Attached files
file | filename |
---|---|
8-K - CROSS CANYON ENERGY CORP. | e606369_8k-cross.htm |
EX-2.2 - CROSS CANYON ENERGY CORP. | e606369_ex2-2.htm |
EX-99.1 - CROSS CANYON ENERGY CORP. | e606369_ex99-1.htm |
IN
THE UNITED STATES BANKRUPTCY COURT
FOR
THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN
RE:
|
§
|
CASE
NO. 10-30747
|
§
|
||
CROSS
CANYON ENERGY CORP.,
|
§
|
|
§
|
||
Debtor.
|
§
|
(Chapter
11)
|
§
|
||
§
|
||
PREPACKAGED
PLAN OF REORGANIZATION
OF
CROSS CANYON ENERGY CORP.
PURSUANT TO CHAPTER 11 OF
THE BANKRUPTCY CODE
Rhett
G. Campbell
Texas
State Bar No.03714500
THOMPSON
& KNIGHT LLP
333 Clay
Street, Suite 3300
Houston,
Texas 77002
Telephone: 713.654.8111
and
Ira
L. Herman
Texas
State Bar No. 24063314
Jennifer
A. Christian
THOMPSON
& KNIGHT LLP
919 Third
Avenue, 39th Floor
New York,
New York 10022-3915
Telephone: 212.751.3001
Attorneys
for Cross Canyon Energy Corp.
DATED: January 28,
2010
TABLE
OF CONTENTS
ARTICLE
I DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION OF
TIME
|
1
|
|
A.
|
Definitions
|
1
|
B.
|
Scope
of Definitions; Rules of Construction
|
7
|
C.
|
Rules
of Interpretation
|
7
|
D.
|
Computation
of Time
|
9
|
ARTICLE
II CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
|
9
|
|
A.
|
Classification
|
9
|
B.
|
Classes
and Treatment of Claims and Interests Therein
|
9
|
C.
|
Aggregation
|
11
|
D.
|
Alternative
Treatment
|
11
|
ARTICLE
III MEANS FOR IMPLEMENTATION OF THE PLAN
|
11
|
|
A.
|
Credit
Facility
|
11
|
B.
|
Satisfaction
of Allowed Claims
|
12
|
C.
|
Cancellation
of Interests; Issuance of New Common Stock
|
12
|
D.
|
Restructuring
Transactions
|
12
|
E.
|
Continued
Corporate Existence; Certificates of Incorporation and
By-laws
|
13
|
F.
|
Authority
|
13
|
G.
|
Substantial
Consummation
|
13
|
H.
|
Cancellation
of Instruments and Agreements
|
13
|
I.
|
Directors
and Officers
|
14
|
J.
|
Board
Observation
|
14
|
K.
|
Releases
|
14
|
L.
|
Certain
Retained Causes of Action
|
14
|
M.
|
Exemption
from Certain Transfer Taxes
|
15
|
N.
|
Assignment
of Litigation Claims
|
15
|
ARTICLE
IV PROVISIONS GOVERNING DISTRIBUTIONS
|
15
|
|
A.
|
Delivery
of Distributions; Undeliverable or Unclaimed Distributions
|
15
|
B.
|
Withholding
and Reporting Requirements
|
16
|
C.
|
Setoffs
|
16
|
i
ARTICLE
V TREATMENT OF EXECUTORY CONTRACTS, UNEXPIRED LEASES AND OTHER
AGREEMENTS
|
17
|
|
A.
|
Assumption/Rejection
|
17
|
B.
|
Pass-Through
|
17
|
C.
|
Oil
and Gas Leases
|
17
|
D.
|
Assumed
Executory Contracts and Unexpired Leases
|
18
|
E.
|
Preexisting
Obligations to the Debtor Under Executory Contracts and
|
|
Unexpired
Leases
|
18
|
|
F.
|
Assumed
Contracts and Leases
|
18
|
G.
|
Reservation
of Rights
|
18
|
H.
|
Nonoccurrence
of Effective Date
|
19
|
I.
|
Additional
Cure Provisions
|
19
|
J.
|
Claims
Based on Rejection of Executory Contracts and Unexpired
Leases
|
19
|
K.
|
Compensation,
Benefit, and Pension Programs
|
19
|
L.
|
Indemnification
Obligations
|
20
|
M.
|
Treatment
of Change of Control Provisions
|
20
|
ARTICLE
VI ACCEPTANCE OR REJECTION OF THE PLAN
|
20
|
|
A.
|
Classes
Entitled To Vote
|
20
|
B.
|
Acceptance
by Impaired Classes
|
20
|
C.
|
Cramdown
|
21
|
ARTICLE
VII CONDITIONS PRECEDENT TO PLAN’S CONFIRMATION AND EFFECTIVE
DATE
|
21
|
|
A.
|
Conditions
Precedent to Confirmation
|
21
|
B.
|
Conditions
Precedent to Effective Date
|
21
|
C.
|
Waiver
of Conditions
|
22
|
ARTICLE
VIII MODIFICATION; WITHDRAWAL
|
23
|
|
ARTICLE
IX RETENTION OF JURISDICTION
|
23
|
|
ARTICLE
X EFFECTS OF CONFIRMATION
|
24
|
|
A.
|
Binding
Effect and Discharge of the Debtor
|
24
|
B.
|
Vesting
|
24
|
C.
|
Exculpation
and Limitation of Liability
|
25
|
D.
|
Good
Faith
|
25
|
E.
|
Injunction
|
25
|
ii
ARTICLE
XI MISCELLANEOUS PROVISIONS
|
25
|
|
A.
|
Objections
to Claims
|
26
|
B.
|
Payment
of Statutory Fees
|
26
|
C.
|
Severability
of Plan Provisions
|
26
|
D.
|
Successors
and Assigns
|
26
|
E.
|
Term
of Injunctions or Stays
|
26
|
F.
|
Notices
to Debtor
|
26
|
G.
|
Governing
Law
|
27
|
iii
INTRODUCTION
Cross
Canyon Energy Corp., a Nevada corporation (“Cross Canyon”),
proposes this prepackaged reorganization plan (as may be amended, the “Plan”) pursuant to
Chapter 11 of Title 11 of the United States Code. Reference is made
hereby to the Disclosure Statement (as defined herein) distributed with this
Plan. The Disclosure Statement, among other things, describes (a) the
treatment of claims and interests under the Plan, including a description of
securities to be issued under the Plan to satisfy certain claims, (b) various
matters relating to confirmation of the Plan, and (c) financial and other
information regarding Cross Canyon. YOU ARE URGED TO READ THE PLAN AND
DISCLOSURE STATEMENT WITH CARE TO EVALUATE THE LEGAL EFFECT OF THE PLAN ON YOUR
RIGHTS AND CONSULT WITH COUNSEL OF YOUR CHOICE.
ARTICLE
I
DEFINITIONS,
RULES OF INTERPRETATION,
AND
COMPUTATION OF TIME
A. Definitions
1.1 “Administrative
Agent” means CIT Capital USA, Inc., as administrative agent with regard to the
CIT Revolving Loan and the CIT Term Loan.
