other Person in the United States pursuant to the Plan shall not 17 be taxed under any law imposing a stamp tax or other similar tax. Such exemption specifically 18 applies, without limitation, to all documents necessary to evidence and implement distributions 19 under the Plan and vesting of the Property in the Reorganized Debtors. 20 16.11 Corporate Action 21 On the Effective Date, all actions contemplated or necessary to implement the 22 transactions described in the Plan shall be authorized and approved in all respects pursuant to the 23 Plan. All matters provided for herein involving the corporate structure of the Debtors or the 24 Reorganized Debtors, and any corporate action required by the Debtors or Reorganized Debtors 25 in connection with the Plan, shall be deemed to have occurred and shall be in effect, without any 26 requirement of further action by the members, officers or directors of the Debtors or the 27 Reorganized Debtors. On the Effective Date, the appropriate officers and members of the 28 Reorganized Debtors are authorized to issue, execute, and deliver the agreements, documents, 21
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 64 of 92 Desc 1 securities, and instruments contemplated by the Plan in the name of and on behalf of the 2 Reorganized Debtors without the need for any required approvals, authorizations or consents 3 except for express consents required under the Plan. 4 16.12 Approval of Compromises and Settlements Embodied in Plan 5 The terms of the Plan represent compromises and settlements of certain issues. 6 To the extent necessary, the Plan is deemed to be a motion for approval of the compromises and 7 settlements and the Confirmation Order shall contain findings supporting and conclusions 8 approving the compromises and settlements as fair and equitable and within the bounds of 9 reasonableness. 10 ARTICLE XVII 11 TREATMENT OF EXECUTORY CONTRACTS 12 AND UNEXPIRED LEASES 13 17.1 Assumption of Contracts and Leases; Continuing Obligations 14 (a) On the Effective Date, all executory contracts and unexpired leases of the Debtors 15 listed on the Contract/Lease Schedules are hereby deemed assumed in accordance with the 16 provisions and requirements of Sections 365 and 1123 of the Bankruptcy Code. On or before the 17 day that is five (5) days before the Confirmation Hearing Date, the Debtors shall file the 18 Contract/Lease Schedules; provided, however, that the Debtors reserve the right to amend the 19 Contract/Lease Schedules at any time prior to the Effective Date. The Debtors shall provide 20 notice of any amendments to the Contract/Lease Schedules to the parties to the executory 21 contracts and unexpired leases affected thereby. 22 (b) To the extent applicable, all executory contracts or unexpired leases of the 23 Debtors assumed pursuant to the Plan shall be deemed modified such that the transactions 24 contemplated by the Plan shall not be a “change of control,” however such term may be defined 25 in the relevant executory contract or unexpired lease, and any required consent under any such 26 contract or lease shall be deemed satisfied by the Confirmation of the Plan. 27 28 (c) Each executory contract and unexpired lease assumed pursuant to Article VI of the Plan (or pursuant to other Bankruptcy Court order) shall remain in full force and effect and 22
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 65 of 92 Desc 1 be fully enforceable by the Reorganized Debtors in accordance with its terms, except as modified 2 by the provisions of the Plan, or any order of the Bankruptcy Court authorizing and providing for 3 its assumption or applicable law. 4 (d) In the event that any license granted to the Debtors by a Governmental Authority, 5 and in effect immediately prior to the Effective Date, is considered to be an executory contract 6 and is not otherwise terminated or rejected by the Debtors, such license shall be deemed to be 7 assumed pursuant to Section 365 of the Bankruptcy Code under the Plan. 8 (e) Continuing obligations of third parties to the Debtors under insurance policies, 9 contracts, or leases that have otherwise ceased to be executory or have otherwise expired on or 10 prior to the Effective Date, including, without limitation, continuing obligations to pay insured 11 claims, to defend against and process claims, to refund premiums or overpayments, to provide 12 indemnification, contribution or reimbursement, to grant rights of first refusal, to maintain 13 confidentiality, or to honor releases, shall continue and shall be binding on, and enforceable by 14 the Reorganized Debtors against, such third parties notwithstanding any provision to the contrary 15 in the Plan, unless otherwise specifically terminated by the Debtors or by order of Bankruptcy 16 Court. The deemed rejection provided by Section 6.3 of the Plan shall not apply to any such 17 continuing obligations. 18 (f) To the extent any insurance policy under which the insurer has a continuing 19 obligation to pay the Debtors or a third party on behalf of the Debtors is held by the Bankruptcy 20 Court to be an executory contract and is not otherwise assumed upon motion by a Final Order, 21 such insurance policy shall be treated as though it is an executory contract that is assumed 22 pursuant to Section 365 of the Bankruptcy Code under the Plan. Any and all Claims (including 23 Cure) arising under or related to any insurance policies or related insurance agreements that are 24 assumed by the Debtors prior to or as of the Effective Date: (i) shall not be discharged; (ii) shall 25 be Allowed Administrative Claims; and (iii) shall be paid on the Effective Date. 26 27 28 17.2 Cure Rights for Executory Contracts or Unexpired Leases Assumed under Plan Any monetary Cure amounts by which each executory contract and unexpired lease to be 23
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 66 of 92 Desc 1 assumed pursuant to the Plan is in default shall be satisfied, pursuant to Section 365(b)(1) of the 2 Bankruptcy Code, by payment of the Cure amount in Cash on the later of (a) the Effective Date 3 (or as soon as practicable thereafter), (b) as due in the ordinary course of business or (c) on such 4 other terms as the parties to such executory contracts or unexpired leases may otherwise agree. 5 If not paid on the Effective Date, such payments shall be made out of a reserve funded by the 6 Buyer and established on the Effective Date to ensure payment in full any cure amount (the 7 “Cure Reserve”). In the event of a dispute regarding: (i) the amount of any Cure payments, (ii) 8 the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future 9 performance” (within the meaning of Section 365 of the Bankruptcy Code) under the contract or 10 lease to be assumed or assigned, or (iii) any other matter pertaining to assumption, the Cure 11 payments required by Section 365(b)(1) of the Bankruptcy Code shall be made following the 12 entry of a Final Order resolving the dispute and approving the assumption. The Debtors shall list 13 Cure amounts for executory contracts and unexpired leases on the Contract/Lease Schedules. 14 The failure of any non-Debtor party to an executory contract or unexpired lease to file and 15 serve an objection to the Cure amount listed on the Contract/Lease Schedules for such 16 party’s contract or lease by the deadline set forth on the Contract/Lease Schedules shall be 17 deemed consent to such Cure amount; provided, however, that prior to entry of a Final Order 18 approving the assumption of an executory contract or unexpired lease, the Debtors shall be 19 authorized to reject any executory contract or unexpired lease to the extent the Debtors, in the 20 exercise of their sound business judgment, conclude that the amount of the Cure obligation as 21 determined by the Bankruptcy Court renders assumption of such executory contract or unexpired 22 lease unfavorable to the Estates. 23 17.3 Rejection of Contracts and Leases 24 Except as otherwise provided in the Plan, or in any contract, instrument, release, 25 indenture, or other agreement or document entered into in connection with the Plan, as of the 26 Effective Date, the Debtors shall be deemed to have rejected each prepetition executory contract 27 and unexpired lease to which it is a party unless such contract or lease (i) is listed on the 28 Contract/Lease Schedules as of the Confirmation Hearing Date, (ii) was previously assumed or 24