1.2 “Administrative
Claim” means a Claim for payment of an expense of a kind specified in sections
503(b) and 1114(e)(2) of the Bankruptcy Code and entitled to priority under
section 507(a)(1) of the Bankruptcy Code, including (a) the actual and necessary
costs and expenses of preserving property of the Estate, including operating
expenses, plus wages, salaries, and commissions, and (b) all fees and charges
assessed against the Estate under Section 1930 of title 28, United States
Code.
1.3 “Allowance
Date” means the later of (a) the Effective Date and (b) the date a claim becomes
an Allowed Claim.
1.4 “Allowed”
means (a) a Claim (other than an Administrative Claim) that (i) has been allowed
by a Final Order, (ii) is listed on the Schedules filed by the Debtor, other
than as unliquidated, contingent, or disputed, in an amount greater than zero,
(iii) is the subject of a timely filed proof of claim as to which no objection
has been filed (either by way of objection or amendment to the Schedules) within
the periods fixed by the Bankruptcy Code or by any order of the Bankruptcy
Court, or (iv) is expressly allowed in a liquidated amount by the Plan; and (b)
any Administrative Claim as to which a timely request for payment has been made
in accordance with this Plan (if such written request is required) and such
request has been allowed by a Final Order; and (c) any Interest that, as of the
Petition Date, appears of record in the equity register maintained by or on
behalf of the Debtor.
1.5 “Bankruptcy
Code” means the Bankruptcy Reform Act of 1978, as codified in title 11 of the
United States Code, as now in effect or hereafter amended.
1.6 “Bankruptcy
Court” means the United States Bankruptcy Court for the Southern District of
Texas, Corpus Christi Division.
1
1.7 “Bankruptcy
Rules” means the Federal Rules of Bankruptcy Procedure and the Official
Bankruptcy Forms, and the Federal Rules of Civil Procedure and the local rules
of the Bankruptcy Court, as applicable to Chapter 11 cases or proceedings
therein, together with all amendments and modifications thereto.
1.8 “Board”
means the Board of Directors of the Reorganized Debtor.
1.9 “Board
Observation Agreement” means that certain board observation agreement, between
the Debtor and CIT, pursuant to which CIT may, among other things, observe and
participate in meetings of the board of directors of the Debtor.
1.10 “Business
Day” means any day, excluding Saturdays, Sundays or “legal holidays” (as defined
in Fed. R. Bankr. P. 9006(a)), on which commercial banks are open for business
in New York, New York.
1.11 “Cash”
means legal tender of the United States.
1.12 “Causes
of Action” means all rights, claims, causes of action, defenses, debts, demands,
damages, obligations, and liabilities of any kind or nature under contract, at
law or in equity, known or unknown, contingent or matured, liquidated or
unliquidated, and all rights and remedies with respect thereto.
1.13 “Certificate
of Incorporation” has the meaning set forth in Article III of this
Plan.
1.14 “Chapter
11 Case” means the Chapter 11 case of the Debtor.
1.15 “Claim”
means a claim within the meaning of section 101(5) of the Bankruptcy
Code.
1.16 “Claims
Bar Date” means the last day for filing proofs of claim on account of
pre-petition claims in this Chapter 11 Case.
1.17 “Class”
means a class of Claims or Interests listed in the Plan.
1.18 “CIT”
means the CIT Group/Equity Investments, Inc., a New Jersey
corporation.
1.19 “CIT
First Lien Credit Agreement” means the Amended and Restated Credit Agreement,
dated September 2, 2008.
1.20 “CIT
First Lien Lender Claims” means the obligations of the Debtor under the CIT
First Lien Credit Agreement.
1.21 “CIT
First Lien Lenders” means the Administrative Agent and other lenders under the
CIT First Lien Credit Agreement.
1.22 “CIT
Second Lien Credit Agreement” means the Second Lien Term Loan Agreement, dated
September 2, 2008.
2
1.23 “CIT
Second Lien Lender Claims” means the obligations of the Debtor under the CIT
Second Lien Credit Agreement.
1.24
“CIT Second Lien Lenders” means the Administrative Agent and other lenders under
the CIT Second Lien Credit Agreement.
1.25 “CIT
Revolving Loan” means the loans and advances made by the CIT First Lien Lenders
pursuant to the CIT First Lien Credit Agreement.
1.26 “CIT
Term Loan” means the loans and advances made by the CIT Second Lien Lenders
pursuant to the CIT Second Lien Credit Agreement.
1.27 “Collateral”
means any property or interest in property of the Estate subject to a Lien to
secure the payment or performance of a Claim.
1.28 “Collateral
Documents” means the agreements, documents, and filings related to the CIT First
Lien Credit Agreement and CIT Second Lien Credit Agreement creating Liens in
favor of the Administrative Agents thereunder.
1.29 “Common
Shares” means the common stock, par value $________, of the Debtor.
1.30 “Common
Stock Interest” means the Debtor’s Common Shares on the [record
date].
1.31 “Confirmation”
means the entry by the Bankruptcy Court of the Confirmation Order.
1.32 “Confirmation
Date” means the date the Bankruptcy Court enters the Confirmation
Order.
1.33 “Confirmation
Hearing” means the hearing to consider confirmation of the Plan under section
1128 of the Bankruptcy Code, as such hearing may be adjourned or continued from
time to time.
1.34 “Confirmation
Order” means the order of the Bankruptcy Court confirming this Plan pursuant to
section 1129 of the Bankruptcy Code.
1.35 “Cross
Canyon” shall have the meaning set forth in the Introduction to this
Plan.
1.36 “Cure”
means the payment of Cash by the Debtor or distribution of other property (as
the parties may agree or the Bankruptcy Court may order) necessary to cure
defaults under an executory contract or unexpired lease to permit the Debtor to
assume such contract or unexpired lease pursuant to section 365(a) of the
Bankruptcy Code.
1.37 “Debtor”
means Cross Canyon, as debtor and debtor-in-possession, under sections 1107 and
1108 of the Bankruptcy Code.
1.38 “Disclosure
Statement” means the written document described in section 1125 of the
Bankruptcy Code and relating to the Plan, as amended, supplemented or modified
from time to time, and distributed in accordance with section 1125 of the
Bankruptcy Code and Bankruptcy Rule 3018.
3
1.39 “Effective
Date” means the first Business Day on which (a) all conditions precedent in
Article VII, Section B of the Plan have been satisfied or waived, and (b) either
(i) the Confirmation Order is a Final Order, or (ii) the date selected by the
Debtor after the entry of the Confirmation Order, provided that no stay is then
in effect.
1.40 “Estate”
means the property of the Debtor wherever located and by whomever held, as
provided under section 541 of the Bankruptcy Code.
1.41 “Exit
Facility” means the new notes in an aggregate principal amount of $10
million.
1.42 “Filed
Claims” means those certain proofs of claim filed with the Clerk of the
Bankruptcy Court in connection with the Chapter 11 Case.
1.43 “Final
Order” means (a) an order or judgment of the Bankruptcy Court as to which (i)
the time to appeal, petition for certiorari, or file a motion
for reargument or rehearing has expired, and (ii) no appeal, petition for certiorari, or motion for
reargument or rehearing shall then be pending, or (b) in the event an appeal,
petition for certiorari, or motion for
reargument or rehearing has been sought, the order or judgment of the Bankruptcy
Court shall have been (i) affirmed by the highest court to which such order was
appealed or from which reargument or rehearing was sought, or certiorari has been denied,
and (ii) the time to take any further appeal, petition for certiorari or other
proceedings for reargument or rehearing shall have expired; provided, however, that no
order shall fail to be a Final Order solely because of the possibility that a
motion pursuant to Rule 60 of the Federal Rules of Civil Procedure or a motion
under section 1144 of the Bankruptcy Code may be filed with respect to such
order.