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 67 of 92 Desc 1 rejected upon motion by a Final Order, (iii) previously expired or terminated pursuant to its own 2 terms, or (iv) is the subject of any pending motion, including to assume, to assume on modified 3 terms, to reject or to make any other disposition filed by a Debtor on or before the Confirmation 4 Hearing Date. The Confirmation Order shall constitute an order of the Bankruptcy Court under 5 Section 365(a) of the Bankruptcy Code approving the rejection of the prepetition executory 6 contracts and unexpired leases described above, as of the Effective Date. 7 17.4 Rejection Damage Claim Bar Date for Rejections Pursuant to Plan 8 If the rejection of an executory contract or unexpired lease pursuant to the Plan results in 9 a Claim, then such Claim will be (a) classified as a Class 5, General Unsecured Claim but (b) 10 shall be forever barred and shall not be enforceable against the Debtors unless a Proof of Claim 11 is filed and served upon counsel to the Reorganized Debtors and the Debtors within thirty (30) 12 days after entry of the Confirmation Order. The foregoing applies only to Claims arising from 13 the rejection of an executory contract or unexpired lease; any other Claims held by a party to a 14 rejected contract or lease shall have been evidenced by a Proof of Claim filed by earlier 15 applicable bar dates, or shall be otherwise Allowed, and if not shall be barred and unenforceable 16 unless otherwise ordered by the Bankruptcy Court. 17 17.5 Employee Compensation and Benefit Programs 18 (a) All employee compensation, benefit, and expense reimbursement programs, 19 plans, policies, and agreements of the Debtors in effect during the pendency of the Chapter 11 20 Case, including all health and welfare plans, 401(k) plans, pension plans within the meaning of 21 Title IV of the Employee Retirement Income Security Act of 1974, as amended, and all benefits 22 subject to Sections 1114 and 1129(a)(13) of the Bankruptcy Code, entered into before or after the 23 Petition Date and in effect during the pendency of the Chapter 11 Case, shall be deemed to be, 24 and shall be treated as though they are, executory contracts that can be rejected pursuant to 25 Section 365 of the Bankruptcy Code under the Plan. All such contracts shall be deemed rejected 26 as of the Effective Date. 27 28 (b) As of the Effective Date, any and all stock based incentive plans or stock ownership plans of the Debtors entered into before the Effective Date shall be terminated. To 25
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 68 of 92 Desc 1 the extent such plans, agreements, or documents are considered to be executory contracts, such 2 plans, agreements, or documents shall be deemed to be, and shall be treated as though they are, 3 executory contracts that are rejected pursuant to Section 365 of the Bankruptcy Code under the 4 Plan. 5 17.6 6 Notwithstanding anything to the contrary in the Plan (including any other provision that 7 purports to be preemptory or supervening), nothing in the Plan (including any other provision 8 that purports to be preemptory or supervening) shall in any way operate to, or have the effect of, 9 impairing the legal, equitable or contractual rights of the Debtors’ insurers, if any, in any respect. 10 The rights of the Debtors’ insurers shall be determined under their respective insurance policies 11 and any related agreements with the Debtors, as applicable, subject, however, to the rights, if 12 any, of the Debtors to assume or reject any such policy or agreement and the consequences of 13 such assumption or rejection under Section 365 of the Bankruptcy Code. 14 17.7 15 Insurance Rights Limited Extension of Time to Assume or Reject (a) Notwithstanding anything set forth in Article VI of the Plan, and except 16 with respect to a real property lease subject to Section 365(d)(4) of the Bankruptcy Code (unless 17 otherwise agreed by the lessor), in the event of a dispute as to whether a contract is executory or 18 a lease is unexpired, the Debtors’ right to move to assume or reject such contract or lease shall be 19 extended until the date that is thirty (30) days after entry of a Final Order by the Bankruptcy 20 Court determining that the contract is executory or the lease is unexpired. The deemed rejection 21 provided for in Section 6.3 of the Plan shall not apply to any such contract or lease, and any such 22 contract or lease shall be assumed or rejected only upon motion of the Debtors following the 23 Bankruptcy Court’s determination that the contract is executory or the lease is unexpired. 24 (b) Except with respect to a real property lease subject to Section 365(d)(4) of the 25 Bankruptcy Code (unless otherwise agreed by the lessor), in the event the Debtors or the 26 Reorganized Debtors become aware after the Confirmation Date of the existence of an executory 27 contract or unexpired lease that was not included in the Contract/Lease Schedules, the right of 28 the Debtors or Reorganized Debtors to move to assume or reject such contract or lease shall be 26
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 69 of 92 Desc 1 extended until the date that is thirty (30) days after the date on which the Debtors or the 2 Reorganized Debtors become aware of the existence of such contract or lease. The deemed 3 rejection provided for in Section 6.3 of the Plan shall not apply to any such contract or lease 4 unless a motion to assume or reject is not filed within such (30) day period. 5 17.8 6 The Debtors shall not be required to assume or reject any contract or lease entered into by 7 the Debtors after the Petition Date. Any such contract or lease shall continue in effect in 8 accordance with its terms after the Effective Date. 9 17.9 Postpetition Contracts and Leases Claims Arising from Assumption or Rejection 10 All Allowed Claims arising from the assumption of any executory contract or unexpired 11 lease shall be treated as Administrative Claims pursuant to Section 3.1(1) of the Plan (but with 12 the payment of such Allowed Claims to be funded by the Buyer, not the Creditor Fund); all 13 Allowed Claims arising from the rejection of an executory contract or unexpired lease shall be 14 treated as General Unsecured Claims pursuant to Section 3.2(E) of the Plan, and all other 15 Allowed Claims relating to an executory contract or unexpired lease shall have such status as 16 they may be entitled to under the Bankruptcy Code as determined by Final Order of the 17 Bankruptcy Court. 18 ARTICLE XVIII 19 PROVISIONS GOVERNING DISTRIBUTIONS 20 18.1 Distributions for Claims and Interests Allowed as of Effective Date 21 Except as otherwise provided herein or as ordered by the Bankruptcy Court, all 22 distributions to holders of Allowed Claims as of the applicable Distribution Date shall be made 23 on or as soon as practicable after the applicable Distribution Date. Distributions on account of 24 Claims that first become Allowed after the applicable Distribution Date shall be made pursuant 25 to Section 8.3 of the Plan. 26 18.2 Interest on Claims 27 To the extent sufficient Cash remains in the Creditor Fund after payment in full of all 28 Allowed Claims against the Debtors, postpetition interest shall be paid to holders of Allowed 27
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 70 of 92 Desc 1 Claims at the higher of (a) the applicable rate of interest provided for in any contract or other 2 agreement with the Debtors, or (b) in the absence of a contractual interest rate or otherwise, the 3 rate of two percent (2%) per annum. 4 18.3 Designation of and Distributions by Disbursing Agent 5 (a) Except as provided herein, the Debtors shall designate the Person to serve as the 6 Disbursing Agent under the Plan, and shall file a written notice of such designation at least five 7 (5) days prior to the Confirmation Hearing Date. 8 9 10 (b) Unless otherwise provided herein, the Disbursing Agent shall make all distributions required to be made on the respective Distribution Dates under the Plan. (c) If the Disbursing Agent is an independent third party designated by the Debtors to 11 serve in such capacity, such Disbursing Agent shall receive from the Debtors, without further 12 Bankruptcy Court approval, reasonable compensation for distribution services rendered pursuant 13 to the Plan and reimbursement of reasonable out-of-pocket expenses incurred in connection with 14 such services, on any agreed terms. No Disbursing Agent shall be required to give any bond, 15 surety or other security for the performance of its duties unless otherwise ordered by the 16 Bankruptcy Court. 17 (d) The Reorganized Debtors and each of their affiliates, agents, insiders and officers 18 shall have no liability for the Disbursing Agent’s actions or inactions, including failure to make 19 any payments under the Plan. 20 18.4 Means of Cash Payment 21 Cash payments made pursuant to the Plan shall be in U.S. funds, by check or wire 22 transfer or by such other commercially reasonable means as may be agreed to by the payor and 23 the payee. 24 18.5 Delivery of Distributions 25 (a) Distributions to holders of Allowed Claims shall be made by the Disbursing 26 Agent or at its direction as applicable, (i) at the addresses set forth on the Proofs of Claim filed 27 by such holders (or at the last known addresses of such holders if no Proof of Claim is filed or if 28 the Debtors and the Disbursing Agent have been notified of a change of address), (ii) at the 28
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 71 of 92 Desc 1 addresses set forth in any written notices of address changes delivered to the Debtors and the 2 Disbursing Agent after the date of any related Proof of Claim, or (iii) at the addresses reflected in 3 the Schedules if no Proof of Claim has been filed and a written notice of a change of address has 4 not been received by the Debtors and the Disbursing Agent. 5 (b) If any holder’s distribution is returned as undeliverable, no further distributions to 6 such holder shall be made unless and until the Disbursing Agent is notified by the Debtors or 7 such holder of such holder’s then current address, at which time all missed distributions shall be 8 made to such holder without interest. If any distribution is made by check and such check is not 9 returned but remains uncashed for six (6) months after the date of such check, the Disbursing 10 Agent may cancel and void such check, and the distribution with respect thereto shall be deemed 11 undeliverable. If any holder is requested to provide a taxpayer identification number or to 12 otherwise satisfy any tax withholding requirements with respect to a distribution and such holder 13 fails to do so within six (6) months of the date of such request, such holder’s distribution shall be 14 deemed undeliverable. 15 (c) With respect to distributions to be made by the Disbursing Agent or at its 16 direction, amounts in respect of returned or otherwise undeliverable or unclaimed distributions 17 made by the Disbursing Agent on behalf of the Debtors shall be returned to the Debtors or 18 returned to the reserve established for the Claim at issue until such distributions are claimed. All 19 claims for returned or otherwise undeliverable or unclaimed distributions must be made (a) on or 20 before the first (1st) anniversary of the Effective Date or (b) with respect to any distribution 21 made later than such date, on or before six (6) months after the date of such later distribution; 22 after which date all undeliverable property shall revert to the Reorganized Debtors free of any 23 restrictions thereon and the claims of any holder or successor to such holder with respect to such 24 property shall be discharged and forever barred, notwithstanding any federal or state escheat 25 laws to the contrary. The Reorganized Debtors shall have no liability for any such claims. In the 26 event of a timely claim for any returned or otherwise undeliverable or unclaimed distribution, the 27 Debtors shall deliver the applicable distribution amount or property to the Disbursing Agent for 28 distribution pursuant to the Plan. Nothing contained in the Plan shall require the Debtors, the 29
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 72 of 92 Desc 1 Reorganized Debtors, or any Disbursing Agent to attempt to locate any holder of an Allowed 2 Claim. 3 18.6 Application of Distribution Record Date 4 At the close of business on the Distribution Record Date, the claims register maintained 5 in the Chapter 11 Case shall be closed and there shall be no further changes in the listed holders 6 of the Claims. The Debtors, the Reorganized Debtors, the Disbursing Agent, and each of their 7 respective agents, successors, and assigns shall have no obligation to recognize any transfer of 8 Claims occurring after the Distribution Record Date and shall be entitled instead to recognize 9 and deal for all purposes hereunder with only those record holders stated on the claims register as 10 of the close of business on the Distribution Record Date irrespective of the number of 11 distributions to be made under the Plan to such Persons or the date of such distributions. 12 18.7 Withholding and Reporting Requirements 13 In connection with the Plan and all distributions hereunder, the Disbursing Agent shall, to 14 the extent applicable, comply with all tax withholding, payment, and reporting requirements 15 imposed by any federal, state, provincial, local, or foreign taxing authority, and all distributions 16 hereunder shall be subject to any such withholding, payment, and reporting requirements. The 17 Disbursing Agent shall be authorized to take any and all actions that may be necessary or 18 appropriate to comply with such withholding, payment, and reporting requirements. 19 Notwithstanding any other provision of the Plan, (a) each holder of an Allowed Claim or Interest 20 that is to receive a distribution pursuant to the Plan shall have sole and exclusive responsibility 21 for the satisfaction and payment of any tax obligations imposed by any governmental unit, 22 including income, withholding, and other tax obligations, on account of such distribution, and (b) 23 no distribution shall be made to or on behalf of such holder pursuant to the Plan unless and until 24 such holder has made arrangements satisfactory to the Disbursing Agent for the payment and 25 satisfaction of such withholding tax obligations in connection with such distribution. Any Cash 26 or other property to be distributed pursuant to the Plan shall, pending the implementation of such 27 arrangements, be treated as an undeliverable distribution pursuant to Section 7.5 of the Plan. 28 30