1.44 “Findings
and Conclusions” means the findings and conclusions entered by the Bankruptcy
Court pursuant to Bankruptcy Rule 7052 in relation to the Confirmation
Order.
1.45 “General
Unsecured Claim” means any Claim against the Debtor that is neither secured by a
Lien nor entitled to priority under the Bankruptcy Code or any order of the
Court, including, without limitation, any Claim arising from the rejection of an
executory contract or unexpired lease under section 365 of the Bankruptcy
Code.
1.46 “Governmental
Claims Bar Date” means the last day for filing a Claim in this Chapter 11 Case
by a governmental unit.
1.47 “Holder”
means the beneficial holder of any Claim or Interest.
1.48 “Impaired”
has the meaning ascribed to it by section 1124 of the Bankruptcy
Code.
1.49 “Interest”
means the legal, equitable, contractual and other rights of any Person with
respect to any shares in the Debtor or any other right thereto (or relating
thereto), including, but not limited to, common stock, preferred stock, stock
options and warrants.
1.50 “Lien”
means what has been ascribed to the term by section 101(37) of the Bankruptcy
Code.
4
1.51 “Material Adverse Change” means a material adverse
change in or material adverse effect on (a) the business, operations, property
or condition (financial or otherwise) of the Debtor and its subsidiaries taken
as a whole or (b) the ability of the Debtor or any of its subsidiaries to
perform any of its obligations under the Plan, the Plan Implementation
Certificate, or any Plan Supplement.
1.52 “New
Common Stock” means the new common units of the Reorganized Debtor to be issued
under the Plan.
1.53 “New
Junior Preferred Stock” means the new series of junior preferred stock,
subordinated to the New Senior Preferred Stock, but senior to the New Common
Stock, of the Reorganized Debtor.
1.54 “New
Security Agreement” means such documents as shall be required to secure
repayment of the New Senior Secured Credit Facility, in the form attached to the
Disclosure Statement as Exhibit L.
1.55 “New
Senior Preferred Stock” means the new series of senior preferred stock, senior
to the New Junior Preferred Stock and to the New Common Stock, of the
Reorganized Debtor.
1.56 “New
Senior Secured Credit Facility” means a new $10.0 million first lien senior
secured revolving facility to be available to the Reorganized Debtor, in the
form attached to the Disclosure Statement as Exhibit L.
1.57 “New
Senior Secured Credit Facility Lenders” means the Persons that shall receive a
Pro Rata share of the New
Senior Secured Credit Facility.
1.58 “Oil and Gas Leases” means any and all unexpired
instruments in favor of the Debtor by which a leasehold or working interest is
created in oil and gas and/or other liquid or gaseous hydrocarbons, including
methane.
1.59 “Old Securities” mean, collectively, the Interests, and
any other note, bond or indenture evidencing or creating any public indebtedness
or obligation of the Debtor.
1.60 “Other
Priority Claim” means a Claim entitled to priority under section 507(a) of the
Bankruptcy Code, other than a Priority Tax Claim or an Administrative
Claim.
1.61 “Other
Secured Claims” means all Secured Claims against the Debtor other than the CIT
First Lien Lender Claims and CIT Second Lien Lender Claims.
1.62 “Pay
Status” as to Royalty Claims means the owner of the Royalty Claim (a) whose
identity is known; (b) as to which no portion of the Royalty Claim is subject to
a dispute; and (c) whose properly executed documents of title, including
division orders, require the operator to pay such Royalty Claim in accordance
with applicable nonbankruptcy law. To the extent the ownership of a
Royalty Claim is subject to a dispute or is the subject of pending litigation,
the Royalty Claim is not in Pay Status.
5
1.63 “Person”
means an individual, corporation, partnership, joint venture, association, joint
stock company, limited liability company, limited liability partnership, trust,
estate, unincorporated organization, or other entity.
1.64 “Petition
Date” means the filing date of the voluntary petition for relief under Chapter
11 of the Bankruptcy Code by the Debtor commencing the Chapter 11
Case.
1.65 “Plan Implementation Certificate” means a certificate
signed by the Chief Financial Officer of the Debtor, in a form acceptable to the
CIT First Lien Lenders, CIT Second Lien Lenders and the New Senior Secured
Credit Facility Lenders, certifying that (i) the reconciliation, attached to
such certificate, is an accurate and complete analysis/comparison of the Claims
listed on the Schedules as compared to the Filed Claims; (ii) the attached
official claims register, dated as of the Effective Date, is an accurate and
complete listing of all Filed Claims; (iii) the estimated Cure costs, the Cure
Costs associated with the Retained Plans and the estimated Allowed Claims of
Classes 1, 2, 3, 5, 6, 7, 8, and 9, do not exceed
$750,000.00.
1.66 “Plan
Supplement” means the organizational, corporate, and financing documents that
shall be entered into by the Reorganized Debtor to give effect to the
Restructuring Transactions.
1.67 “Plan
Support Agreement” means the Plan Support and Lock-Up Agreement, dated as of
January [ ], 2010, between Cross Canyon and CIT Capital USA, Inc.
1.68 “Priority
Tax Claim” means a Claim that is entitled to priority under section 507(a)(8) of
the Bankruptcy Code.
1.69 “Pro Rata” means, at any
time, the proportion that the principal amount of a Claim or Interest in a
particular Class bears to the aggregate principal amount of all Claims or
Interests in that Class, calculated as of the Petition Date.
1.70 “Reorganized
Debtor” means Cross Canyon as reorganized and reincorporated in Delaware, as
fully described in Article III, Section E. of this Plan, from and after the
Effective Date.
1.71 “Restructuring
Transactions” has the meaning set forth in Article III, Section D.
1.72 “Retained
Plans” means the employee compensation and benefit plans, if any, of the Debtor
subject to sections 1114 and 1129(a) of the Bankruptcy Code, that are in
existence as of the Petition Date, in each case only to the extent set forth in
the Plan Supplement.
1.73 “Royalty”
means a cost-free share of production from the oil, gas and mineral estate
measured by production and/or sale of minerals from the oil, gas and/or mineral
leases owned by Cross Canyon.
1.74 “Royalty
Claim” means a claim for Royalty arising from the production or sale of oil, gas
and/or minerals from oil, gas and/or mineral leases owned by Cross
Canyon.
1.75 “Royalty
Claimant” means a Person with a Royalty Claim.
6
1.76 “Schedules” means the schedules of assets and
liabilities and statement of financial affairs filed by the Debtor pursuant to
section 521 of the Bankruptcy Code and Bankruptcy Rule 1007(b), as such
schedules or statements may be amended or supplemented from time to time in
accordance with Bankruptcy Rule 1009 or orders of the Bankruptcy
Court.
1.77 “Secured
Claim” means any Claim, including principal, interest, fees and expenses as
determined pursuant to section 506(b) of the Bankruptcy Code, against the Debtor
(a) secured, in whole or in part as of the Petition Date, by a Lien on the
assets or property of the Debtor, which Lien is valid, perfected and enforceable
under applicable law and is not subject to avoidance under the Bankruptcy Code
or applicable non-bankruptcy law, but only to the extent of the value of the
assets or property securing any such Claims, or (b) subject to setoff under
section 553 of the Bankruptcy Code, but only the extent of the amount subject to
such setoff.
1.78 “Series
C Preferred Stock” means the Series C Preferred Stock issued by the
Debtor.
1.79 “Subordinated Claim” means (i) any Claim against any of
the Debtors that is subordinated pursuant to either Section 510(b) or 510(c) of
the Bankruptcy Code, which shall include any Claim arising from the rescission
of a purchase or sale of any Old Security, any Claim for damages arising from
the purchase or sale of an Old Security, or any Claim for reimbursement,
contribution, or indemnification on account of any such Claim; or (ii) any Claim
for any fine, penalty, or forfeiture, or multiple, exemplary, or punitive
damages, to the extent that such fine, penalty, forfeiture, or damage is not
compensation for actual pecuniary loss suffered by the holder of such Claim,
including, without limitation, any such Claim based upon, arising from, or
relating to any cause of action whatsoever (including, without limitation,
violation of law, personal injury, or wrongful death, whether secured or
unsecured, liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter
arising in law, equity or otherwise), and any such Claim asserted by a
governmental unit in connection with a tax or other obligation owing to such
unit.
B. Scope
of Definitions; Rules of Construction
1.80 Capitalized
terms used herein, but not defined herein, shall have the meaning ascribed to
such term in the Bankruptcy Code or the Bankruptcy Rules. Definitions
shall apply to the plural as well as the singular number.
C. Rules
of Interpretation
1.81 General
In the
Plan (a) any reference to a contract, instrument, release or agreement as being
in a particular form or on particular terms and conditions means such contract,
instrument, release or agreement substantially in such form or on such terms and
conditions, (b) any reference to an existing document or exhibit means that
document or exhibit as it may have been or may be amended, modified, or
supplemented, (c) unless otherwise specified, all references to Sections,
Articles, Schedules, and Exhibits are references to Sections, Articles,
Schedules, and Exhibits of or to the Plan, (d) the words “herein” and “hereto”
refer to the Plan in its entirety rather than to a particular portion of the
Plan, (e) captions and headings to Articles and Sections are for convenience of
reference only and are not intended to be a part of or to affect the
interpretation of the Plan, and (f) the rules of construction in section 102 of
the Bankruptcy Code and in the Bankruptcy Rules shall apply.
1.82 “Including”
As used
in the Plan, “including” means “including without limitation.”
7
1.83 “On”
With
reference to any distribution under this Plan, “on” a date means on or as soon
as reasonably practicable after such date.
1.84 “Contra Proferentum” Rule Not
Applicable
This Plan
is the product of extensive discussions and negotiations between and among,
inter alia, Cross
Canyon and CIT Capital USA, Inc. Both of the foregoing were
represented by counsel who either participated in the formulation and
documentation of, or were afforded the opportunity to review and provide
comments on, the Plan, the Disclosure Statement, and related
documents. Accordingly, the general rule of contract construction
known as “contra
proferentum” shall not apply to the interpretation of any provision of
this Plan, the Disclosure Statement, or any agreement or document generated in
connection herewith.
D. Computation
of Time
1.85 Bankruptcy
Rule 9006(a) shall apply to computing any period of time prescribed or allowed
by the Plan.
ARTICLE
II
CLASSIFICATION
AND TREATMENT OF CLAIMS AND INTERESTS
A. Classification
2.1 The
Plan classifies all Claims and Interests into the Classes listed in Section B of
this Article II. A Claim or Interest is classified in a particular
Class only to the extent that the obligation giving rise to such Claim or
Interest qualifies within the description of such Class, and is classified in a
different Class to the extent any portion thereof qualifies within the
description of a different Class. Claims against or Interests in the Debtor are
classified in accordance with section 1122(a) of the Bankruptcy
Code.
B. Classes
and Treatment of Claims and Interests Therein
2.2 Class
1. Administrative
Claims. Class 1 Claims are not Impaired and need not be
classified, but are classified herein for administrative
convenience. Each holder of an Allowed Administrative Claim shall be
paid in full, in Cash, as soon as reasonably practicable on the later of (a) the
Effective Date and (b) the date on which such Administrative Claim becomes an
Allowed Claim payable under applicable law or any agreement relating
thereto. Class 1 is deemed to have accepted the Plan and therefore is
not entitled to vote to accept or reject the Plan.
2.3 Class
2. Priority Tax
Claims. Class 2 Claims are not Impaired. Each
holder of an Allowed Priority Tax Claim shall be paid in full, in Cash, as soon
as reasonably practicable on the later of (a) the Effective Date and (b) the
date on which such Priority Tax Claim becomes an Allowed Claim payable under
applicable law or any agreement relating thereto. Class 2 is deemed
to have accepted the Plan and therefore is not entitled to vote to accept or
reject the Plan.
8
2.4 Class
3. Other Priority
Claims. Class 3 Claims are not Impaired. Class 3
shall include all Priority Claims not included in Classes 1 and
2. Each holder of an Allowed Class 3 Claim shall be paid in full, in
Cash, as soon as reasonably practicable on the later of (a) the Effective
Date and (b) the date on which such Other Priority Claim becomes an Allowed
Claim payable under applicable law or any agreement relating
thereto. Class 3 is deemed to have accepted the Plan and therefore is
not entitled to vote to accept or reject the Plan.
2.5 Class
4(a). CIT First Lien Lender
Claims. Class 4(a) Claims are Impaired. The CIT
First Lien Lender Claims shall receive the (a) obligation to be evidenced by the
New Senior Secured Credit Facility (in the principal amount of $10 million), and
(b) shares of New Senior Preferred Stock in an amount sufficient to liquidate
the balance of the Class 4(a) Claims (based on the liquidation preference of the
entire New Senior Preferred Stock issue of $23.5 million), in full satisfaction
of the CIT First Lien Lender Claims. As Class 4(a) is Impaired, it is
entitled to vote to accept or reject the Plan.
2.6 Class
4(b). CIT Second Lien Lender
Claims. Class 4(b) Claims are Impaired. The CIT
Second Lien Lender Claims shall receive (a) shares of New Senior Preferred
Stock, with a liquidation preference equal to $23.5 million, less the share of
the New Senior Preferred Stock allocated to Class 4(a), and (b) 95% of the New Common Stock in full satisfaction of the CIT Second Lien
Lender Claims; provided, however, that if the Bankruptcy Court determines that
the Debtor is or was required to solicit Class 11 with respect to acceptances
and rejections of the Plan, on account of their Interests, then the CIT Second
Lien Lender Claims shall receive 100% of the New Common Stock, plus the New
Senior Preferred Stock as set forth above. As Class 4(b) is Impaired,
it is entitled to vote to accept or reject the Plan.
2.7 Class
5. Royalty
Claims. Class 5 Claims are not Impaired. Each
holder of an Allowed Class 5 Claim shall be paid in full, in Cash, as soon as
reasonably practicable on the later of (a) the Effective Date and (b) the date
when such Royalty Claim (i) becomes an Allowed Claim payable under applicable
law or any agreement relating thereto, and (ii) is in Pay
Status. Class 5 is deemed to have accepted the Plan and therefore is
not entitled to vote to accept or reject the Plan.