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 73 of 92 Desc 1 18.8 Prepayment 2 Except as otherwise provided in the Plan, any ancillary documents entered into in 3 connection herewith, or the Confirmation Order, the Debtors shall have the right to prepay, 4 without penalty, all or any portion of an Allowed Claim at any time; provided, however, that any 5 such prepayment shall not be violative of, or otherwise prejudice, the relative priorities and 6 parities among the Classes of Claims. 7 18.9 De Minimis Distributions 8 Neither the Reorganized Debtors, the Debtors, nor the Disbursing Agent shall have any 9 obligation to make a Cash distribution with respect to any Claim if the amount of the distribution 10 is less than $20.00. The Claim of any holder whose distribution is in an amount less than $20.00 11 shall be discharged, and such holder shall be forever barred from asserting such Claim against 12 the Debtors, the Reorganized Debtors, or their respective property. 13 18.10 No Distribution in Excess of Allowed Amount of Claim 14 Notwithstanding anything to the contrary herein, no holder of an Allowed Claim shall 15 receive in respect of such Claim any distribution of a value as of the Effective Date in excess of 16 the Allowed amount of such Claim (including payments on account of interest, fees and other 17 charges due and payable through the date of payment of such Claim, as further described in the 18 Plan). 19 18.11 Allocation of Distributions 20 All distributions received under the Plan by holders of Claims shall be deemed to be 21 allocated first to the principal amount of such Claim as determined for United States federal 22 income tax purposes and then to accrued interest, if any, with respect to such Claim. 23 /// 24 /// 25 /// 26 /// 27 /// 28 31
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 74 of 92 1 ARTICLE XIX 2 PROCEDURES FOR RESOLVING DISPUTED, 3 CONTINGENT, AND UNLIQUIDATED CLAIMS AND 4 Desc DISTRIBUTIONS WITH RESPECT THERETO 5 19.1 Prosecution of Objections to Claims 6 (a) Objections to Claims 7 All objections to Claims must be filed and served on the holders of such Claims 8 by the Claims Objection Deadline. If an objection has not been filed to a Proof of Claim or 9 Request for Payment by the Claims Objection Deadline, the Claim to which the Proof of Claim 10 or scheduled Claim, or Request for Payment, relates shall be treated as an Allowed Claim if such 11 Claim has not been allowed earlier. The Debtors may, at any time, request that the Bankruptcy 12 Court estimate any contingent or unliquidated Claim pursuant to Section 502(c) of the 13 Bankruptcy Code, regardless of whether the Debtors has previously objected to such Claim or 14 whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall 15 retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to 16 such Claim, including during the pendency of any appeal relating to any such objection. In the 17 event the Bankruptcy Court so estimates any contingent or unliquidated Claim, that estimated 18 amount shall constitute either the Allowed amount of such Claim or a maximum limitation on 19 such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a 20 maximum limitation on such Claim, the Debtors may elect to pursue any supplemental 21 proceedings to object to any ultimate payment on such Claim. All of the aforementioned Claims 22 objection, estimation, and resolution procedures are cumulative and are not necessarily exclusive 23 of one another. Claims may be estimated and thereafter resolved by any permitted mechanisms. 24 (b) Authority to Prosecute Objections 25 After the Effective Date, only the Debtors shall have the authority to file or 26 continue to pursue objections to Claims and to settle, compromise, withdraw, or litigate to 27 judgment objections to Claims. The Debtors may settle or compromise any Disputed Claim 28 without approval of the Bankruptcy Court. 32
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 75 of 92 Desc 1 Nothing herein shall limit the contractual rights and obligations of any party, including 2 any insurer, with respect to any Claim, under (i) an assumed agreement, including any assumed 3 insurance policy, or (ii) any non-executory agreement, including a non-executory insurance 4 policy, as to which such party has continuing obligations pursuant to Section 6.1(e) of the Plan or 5 applicable law. 6 19.2 Treatment of Disputed Claims Pending Allowance 7 Notwithstanding any other provisions of the Plan, no payments or distributions shall be 8 made on account of a Disputed Claim or, if less than the entire Claim is a Disputed Claim, the 9 portion of a Claim that is Disputed, until such Claim becomes an Allowed Claim. 10 19.3 Distributions on Account of Disputed Claims Once Allowed 11 The Disbursing Agent shall promptly make or direct distributions on account of any 12 Disputed Claim that has become an Allowed Claim following the Effective Date. 13 distributions shall be made pursuant to the provisions of the Plan governing the applicable Class. 14 Such distributions shall be based upon the distributions that would have been made to the holder 15 of such Claim under the Plan if the Disputed Claim had been an Allowed Claim on the Effective 16 Date in the amount ultimately Allowed. 17 ARTICLE XX 18 Such CONDITIONS TO CONFIRMATION AND CONSUMMATION OF THE PLAN 19 20.1 20 The following are conditions precedent to Confirmation, each of which must be satisfied 21 or waived: 22 (a) Conditions to Confirmation the Disclosure Statement shall have been approved by way of a Final Order 23 entered by the Bankruptcy Court finding that the Disclosure Statement contains adequate 24 information pursuant to Section 1125 of the Bankruptcy Code; 25 (b) 26 Bankruptcy Court; 27 (c) 28 the Bidding Procedures shall have been approved by a Final Order entered by the the Buyer, after an auction held pursuant to the Bidding Procedures, shall have been approved by the Bankruptcy Court as the Plan Sponsor; and 33
    • Case 8:13-bk-13163-SC 1 (d) Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 76 of 92 Desc the Bankruptcy Court shall have entered the Confirmation Order and the 2 Confirmation Order shall have become a Final Order and not have been modified, amended or 3 reversed. 4 20.2 5 The following conditions precedent must be satisfied or waived on or prior to the 6 Conditions to Effective Date Effective Date: 7 (a) All conditions to confirmation of the Plan shall remain satisfied or waived. 8 (b) Each order of the Bankruptcy Court referred to in Section 9.1 of the Plan shall 9 10 have become a Final Order and not have been withdrawn, modified, amended or reversed. (c) All documents and agreements to be executed on the Effective Date or otherwise 11 necessary to implement the Plan (not otherwise specified herein) shall be executed by the 12 necessary party or parties. 13 (d) The Reorganized Debtors shall have received any authorization, consent, 14 regulatory approval, ruling, letter, opinion, or document that may be necessary to implement the 15 Plan and that is required by law, regulation, or order. 16 (e) The Buyer shall have made the Buyer Payment. 17 (f) All other actions, documents and agreements necessary to implement the Plan as 18 of the Effective Date shall have been executed and delivered and all conditions precedent thereto 19 shall have been satisfied or waived by the party who has the right to waive such conditions. 20 (g) All corporate and other proceedings to be taken by the Debtors in connection with 21 the Plan and the consummation of the transactions contemplated by the Plan and all documents 22 incident thereto shall have been completed. 23 (h) The conditions precedent to the SPA shall have been satisfied. 24 (i) The Effective Date shall have occurred on or before August 30, 2013. 25 (j) All waiting periods imposed by applicable law (including, without limitation, 26 under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, if applicable) in 27 connection with the consummation of the Plan and transactions contemplated thereby shall have 28 expired or been terminated without any action having been taken by any court of competent 34