2.8 Class
6. Other Secured
Claims. Class 6 Claims are not Impaired. Class 6
shall include all Secured Claims other than Class 4 and Class 5
Claims. Each holder of an Allowed Class 6 Claim shall be paid in
full, in Cash, as soon as reasonably practicable on the later of (a) the
Effective Date and (b) the date on which such Other Secured Claim becomes an
Allowed Claim payable under applicable law or any agreement relating
thereto. Class 6 is deemed to have accepted the Plan and therefore is
not entitled to vote to accept or reject the Plan.
2.9 Class
7. General Unsecured
Claims. Class 7 Claims are not Impaired. Each
holder of an Allowed Class 7 Claim shall be paid in full, in Cash, as soon as
reasonably practicable on the later of (a) the Effective Date and (b) the date
on which such General Unsecured Claim becomes an Allowed Claim payable under
applicable law or any agreement relating thereto. Class 7 is deemed
to have accepted the Plan and therefore is not entitled to vote to accept or
reject the plan.
2.10 Class
8. Subordinated Unsecured
Claims. Class 8 Claims are not Impaired. Each
holder of an Allowed Class 8 Claim shall be paid in full, in Cash, as soon as
reasonably practicable on the later of (a) the Effective Date and (b) the date
on which such Subordinated Unsecured Claim becomes an Allowed Claim payable
under applicable law or any agreement relating thereto. Class 8 is
deemed to have accepted the Plan and therefore is not entitled to vote to accept
or reject the plan.
9
2.11 Class
9. Intercompany
Claims. Class 9 Claims are Impaired. Each holder of
an allowed Class 9 Claim shall receive no distribution on account of such Class
9 Claim, as Class 9 shall receive no distribution under the
Plan. Class 9 is deemed to reject the Plan by operation of law and is
not entitled to vote to accept or reject the Plan.
2.12 Class
10. Class C Preferred Stock
Interests. Class 10 Interests are Impaired. The
Class 10 Interest holder shall receive the New Junior Preferred Stock in full
satisfaction of the Class C Preferred Stock Interests. As Class 10 is
Impaired, it is entitled to vote to accept or reject the Plan.
2.13 Class
11. Common Stock
Interests. Class 11 Interests are Impaired. Holders
of the Common Stock of the Debtor shall receive their Pro Rata share of 5% of
the New Common Stock. The Debtor has elected not to solicit Class 11,
and, as a result, the Debtor has deemed Class 11 to have rejected the
Plan. Should the Bankruptcy Court determine that the Debtor is or was
required to solicit Class 11 Common Stock Interest Holders with respect to
acceptances and rejections of the Plan, on account of their Interests, then
Class 11 shall receive no distribution under the Plan and 100% of the New Common
Stock shall be distributed to the Holders of Class 4(b) Claims.
2.14 Class
12. Common
Stock Option Interests. Class 12 Interests are
Impaired. Each Holder of an allowed Class 12 Interest shall receive
no distribution under the Plan. Class 12 is deemed to reject the Plan
by operation of law and is not entitled to vote to accept or reject the
Plan.
C. Aggregation
2.15 If
a Person has more than one Claim in the same Class, such Claims shall be
aggregated and treated as a single Claim. If a Person has Claims in
different Classes, such claims shall be aggregated only within the same Class
and not across Classes.
D. Alternative
Treatment
2.16 Notwithstanding
any provision herein to the contrary, any holder of an Allowed Claim or Interest
may receive, instead of the distribution or treatment to which it is entitled
hereunder, any other lesser distribution or treatment to which it and the Debtor
may agree in writing.
ARTICLE
III
MEANS
FOR IMPLEMENTATION OF THE PLAN
A. Credit
Facility
3.1 The
Debtor has a commitment under the Plan Support Agreement from the CIT First Lien
Lenders to participate Pro Rata in the New
Senior Secured Credit Facility subject to the terms and conditions of the Plan
Support Agreement, to enable the Debtor to consummate the Plan and emerge from
Chapter 11 as a reorganized entity.
10
3.2 The
security interests and liens securing repayment of the CIT Revolving Loan and
the CIT Term Loan shall be released or assigned so that the New Senior Secured
Credit Facility shall receive a first priority security interest and lien to
secure the repayment of the New Senior Secured Credit Facility.
B. Satisfaction
of Allowed Claims
3.3 The
holders of Allowed Claims in Classes 1 through 9 and Allowed Interests in
Classes 10 and 11 shall be satisfied in accordance with the terms of this
Plan.
C. Cancellation
of Interests; Issuance of New Common Stock
3.4 All
Interests of the Debtor shall be cancelled and annulled on the Effective
Date. The Reorganized Debtor shall issue the New Senior Preferred
Stock, New Junior Preferred Stock and New Common Stock and distribute same in
accordance with the Plan.
D. Restructuring
Transactions
3.5 On
the Effective Date, and pursuant to the Plan or the applicable Plan Supplement,
the Debtor or Reorganized Debtor shall enter into the restructuring transactions
contemplated herein (the “Restructuring
Transactions”), and shall take any actions as may be reasonably necessary
or appropriate to effect a restructuring of its respective businesses or the
overall organizational structure of the Debtor. The actions to be
taken by the Debtor and Reorganized Debtor to effect the Restructuring
Transactions may include: (a) the execution and delivery of appropriate
agreements or other documents of merger, consolidation, restructuring,
conversion, disposition or transfer containing terms that are consistent with
the terms of the Plan and that satisfy the applicable requirements of applicable
state law and any other terms to which the applicable entities may agree; (b)
the execution and delivery of appropriate instruments of transfer, assignment,
assumption, or delegation of any asset, property, right, liability, debt, or
obligation on terms consistent with the terms of the Plan and having other terms
for which the applicable parties agree; (c) the filing of appropriate
certificates or articles of incorporation or reincorporation, including the
Certificate of Incorporation and the Certificate of Designations, limited
partnership, or formation, merger or consolidation pursuant to applicable state
law; and (d) all other actions determined to be reasonably necessary or
appropriate, including making filings or recordings that may be required by
applicable state law in connection with the Restructuring
Transactions. The Plan Supplement evidencing the Restructuring
Transactions shall be filed with the Bankruptcy Court at least five (5) Business
Days prior to the Confirmation Hearing. The chairman of the board of
directors, president, chief executive officer, chief financial officer, any
executive vice president or senior vice president, or any other appropriate
officer, manager or managing partner of each of Debtor or Reorganized Debtor, as
appropriate, shall be authorized to execute, deliver, file, or record such
contracts, instruments, releases, agreements or other documents, and take such
other actions, as may be reasonably necessary or appropriate, to give effect to
and further evidence the terms of this Plan. The secretary or
assistant secretary of the Debtor or the Reorganized Debtor, as appropriate,
shall be authorized to certify or attest to any of the foregoing
actions.
11
E. Continued
Corporate Existence; Certificates of Incorporation and By-laws
3.6 The
Reorganized Debtor shall continue to exist as a separate legal entity, and it
shall be converted from a Nevada corporation to a
Delaware corporation under the laws of the State of
Delaware. On the Effective Date, the Reorganized Debtor shall
file: (a) the Certificate of Conversion in
substantially the form attached to the Disclosure Statement as Exhibit O with
the Secretary of State of the State of Delaware; (b) the Certificate of
Incorporation in substantially the form attached to the Disclosure Statement as
Exhibit P with the Secretary of State of the State of Delaware (the “Certificate
of Incorporation”) and; (c) adopt Amended
and Restated Bylaws substantially in the form attached to the Disclosure
Statement as Exhibit Q. The
Certificate of Incorporation shall, among other things, pursuant to section
1123(a)(6) of the Bankruptcy Code, include a provision prohibiting the issuance
of non-voting equity securities.
3.7 The
Certificate of Incorporation shall authorize the Reorganized Debtor to issue the
New Senior Preferred Stock, New Junior Preferred Stock and New Common
Stock. The holders of New Common Stock will vote as a single class,
and each share of New Common Stock will be entitled to one vote in all matters
to be voted on by the holders of the New Common Stock; provided, however, that the holders of the shares of
New Senior Preferred Stock and New Junior Preferred Stock shall be entitled to
vote with the holders of New Common Stock (as a single class) on all matters
submitted to a vote of the stockholders of the Reorganized
Debtor.
F. Authority
3.8 Until
the Effective Date, the Bankruptcy Court shall retain jurisdiction over the
Debtor, its assets and operations.
G. Substantial
Consummation
3.9 On
the Effective Date, unless otherwise provided by the Confirmation Order, the
following shall occur, be deemed to have occurred simultaneously, and constitute
substantial consummation of the Plan: (a) new corporate documents shall be
authorized, approved and effective in all respects without further action under
applicable law, regulation, order, or rule, including, without express or
implied limitation, any action by the stockholders or directors of the Debtor or
the Reorganized Debtor; except that the new organizational documents of the
Reorganized Debtor shall be filed as may be appropriate with the applicable
Secretary of State as soon as reasonably practicable on or after the Effective
Date; (b) the Debtor’s property deemed transferred to the Reorganized Debtor
shall automatically vest in the Reorganized Debtor without further action on the
part of the Debtor or any other Person; (c) all documents evidencing the New
Senior Secured Credit Facility shall have been duly authorized, fully executed and delivered, and (d) the New Senior Preferred
Stock, New Junior Preferred Stock and New Common Stock shall have been issued
and distributed as provided herein.
H. Cancellation
of Instruments and Agreements
3.10 On
the Effective Date, except as otherwise provided herein or in the Confirmation
Order, instruments, indentures, notes, warrants, options, share certificates, or
other documents (other than any insurance policy of a Debtor) evidencing, giving
rise to, or governing any Claim or Interest shall be deemed canceled and
annulled without further act or action under any applicable agreement, law,
regulation, order, or rule, and the obligations of the Debtor under such
agreements, instruments, indentures, notes, warrants, options, share
certificates, or other documents shall be discharged.
12
I. Directors
and Officers
3.11 On
the Effective Date, the officers of the Reorganized Debtor shall be Robert P.
Munn, Carl A. Chase and James B. Davis, and the directors of the Reorganized
Debtors shall be identified at or prior to the
Confirmation Hearing.
J. Board
Observation
3.12 On
the Effective Date, the Debtor and CIT shall enter into the Board Observation
Agreement in substantially the form attached to the Disclosure Statement as
Exhibit R.
K. Releases
3.13 On
the Effective Date, except for Causes of Action arising under the Plan (a) the
Administrative Agent, the CIT First Lien Lenders, the CIT Second Lien Lenders
and the New Senior Secured Credit Facility Lenders shall forever waive, release,
and discharge any and all Causes of Action against the Debtor based, whether in
whole or in part, upon any act, omission, event, condition, or thing in
existence or that occurred, whether in whole or in part, prior to the Effective
Date of the Plan and (b) in exchange for the preceding release and the valuable
consideration being provided by the Administrative Agent, the CIT First Lien
Lenders and the CIT Second Lien Lenders, in the form of significant compromise
and reduction of their Secured Claims, the Debtor shall be deemed to forever
waive, release, and discharge any and all Causes of Action against the CIT First
Lien Lenders, CIT Second Lien Lenders and the New Senior Credit Facility Lenders
based, whether in whole or in part, upon any act, omission, event, condition, or
thing in existence or that occurred, whether in whole or in part, prior to the
Effective Date of the Plan. For the purpose of the Releases granted
by this section, the CIT First Lien Lenders, CIT Second Lien Lenders and the New
Senior Secured Credit Facility Lenders. For purposes of this Section
J, the term “Debtor” shall include its officers, directors, employees, agents,
partners, subsidiaries, affiliates, advisors, attorneys, and
successors-in-interest.
L. Certain
Retained Causes of Action
3.14 Except
as otherwise provided in this Plan or the Confirmation Order, or in any
contract, instrument, release, or other agreement entered into in connection
with the Plan, in accordance with section 1123(b) of the Bankruptcy Code, the
Reorganized Debtor shall receive by transfer from the Debtor and shall retain
and may enforce, sue on, settle, or compromise (or decline to do any of the
foregoing) all claims, rights, Causes of Action, suits, and proceedings, whether
in law or in equity, whether known or unknown, that the Debtor or its Estate may
hold against any Person and that arose prior to the Effective Date or relates to
a Claim. The Reorganized Debtor may pursue or abandon such retained
claims, rights, Causes of Action, suits, or proceedings as appropriate, in
accordance with the best interests of the [Estate].
13
M. Exemption
from Certain Transfer Taxes
3.15 Pursuant
to section 1146(a) of the Bankruptcy Code, any transfers or mortgages from or by
the Debtor to the Reorganized Debtor or any other Person or entity pursuant to
the Plan, including, without limitation, any filings made in connection with the
New Senior Secured Credit Facility, shall not be subject to any document
recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage
tax, stamp act, real estate transfer tax, mortgage recording tax or other
similar tax or governmental assessment, and the Confirmation Order shall direct
the appropriate state or local governmental officials or agents to forego the
collection of any such tax or governmental assessment and to accept for filing
and recordation any of the foregoing instruments or other documents without the
payment of any such tax or governmental assessment.
N. Assignment
of Litigation Claims.
3.16 The
Debtor will assign its Causes of Action or Claims, subject to the limitations
set forth in this Plan, whether asserted or unasserted, to the Reorganized
Debtor.
ARTICLE
IV
PROVISIONS
GOVERNING DISTRIBUTIONS
A. Delivery
of Distributions; Undeliverable or Unclaimed Distributions
4.1 Delivery
of Distributions in General
The
Reorganized Debtor shall make distributions to each holder of an Allowed Claim
at the address reflected in the books and records of the Debtor, unless
otherwise notified in writing by such holder sufficiently in advance of any
distribution to allow the Debtor or Reorganized Debtor to reflect such change on
its books and records.
4.2 Undeliverable
and Unclaimed Distributions
Any
undeliverable or unclaimed distribution under this Plan that does not become
deliverable on or before the first anniversary of the Effective Date shall be
deemed to have been forfeited and waived, and the Person otherwise entitled
thereto shall be forever barred and enjoined from asserting its Claim therefor
against, or seeking to recover its distribution from, the Debtor, its Estate, or
the Reorganized Debtor.