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 77 of 92 Desc 1 jurisdiction restraining, preventing or imposing materially adverse conditions upon such 2 transactions, and the Plan Proponents shall have received all material regulatory approvals 3 required for the consummation of the Plan and the transactions contemplated thereby and for the 4 Reorganized Debtors to continue to carry on its businesses without material change, each of 5 which approvals shall have become final. 6 ARTICLE XXI 7 RETENTION OF JURISDICTION 8 21.1 9 Notwithstanding entry of the Confirmation Order and occurrence of the Effective Date, 10 and except as otherwise ordered by the Bankruptcy Court, the Bankruptcy Court shall retain 11 exclusive jurisdiction over all matters arising out of, and related to, the Chapter 11 Case and the 12 Plan to the fullest extent permitted by law, including, among other things, jurisdiction to: 13 (a) Scope of Retention of Jurisdiction allow, disallow, determine, liquidate, classify, estimate, or establish the priority or 14 secured or unsecured status of any Claim or Interest not otherwise Allowed under the Plan (other 15 than personal injury or wrongful death Claims, unless agreed by the holder), including, without 16 limitation, the resolution of any Request for Payment of any Administrative Claim and the 17 resolution of any objections to the allowance or priority of Claims or Interests; 18 (b) hear and determine all applications for compensation and reimbursement of 19 expenses of Professionals under the Plan or under Sections 327, 328, 330, 331, 503(b), 1103, and 20 1129(a)(4) of the Bankruptcy Code; provided, however, that from and after the Effective Date, 21 the payment of the fees and expenses of the retained Professionals of the Reorganized Debtors 22 shall be made in the ordinary course of business and shall not be subject to the approval of the 23 Bankruptcy Court; 24 (c) hear and determine all matters with respect to the assumption or rejection of any 25 executory contract or unexpired lease to which the Debtors is a party or with respect to which the 26 Debtors may be liable, including, if necessary, the nature or amount of any required Cure or the 27 liquidation or allowance of any Claims arising therefrom; 28 (d) effectuate performance of and payments under the provisions of the Plan; 35
    • Case 8:13-bk-13163-SC 1 2 3 (e) Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 78 of 92 Desc hear and determine any and all adversary proceedings, motions, applications, and contested or litigated matters arising out of, under, or related to, the Chapter 11 Case; (f) enter such orders as may be necessary or appropriate to execute, implement, or 4 consummate the provisions of the Plan and all contracts, instruments, releases, and other 5 agreements or documents created in connection with the Plan, the Disclosure Statement, or the 6 Confirmation Order; 7 (g) hear and determine any matters arising in connection with or relating to the Plan, 8 the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, or other 9 agreement or document created in connection with the Plan, the Disclosure Statement, or the 10 11 Confirmation Order; (h) hear and determine disputes arising in connection with the interpretation, 12 implementation, consummation, or enforcement of the Plan, including disputes arising under 13 agreements, documents, or instruments executed in connection with the Plan; 14 (i) consider any modifications of the Plan, cure any defect or omission, or reconcile 15 any inconsistency in any order of the Bankruptcy Court, including, without limitation, the 16 Confirmation Order; 17 (j) issue injunctions, enter and implement other orders, or take such other actions as 18 may be necessary or appropriate to restrain interference by any entity with the implementation, 19 consummation, or enforcement of the Plan or the Confirmation Order; 20 21 22 23 24 25 26 27 28 (k) enter and implement such orders as may be necessary or appropriate if the Confirmation Order is for any reason reversed, stayed, revoked, modified, or vacated; (l) enforce all orders, judgments, injunctions, releases, exculpations, indemnifications, and rulings entered in connection with the Chapter 11 Case; (m) except as otherwise limited herein, recover all assets of the Debtors and property of the Estates, wherever located; (n) hear and determine matters concerning state, local, and federal taxes in accordance with Sections 346, 505, and 1146 of the Bankruptcy Code; (o) hear and determine all disputes involving the existence, nature, or scope of the 36
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 79 of 92 Desc Debtors’ discharge; 2 (p) hear and determine any matters arising in connection with or relating to the SPA, 3 including, without limitation, any disputes arising in connection with the interpretation, 4 implementation, consummation, or enforcement of the terms of the SPA; 5 (q) hear and determine such other matters as may be provided in the Confirmation 6 Order or as may be authorized under, or not inconsistent with, provisions of the Bankruptcy 7 Code; and 8 (r) enter a final decree closing the Chapter 11 Case. 9 21.2 Failure of the Bankruptcy Court to Exercise Jurisdiction 10 If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or 11 is otherwise without jurisdiction over any matter arising in, arising under, or related to the 12 Chapter 11 Case, including the matters set forth in Section 10.1 of the Plan, the provisions of this 13 Article X shall have no effect upon and shall not control, prohibit, or limit the exercise of 14 jurisdiction by any other court having jurisdiction with respect to such matter. 15 ARTICLE XXII 16 MISCELLANEOUS PROVISIONS 17 22.1 Professional Fee Claims; Expense Reimbursements 18 All final applications seeking allowance and payment of Professional Fee Claims 19 pursuant to Sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy Code and Substantial 20 Contribution Claims must be filed and served on the Reorganized Debtors, the Debtors, their 21 counsel, and other necessary parties in interest no later than sixty (60) days after the Effective 22 Date, unless otherwise ordered by the Bankruptcy Court. Objections to such applications must 23 be filed and served on the Reorganized Debtors, the Debtors, their counsel, and the requesting 24 Professional or other entity no later than twenty (20) days (or such longer period as may be 25 allowed by order of the Bankruptcy Court) after the date on which the applicable application was 26 served. 27 22.2 Administrative Claims Bar Date 28 All Requests for Payment of an Administrative Claim (other than as set forth in Sections 37
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 80 of 92 Desc 1 3.1(1) and 11.1 and this Section 11.2 of the Plan) must be filed with the Bankruptcy Court and 2 served on counsel for the Debtors and the Reorganized Debtors no later than forty-five (45) days 3 after the Effective Date; provided, that the DIP Claims shall be paid in accordance with Section 4 3.1(1) without the need for the DIP Lender to file a Request for Payment; provided, further, that 5 the Prepetition Adequate Protection Obligations, shall be paid in accordance with ¶ 12 of the DIP 6 Order without the need for Guggenheim to file a Request for Payment. The Debtors shall 7 provide supplemental notice of such filing deadline by mail with respect to known claimants and 8 by publication with respect to unknown claimants. 