4.3 Allocation
of Plan Distributions Between Principal and Interest
To the
extent that any Allowed Claim or Interest entitled to a distribution under the
Plan is composed of indebtedness and accrued but unpaid interest thereon, such
distribution shall, to the extent permitted by applicable law, be allocated for
United States federal income tax purposes to the principal amount of the Claim
first and then, to the extent the consideration exceeds the principal amount of
the Claim, to the portion of the Claim representing accrued but unpaid
interest.
14
4.4 Fractional
Amounts
The
distributable amount of New Senior Preferred Stock, New Junior Preferred Stock
and New Common Stock may create fractional amounts otherwise distributable to
holders of Allowed Class 4(a), 4(b), 10 and 11 Claims and
Interests. Notwithstanding such entitlement, all New Senior Preferred
Stock, New Junior Preferred Stock and New Common Stock issued by the Reorganized
Debtor pursuant to the Plan will be issued and distributed only in full dollar
denominations. To the extent any holder would be entitled to a
fractional denomination of New Senior Preferred Stock, New Junior Preferred
Stock and New Common Stock, but for this provision, the denomination of New
Senior Preferred Stock, New Junior Preferred Stock and New Common Stock to be
issued to such holder shall be rounded downward to eliminate any fractional
amount.
B. Withholding
and Reporting Requirements
4.5 Compliance
with Applicable Laws.
In
connection with this Plan and all distributions hereunder, the Debtor and
Reorganized Debtor shall comply with all applicable tax withholding and
reporting requirements imposed by any federal, state, local, or foreign taxing
authority, and all distributions hereunder shall be subject to those
requirements. The Debtor and Reorganized Debtor shall be authorized
to take all actions necessary or appropriate to comply with those withholding
and reporting requirements. Notwithstanding any other provision of
this Plan, the holders of Interests in the Debtor shall have sole and exclusive
responsibility for the satisfaction and payment of any tax obligations imposed
by any governmental unit, including income, withholding and other tax
obligations, on account of such distribution, and no distribution shall be made
to or on behalf of such holder pursuant to this Plan unless and until such
holder has made arrangements satisfactory to the Debtor and Reorganized Debtor
for the payment and satisfaction of such tax obligations or has, to the Debtor’s
or Reorganized Debtor’s satisfaction, established an exemption
therefrom. Any distribution to be made pursuant to this Plan shall,
pending the implementation of such arrangements, be treated as undeliverable
pursuant to Article IV, Section A. hereof.
4.6 Tax
Identification Numbers
Prior to
receiving any distributions under this Plan, each holder of an Allowed Claim
shall provide the Debtor/Reorganized Debtor with written notification or
confirmation of its federal tax identification number or social security number
for the sole purpose of allowing the Debtor and the Reorganized Debtor to comply
with the applicable tax laws and rules.
C. Setoffs
4.7 The
Debtor and/or Reorganized Debtor may, but shall not be required to, set off
against any Claim, other than the Claims held by the CIT First Lien Lenders and
CIT Second Lien Lenders, and the payments or other distributions to be made in
respect of that Claim, claims of any nature whatsoever that the Debtor or
Reorganized Debtor may have against the Claim’s holder; but neither the failure
to do so nor the allowance of any Claim hereunder shall constitute a waiver or
release by the Debtor or Reorganized Debtor of any claim that the Debtor or
Reorganized Debtor may have.
15
ARTICLE
V
TREATMENT OF EXECUTORY
CONTRACTS,
UNEXPIRED LEASES AND OTHER
AGREEMENTS
A. Assumption/Rejection
5.1 The Debtor anticipates filing on the Petition Date,
motions to (a) assume, or (b) reject certain executory contracts and unexpired
leases, as provided pursuant to Section 365 of the Bankruptcy Code, among
others. To the extent that any executory contract or unexpired lease
is not included in either such motion, then such executory contract and
unexpired lease shall be deemed rejected on the Effective
Date.
B. Pass-Through
5.2 Any rights or arrangements necessary or useful to the
operation of the Debtor’s business but not otherwise addressed as a Claim or
Interest, including non-exclusive or exclusive patent, trademark, copyright,
maskwork or other intellectual property licenses, bonding arrangements,
operating licenses with the Texas Railroad Commission or other such regulatory
authority, and other executory contracts not assumable under section 365(c) of
the Bankruptcy Code, shall, in the absence of any other treatment under the Plan
or Confirmation Order, be passed through the Chapter 11 Case for the benefit of
the Reorganized Debtor and the counterparty or counterparties to such rights or
arrangements and left unaltered and unaffected by the Chapter 11
Case.
C. Oil and Gas Leases
5.3 Oil and Gas Leases do not constitute executory contracts
or unexpired leases of real property under section 365 of the Bankruptcy
Code.
5.4 Except for (i) the defaults of a kind specified in
sections 365(b)(2) and 541(c)(1) of the Bankruptcy Code (which defaults the
Debtor and Reorganized Debtor will not be required to cure) or (ii) as otherwise
provided herein, the legal, equitable and contractual rights of the
counterparties to Oil and Gas Leases shall be unaltered by the
Plan. To the extent a failure by the Debtor or Reorganized Debtor to
pay or perform an obligation under an Oil and Gas Lease is a default under any
applicable Oil and Gas Lease, such default shall be cured for all purposes by
the payments provided for herein or the Reorganized Debtor’s subsequent
performance of such obligation with such applicable Oil and Gas Lease deemed to
be, or otherwise remaining, in full force and effect for the benefit of the
Reorganized Debtor. To the extent such payment is due and owing on
the Effective Date, such payment shall be made, in Cash, on the Effective Date,
or upon such other terms as may be agreed to by the Debtor or Reorganized Debtor
and the Person to whom such payment is due. To the extent such
payment is not due and owing on the Effective Date, such payment (a) will be
made, in Cash, in accordance with the terms of the Oil and Gas Lease (or other
agreement) between the parties, or as such payment becomes due and owing under
(i) applicable non-bankruptcy law, or (ii) in the ordinary course of business of
the Reorganized Debtor or (b) will be made upon other terms as may be agreed
upon by the Reorganized Debtor and the Person to whom such payment is
due. To the extent it is impossible for the Reorganized Debtor to
cure a default arising from any failure to perform a non-monetary obligation,
such default shall be deemed cured by future performance by the Reorganized
Debtor in accordance with the terms of the applicable Oil and Gas Lease with the
applicable Oil and Gas Lease deemed to be, or otherwise remaining, in full force
and effect for the benefit of the Reorganized Debtor. If there is a
dispute as to any cure obligation (including cure payments) between the
Debtor/Reorganized Debtor and the lessor of an Oil and Gas Lease, the
Reorganized Debtor shall only have to pay or perform as herein provided the
non-disputed cure obligation with the balance of the cure payment or cure
performance to be made or performed after resolution of such dispute either by
(i) agreement of the parties or (ii) resolution by the Bankruptcy Court by a
Final Order.
16
D. Assumed Executory Contracts and Unexpired
Leases
5.5 Each executory contract and unexpired lease that is
assumed shall include each term set forth in all (a) amendments, modifications,
supplements, restatements, or other agreements made directly or indirectly by
any agreement, instrument, or other document that in any manner affects such
executory contract or unexpired lease, and (b) rights appurtenant to property,
including all easements, licenses, permits, rights, privileges, immunities,
options, rights of first refusal, powers, uses, reciprocal easement agreements,
vaults, tunnel or bridge agreements or franchises, and any other equity
interests in real estate or rights in rem related to such premises, unless any of the foregoing
agreements has been rejected pursuant to an order of the Bankruptcy Court or is
the subject of a motion to reject filed on or before the Effective
Date.