9 Administrative Claim by the applicable Claims Objection Deadline, such Administrative Claim 10 shall be deemed Allowed in the amount requested. In the event that the Debtors objects to an 11 Administrative Claim, the Bankruptcy Court shall determine the Allowed amount of such 12 Administrative Claim. Notwithstanding the foregoing, (a) no Request for Payment need be filed 13 with respect to an undisputed postpetition obligation which was paid or is payable by the Debtors 14 in the ordinary course of business; provided, however, that in no event shall a postpetition 15 obligation that is contingent or disputed and subject to liquidation through pending or 16 prospective litigation, including, but not limited to, alleged obligations arising from personal 17 injury, property damage, products liability, consumer complaints, employment law (excluding 18 claims arising under workers’ compensation law), secondary payor liability, or any other 19 disputed legal or equitable claim based on tort, statute, contract, equity, or common law, be 20 considered to be an obligation which is payable in the ordinary course of business; (b) no 21 Request for Payment need be filed with respect to Cure owing under an executory contract or 22 unexpired lease if (i) the amount of Cure is fixed or proposed to be fixed by the Confirmation 23 Order or other order of the Bankruptcy Court either pursuant to the Plan or pursuant to a motion 24 to assume and fix the amount of Cure filed by the Debtors and (ii) a timely objection asserting an 25 increased amount of Cure has been filed by the non-Debtor party to the subject contract or lease; 26 and (c) no Request for Payment need be filed with respect to fees payable pursuant to Section 27 1930 of Title 28 of the United States Code. 28 38 Unless the Debtors objects to an
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 81 of 92 Desc 1 22.3 Payment of Statutory Fees 2 All fees payable pursuant to Section 1930 of Title 28 of the United States Code, as 3 determined by the Bankruptcy Court at the Confirmation Hearing, shall be paid on or before the 4 Effective Date. All such fees that arise after the Effective Date shall be paid by the Debtors. 5 The obligation of the Debtors to pay such fees shall continue only until the Chapter 11 Case is 6 closed, dismissed, or converted. 7 22.4 Modifications and Amendments 8 The Plan Proponents may alter, amend, or modify the Plan under Section 1127(a) of the 9 Bankruptcy Code at any time prior to the Confirmation Date. After the Confirmation Date and 10 prior to substantial consummation of the Plan, as defined in Section 1101(2) of the Bankruptcy 11 Code, the Plan Proponents may institute proceedings in the Bankruptcy Court to remedy any 12 defect or omission or reconcile any inconsistencies in the Plan or the Confirmation Order; 13 provided, however, that prior notice of such proceedings shall be served to the extent required by 14 the Bankruptcy Rules or order of the Bankruptcy Court. 15 22.5 Severability of Plan Provisions 16 If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy 17 Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter 18 and interpret such term or provision to make it valid or enforceable to the maximum extent 19 practicable, consistent with the original purpose of the term or provision held to be invalid, void, 20 or unenforceable, and such term or provision shall then be applicable as altered or interpreted. 21 Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and 22 provisions of the Plan shall remain in full force and effect and shall in no way be affected, 23 impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order 24 shall constitute a judicial determination and shall provide that each term and provision of the 25 Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and 26 enforceable pursuant to its terms. 27 22.6 Successors and Assigns and Binding Effect 28 The rights, benefits, and obligations of any Person named or referred to in the Plan shall 39
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 82 of 92 Desc 1 be binding on, and shall inure to the benefit of, any heir, executor, administrator, personal 2 representative, successor, or assign of such entity, including, but not limited to, the Reorganized 3 Debtors and all other parties in interest in the Chapter 11 Case and any subsequent bankruptcy 4 case involving the Debtors. 5 22.7 6 From and after the Effective Date, the Reorganized Debtors may compromise and settle 7 various Claims against it and/or Retained Claims and other Claims that it may have against other 8 Persons without any further approval by the Bankruptcy Court. 9 22.8 Compromises and Settlements Releases and Satisfaction of Subordination Rights 10 All Claims against the Debtors and all rights and claims between or among the holders of 11 Claims relating in any manner whatsoever to any alleged subordination rights shall be deemed 12 satisfied by the distributions under, described in, contemplated by, and/or implemented in the 13 Plan. Distributions under, described in, contemplated by, and/or implemented by the Plan to the 14 various Classes of Claims hereunder shall not be subject to levy, garnishment, attachment, or like 15 legal process by any holder of a Claim by reason of any alleged subordination rights or 16 otherwise, so that each holder of a Claim shall have and receive the benefit of the distributions in 17 the manner set forth in the Plan. 18 22.9 Releases and Related Matters 19 (a) Debtors Releases 20 On the Effective Date, the Debtors shall release all claims, rights and causes 21 of action, including actions under Chapter 5 of the Bankruptcy Code, against (1) the 22 current directors, officers and employees of the Debtors (other than for money borrowed 23 from or owed to the Debtors by any such directors, officers or employees as set forth in the 24 Debtors’ books and records) and the Debtors’ agents and advisors (including lawyers), (2) 25 Guggenheim, (3) the DIP Lender, (4) the Lenders, and (5) the Creditors’ Committee and its 26 advisors (solely in their capacity as such) (the parties described in Section 11.9(a), 27 collectively “Released Parties”), so long as such releases do not vitiate or impair coverage 28 under any insurance policies related to the Property. 40
    • Case 8:13-bk-13163-SC 1 (b) Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 83 of 92 Desc Third Party Releases 2 As of the Effective Date, for good and valuable consideration, the adequacy 3 of which is hereby confirmed, to the maximum extent permitted by law, each holder of any 4 Claim or Interest that has indicated on its Ballot its agreement to grant the release 5 contained in section 11.9(b) of the Plan (each a “Releasing Party”) shall be deemed to 6 forever release, waive, and discharge all claims, obligations, suits, judgments, damages, 7 demands, debts, rights, causes of action, and liabilities whatsoever, against the Released 8 Parties arising from or related to the Debtors’ pre- and/or post-petition actions, omissions 9 or liabilities with respect to the Property, the Prepetition Credit Agreement (as defined in 10 11 the DIP Order) or the DIP Credit Agreement. (c) Waiver of Statutory Limitations on Releases 12 THE LAWS OF SOME STATES (FOR EXAMPLE, CALIFORNIA CIVIL 13 CODE §1542) PROVIDE, IN WORDS OR SUBSTANCE THAT A GENERAL RELEASE 14 DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT 15 KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING 16 THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY 17 AFFECTED HIS DECISION TO RELEASE. THE RELEASING PARTIES IN EACH OF 18 SECTIONS 11.9(a), (b), AND (c) OF THE PLAN ARE DEEMED TO HAVE WAIVED 19 ANY RIGHTS THEY MAY HAVE UNDER SUCH STATE LAWS AS WELL AS UNDER 20 ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. 21 22.10 Discharge of the Debtors 22 (a) Except as otherwise provided herein or in the Confirmation Order, all 23 consideration distributed under the Plan shall be in exchange for, and in complete satisfaction, 24 settlement, discharge, and release of, all Claims of any nature whatsoever against the Debtors or 25 any of its assets or properties and, regardless of whether any property shall have been abandoned 26 by order of the Bankruptcy Court, retained, or distributed pursuant to the Plan on account of such 27 Claims; and upon the Effective Date, except as otherwise provided herein or in the Confirmation 28 Order, the Debtors shall be deemed discharged and released under Section 1141(d)(1)(A) of the 41
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 84 of 92 Desc 1 Bankruptcy Code from any and all Claims, including, but not limited to, demands and liabilities 2 that arose before the Confirmation Date, and all debts of the kind specified in Section 502 of the 3 Bankruptcy Code, whether or not (i) a Proof of Claim based upon such debt is filed or deemed 4 filed under Section 501 of the Bankruptcy Code, (ii) a Claim based upon such debt is Allowed 5 under Section 502 of the Bankruptcy Code, or (iii) the holder of a Claim based upon such debt 6 accepted the Plan. 7 (b) As of the Effective Date, except as provided in the Confirmation Order, all 8 Persons shall be precluded from asserting against the Debtors or the Reorganized Debtors, or any 9 of their respective officers, directors, successors, agents, affiliates or professionals (including 10 lawyers) any other or further Claims, debts, rights, causes of action, liabilities, or Interests 11 relating to the Debtors based upon any act, omission, transaction, or other activity of any nature 12 that occurred prior to the Confirmation Date related to the Debtors or the Estates. In accordance 13 with the foregoing, except as provided in the Plan or the Confirmation Order, the Confirmation 14 Order shall be a judicial determination of discharge of all such Claims and other debts and 15 liabilities against the Debtors and termination of all Interests, pursuant to Sections 524 and 1141 16 of the Bankruptcy Code, and such discharge shall void any judgment obtained against the 17 Debtors at any time, to the extent that such judgment relates to a discharged Claim or terminated 18 Interest. 19 (c) The discharge of the Debtors pursuant to the Plan is not intended to limit in any 20 way the Debtors’ insurance coverage or to deprive any third party of any rights to such coverage 21 that may otherwise exist. 22 22.11 Injunction 23 (a) Except as provided in the Confirmation Order, as of the Effective Date, all 24 Persons that have held, currently hold, may hold, or allege that they hold, a Claim or other 25 debt or liability that is discharged or an Interest or other right of an equity security holder 26 that is terminated pursuant to the terms of the Plan are permanently enjoined from taking 27 any of the following actions against the Debtors, the Reorganized Debtors, and any of their 28 respective officers, directors, successors, agents, affiliates or professionals (including 42
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 85 of 92 Desc 1 lawyers), subsidiaries or their property on account of any such discharged Claims, debts, 2 or liabilities or terminated interests or rights: 3 manner or in any place, any action or other proceeding; (ii) enforcing, attaching, collecting, 4 or recovering in any manner or in any place any judgment, award, decree, or order; (iii) 5 creating, perfecting, or enforcing any lien or encumbrance in any manner or in any place; 6 or (iv) commencing or continuing any action, in each such case in any manner or in any 7 place or against any Person that does not comply with or is inconsistent with the provisions 8 of the Plan. 9 (b) (i) commencing or continuing, in any As of the Effective Date, all Persons that have held, currently hold, or may 10 hold, a claim, obligation, suit, judgment, damage, demand, debt, right, cause of action, or 11 liability that is released pursuant to Section 11.9 of the Plan or is subject to exculpation 12 pursuant to Section 11.12 of the Plan are permanently enjoined from taking any of the 13 following actions on account of such released claims, obligations, suits, judgments, 14 damages, demands, debts, rights, causes of action, or liabilities or terminated Interests or 15 rights: (i) commencing or continuing, in any manner or in any place, any action or other 16 proceeding; (ii) enforcing, attaching, collecting, or recovering in any manner or in any 17 place any judgment, award, decree, or order; (iii) creating, perfecting, or enforcing any lien 18 or encumbrance in any manner or in any place; or (iv) commencing or continuing any 19 action, in each such case in any manner or in any place or against any Person that does not 20 comply with or is inconsistent with the provisions of the Plan. 21 (c) Without limiting the effect of the foregoing upon any person, by accepting 22 distributions pursuant to the Plan, each holder of an Allowed Claim receiving distributions 23 pursuant to the Plan shall be deemed to have specifically consented to the injunctions set forth in 24 this Section 11.11. 25 22.12 Exculpation and Limitation of Liability 26 (a) None of (i) the Debtors, (ii) the Reorganized Debtors, (iii) the DIP Lender, 27 (iv) Guggenheim, (v) the Lenders, (vi) the Creditors’ Committee, or (vii) any of the 28 respective current or former members, successors, directors, officers, employees, advisors, 43
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 86 of 92 Desc 1 attorneys, professionals, agents, partners, stockholders, or affiliates of the foregoing (but 2 solely in their respective capacities as such), shall have or incur any liability to any holder 3 of a Claim or an Interest, or any other party in interest, or any of their respective 4 members, successors, directors, officers, employees, advisors, attorneys, professionals, 5 agents, partners, stockholders, or affiliates, or any of their respective successors or assigns, 6 for any act or omission in connection with, relating to, or arising out of, the Chapter 11 7 Case, the formulation, negotiation, or implementation of the Plan, the solicitation of 8 acceptances of the Plan, the pursuit of Confirmation of the Plan, the Confirmation of the 9 Plan, the consummation of the Plan, or the administration of the Plan or the property to be 10 distributed under the Plan, except for acts or omissions which are the result of fraud, gross 11 negligence, or willful misconduct, or willful violation of federal or state securities laws or 12 the Internal Revenue Code (in each case as determined by a Final Order), and in all 13 respects shall be entitled to reasonably rely upon the advice of counsel with respect to their 14 duties and responsibilities under the Plan. 15 (b) Notwithstanding any other provision of the Plan, no holder of a Claim or an 16 Interest, no other party in interest, none of their respective members, directors, officers, 17 employees, advisors, attorneys, professionals, agents, partners, stockholders, or affiliates, 18 and none of their respective successors or assigns, shall have any right of action against (i) 19 the Debtors, (ii) the Reorganized Debtors, (iii) the DIP Lender, (iv) Guggenheim, (v) the 20 Lenders, (vi) the Creditors’ Committee, or (vii) any of the respective current or former 21 members, directors, officers, employees, advisors, attorneys, professionals, agents, 22 partners, stockholders, or affiliates of the foregoing (but solely in their respective capacities 23 as such), for any act or omission in connection with, relating to, or arising out of, the 24 Chapter 11 Case, the formulation, negotiation, or implementation of the Plan, solicitation 25 of acceptances of the Plan, the pursuit of Confirmation of the Plan, the Confirmation of the 26 Plan, the consummation of the Plan, or the administration of the Plan or the property to be 27 distributed under the Plan, except for acts or omissions which are the result of fraud, or 28 willful misconduct or willful violation of federal or state securities laws or the Internal 44
    • Case 8:13-bk-13163-SC 1 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 87 of 92 Desc Revenue Code (in each case as determined by a Final Order). 2 22.13 Term of Injunctions or Stays 3 Unless otherwise provided herein or in the Confirmation Order, all injunctions or stays 4 provided for in the Chapter 11 Case under Sections 105 or 362 of the Bankruptcy Code or 5 otherwise, and extant on the Confirmation Date (excluding any injunctions or stays contained in 6 the Plan or the Confirmation Order), shall remain in full force and effect until the Effective Date. 7 22.14 Revocation, Withdrawal, or Non-Consummation 8 The Plan Proponents reserves the right to revoke or withdraw the Plan at any time prior to 9 the Confirmation Date and to file subsequent plans of reorganization. If the Plan Proponents 10 revokes or withdraws the Plan in its entirety, or if Confirmation or the Effective Date does not 11 occur, then (a) the Plan shall be null and void in all respects, (b) any settlement or compromise 12 embodied in the Plan (including the fixing or limiting to an amount certain any Claim or Class of 13 Claims), assumption or rejection of executory contracts or unexpired leases effected by the Plan, 14 and any document or agreement executed pursuant to the Plan shall be deemed null and void, 15 and (c) nothing contained in the Plan, and no acts taken in preparation for consummation of the 16 Plan, shall (i) constitute or be deemed to constitute a waiver or release of any Claims by or 17 against, or any Interests in, the Debtors or any other Person, (ii) prejudice in any manner the 18 rights of the Debtors or any Person in any further proceedings involving the Debtors, or (iii) 19 constitute an admission of any sort by the Debtors or any other Person. 20 22.15 Dissolution of Creditors’ Committee 21 On the Effective Date, the Creditors’ Committee shall dissolve and its members shall be 22 released and discharged from all duties and obligations arising from or related to the Chapter 11 23 Case. The Professionals retained by the Creditors’ Committee and the members thereof shall not 24 be entitled to compensation or reimbursement of expenses for any services rendered after the 25 Effective Date, except as may be necessary to file applications pursuant to Section 11.1 of the 26 Plan. 27 22.16 Computation of Time 28 In computing any period of time prescribed or allowed by the Plan, the provisions of Rule 45
    • Case 8:13-bk-13163-SC Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 88 of 92 Desc
    • Case 8:13-bk-13163-SC 1 2 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 89 of 92 Desc PROOF OF SERVICE OF DOCUMENT I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 10250 Constellation Boulevard, Suite 1700, Los Angeles, CA 90067 3 4 5 6 A true and correct copy of the foregoing document entitled: NOTICE OF MOTION AND MOTION PURSUANT TO SECTIONS 105(a), 363(b) AND 1125(b) OF THE BANKRUPTCY CODE AND BANKRUPTCY RULE 6004 FOR AN ORDER AUTHORIZING THE DEBTORS AND OTHER PARTIES THERETO TO ENTER INTO PLAN SUPPORT AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF WILLIAM SCOTTINI IN SUPPORT THEREOF will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On June 19, 2013, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below:                 Jennifer K Brooks jennifer.brooks@kattenlaw.com, ecf.lax.docket@kattenlaw.com Nancy S Goldenberg nancy.goldenberg@usdoj.gov Robert A Klyman robert.klyman@lw.com, kathryn.bowman@lw.com;sabina.jacobs@lw.com Mette H Kurth kurth.mette@arentfox.com Kristin R Lamar nclgign@hotmail.com Shawn C Luna sluna@sidley.com Alan I Nahmias anahmias@mbnlawyers.com, jdale@mirmanbubman.com David L. Neale dln@lnbrb.com Juliet Y Oh jyo@lnbrb.com, jyo@lnbrb.com Stefan Perovich stefan.perovich@kyl.com David M Poitras dpoitras@jmbm.com, bt@jmbm.com Russell H Rapoport rrapoport@mbnlawyers.com Lindsey L Smith lls@lnbyb.com Richard A Solomon richard@sgsslaw.com United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov Joshua F Young jyoung@gslaw.org, djury@usw.org 2. SERVED BY UNITED STATES MAIL: On June 19, 2013, I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. 22 Service information continued on attached page 23 24 25 26 27 3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on June 19, 2013 I served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed. 28 This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 2012 F 9013-3.1.PROOF.SERVICE
    • Case 8:13-bk-13163-SC 1 2 3 4 5 6 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 90 of 92 Desc Served via Attorney Service Honorable Scott Clarkson U.S. Bankruptcy Court 411 West Fourth Street, Room 5113 Santa Ana, CA 92701-4593 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. June 19, 2013 Date Stephanie Reichert Type Name /s/ Stephanie Reichert Signature 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 2012 F 9013-3.1.PROOF.SERVICE
    • Case 8:13-bk-13163-SC   Evergreen Oil, Inc. Evergreen Environmental Services, Inc. Secured, Committee, OUST, RSN Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 91 of 92 2. SERVED BY U.S. MAIL: Desc U.S. Trustee - Santa Ana 411 West Fourth Street Suite 9041 Santa Ana, CA 92701-8000 Committee Counsel Alan Nahmias, Esq. Mirman, Bubman & Nahmias, LLP 21860 Burbank Blvd, Suite 360 Woodland Hills, CA 91367 Petrochem Insulation, Inc. Attorney Rebecca Lessley 215 N. Marengo Ave., 3rd Floor Pasadena, CA 91101 Telstar Instruments Attn: Roberts S. Marston, Jr. & June Johnson 1717 Solano Way, Unit 34 Concord, CA 94520 VERSA Engineering & Technology, Inc. Attn: Fred Fong 1001 Galaxy Way 5210 Concord, CA 94520 Mashburn Transportation Services, Inc. Attn: Michael Mashburn PO Box 66 Taft, CA 93268 People Core Inc. 1106 Legacy Lane West Chester, PA 19382 Petrochem Insulation, Inc. Attn: Stephen Louis 110 Corporate Place Vallejo, CA 94590 Counsel for DIP Lender SIDLEY AUSTIN LLP Lee Attanasio & Shawn Luna 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010 People Core Inc. Attn: Edward Topolewski Kline & Topolewski, PC 1601 Market St., Suite 2600 Philadelphia, PA 19103 Bank Of The West 300 South Grand Ave., 5th Floor Los Angeles, CA 90071 Guggenheim Corporate Funding, LLC 135 East 57th Street New York, NY 10022 Bank Of The West 2035 Fresno St. 6th Floor Fresno, CA 93721 US Bancorp 1310 Madrid Street Marshall, MN 56258 De Lage Landen Financial Services, Inc. 1111 Old Eagle School Road Wayne, PA 19087 Doosan Global Finance 1111 Old Eagle School Road Wayne, PA 19087 Great America Leasing Corporation 625 First Street Cedar Rapids, IA 52401-2030 Wells Fargo Bank, N.A. 300 Tri-State International Suite 400 Lincolnshire, IL 60069 Employment Development Department PO Box 826880 Sacramento, CA 94280 TIMEC Co. Inc. dba Transfield Services Americas Resources and Energy 1330 Post Oak Blvd, Ste 1250 Houston, TX 77056 Les Schwab Warehouse Center, Inc. PO Box 5350 Bend, OR 97708 U.S. Bank Equipment Finance 1310 Madrid Street Marshall, MN 56258 Mary Ann Kilgore Union Pacific Railroad Company 1400 Douglas Street, STOP 1580 Omaha, Nebraska 68179 State of California Department of Toxic Substance Control 330 South Spring St., 5th FL-North Tower Los Angeles, CA 90013 Alameda County Tax Collector Unsecured Taxes Division 1221 Oak Street Oakland, CA 94612 Counsel for DeMenno-Kerdoon LATHAM & WATKINS LLP Robert Klyman & Ted Dillman 355 South Grand Avenue Los Angeles, CA 90071-1560 Shawn Lanka Union Pacific Railroad Company 1400 Douglas Street, STOP 1580 Omaha, Nebraska 68179 Lee S. Attanasio, Esq. Shawn C. Luna, Esq. SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013-1010
    • Case 8:13-bk-13163-SC Counsel for TIMEC CO., INC. Stefan Perovich Keesal, Young & Logan 400 Oceangate Long Beach, CA 90802 Doc 178 Filed 06/19/13 Entered 06/19/13 17:07:41 Main Document Page 92 of 92 Kristin Lamar New Chapter Law Group 2121 Palomar Airport Road, Suite 110 Carlsbad, CA 92011 Desc Counsel for Clean Harbors Michael Malm & Daniel T. Janis Davis, Malm & D'Agostine, P.C. One Boston Place Boston, MA 02108