5.6 Amendments, modifications, supplements, and restatements
to prepetition executory contracts and unexpired leases that are executed by the
Debtor while its Chapter 11 Case is pending, shall not be deemed to alter the
prepetition nature of the executory contract or unexpired lease, or the
validity, priority, or amount of any claims that may arise in connection
therewith.
E. Preexisting Obligations to the Debtor Under Executory
Contracts and Unexpired Leases
5.7 Rejection or repudiation of any executory contract or
unexpired lease pursuant to the Plan or otherwise shall not constitute a
termination of pre-existing obligations owed to the Debtor under such contracts
or leases. In particular, notwithstanding any non-bankruptcy law to
the contrary, the Reorganized Debtor expressly reserves and does not waive any
right to receive, or any continuing obligation of a counterparty to provide,
warranties or continued maintenance obligations on goods previously purchased by
the Debtor or Reorganized Debtor, as applicable, from counterparties to rejected
or repudiated executory contracts or unexpired leases.
F. Assumed Contracts and Leases
5.8 Contracts and leases assumed by the Debtor may be
performed by the Reorganized Debtor in the ordinary course of
business.
G. Reservation of Rights
5.9 Neither the exclusion nor inclusion of any contract or
lease in any pleading, exhibit or otherwise filed in the Chapter 11 Case, nor
anything contained in the Plan, shall constitute an admission by the Debtor or
the Reorganized Debtor that any such contract or lease is in fact an executory
contract or unexpired lease or that the Reorganized Debtor has any liability
thereunder. If there is a dispute regarding whether a contract or
lease is or was executory or unexpired at the time of assumption or rejection,
the Reorganized Debtor shall have thirty days following entry of a Final Order
resolving such dispute to alter their treatment of such contract or
lease.
17
H. Nonoccurrence of Effective Date
5.10 In the event that the Effective Date does not occur, the
Bankruptcy Court shall retain jurisdiction with respect to any request by the
Debtors to extend the deadline for assuming or rejecting unexpired leases
pursuant to section 365(d)(4) of the Bankruptcy Code.
I. Additional Cure Provisions
5.11 Except as otherwise provided in this Article V, such
Cure payments shall be effected, or otherwise satisfied, by prompt payment by
the Reorganized Debtor as contemplated by Section 365(b)(1)(A) of the Bankruptcy
Code. If there is a dispute regarding (a) the timing of any payment
required in order to meet the promptness requirement of 365(b)(1), (b) the
nature, extent or amount of any cure requirement, (c) the Reorganized Debtor’s
ability to provide “adequate assurance of future performance” (within the
meaning of section 365 of the Bankruptcy Code) under the contract or lease to be
assumed, or (d) any other matter pertaining to assumption, cure will occur
following the entry of a Final Order resolving the dispute and approving the
assumption or assumption and assignment, as the case may be.
J. Claims Based on Rejection of Executory Contracts and
Unexpired Leases
5.12 Unless otherwise provided by a Bankruptcy Court order,
any proofs of claim asserting Claims arising from the rejection of the Debtor’s
executory contracts and unexpired leases pursuant to the Plan or otherwise must
be filed no later than twenty (20) days after the Effective Date. Any
proofs of claim arising from the rejection of the Debtor’s executory contracts
or unexpired leases that are not timely filed shall be disallowed automatically,
forever barred from assertion, and shall not be enforceable against the Debtor,
its Estate or the Reorganized Debtor, as applicable, without the need for any
objection by the Debtor, its Estate or the Reorganized Debtor, as applicable, or
further notice to or action, order, or approval of the Bankruptcy Court, and any
Claim arising out of the rejection of the executory contract or unexpired lease
shall be deemed fully satisfied, released, and discharged, notwithstanding
anything in the Schedules or a proof of claim to the contrary. All
Allowed Claims arising from the rejection of the Debtor’s executory contracts
and unexpired leases shall be classified as General Unsecured Claims and shall
be treated in accordance with the relevant provisions of the Plan; provided,
however, if the holder of an Allowed Claim for rejection damages has a properly
perfected security interest in any Collateral to secure obligations under such
rejected executory contract or unexpired lease, the allowed claim for rejection
damages shall be treated as an Other Secured Claim to the extent of the value of
such holder’s interest in the Collateral, with the deficiency, if any, treated
as a General Unsecured Claim.
K. Compensation,
Benefit, and Pension Programs
5.13 With
the sole exception of the Retained Plans, all employee compensation, benefit and
pension plans, and employment agreements or settlements reached thereunder of
the Debtors, including benefit plans and programs subject to sections 1114 and
1129(a)(13) of the Bankruptcy Code entered into before or after the Petition
Date and not since terminated, shall be deemed to be, and shall be treated as if
they were, terminated executory contracts. Each Retained Plan will be
treated as if it were an executory contract assumed hereunder, and the Debtor’s
respective obligations under each such Retained Plan shall survive Confirmation
of this Plan and become obligations of the Reorganized Debtor.
18
L. Indemnification
Obligations
5.14 Except
as otherwise specifically provided herein, any obligations or rights of any
Debtor to indemnify, defend or advance expenses to its present and former
directors, officers, employees, agents or representatives under its certificate
of incorporation, by-laws, employee-indemnification policy, or under state law,
or any agreement with respect to any claim, demand, suit, cause of action, or
proceeding, shall survive Confirmation of this Plan and become obligations of
the Reorganized Debtor. The employees of the Debtor who become
employed by the Reorganized Debtor shall receive indemnification by the
Reorganized Debtor in the ordinary course of its business. Claims
against the Debtor for indemnification shall be classified under this Plan as
General Unsecured Claims and are payable as Class 7 Claims.
M. Treatment
of Change of Control Provisions
5.15 The
entry of the Confirmation Order, consummation of the Plan, and/or any other acts
taken to implement the Plan shall not constitute a “change of control” under any
provision of any contract, agreement or other document which provides for the
occurrence of any event, the granting of any right, or any other change in the
then-existing
relationship between the parties upon a change in control.
ARTICLE
VI
ACCEPTANCE
OR REJECTION OF THE PLAN
A. Classes
Entitled To Vote
6.1 Classes
4(a), 4(b) and 10 are Impaired and entitled to vote to accept or reject the
Plan. By operation of law, Classes 1, 2, 3, 5, 6, 7 and 8 are not
Impaired, are deemed to have accepted the Plan and are not entitled to vote to
accept or reject the Plan. Class 9 shall receive no distribution
under the Plan. As such, it is deemed to reject the
Plan. Under the applicable provisions of Section 1129 of the
Bankruptcy Code, the Debtor is not required to provide a distribution to Class
11 under the Plan. Notwithstanding the foregoing, the Plan provides
for a distribution to Class 11. Nevertheless, the Debtor has not
solicited Class 11 and to the extent the Bankruptcy Court makes a determination
that the Debtor is required to solicit Class11, then the Plan provides that
Class 11 shall not receive a distribution and 100% of the New Common Stock will
be distributed to the Holders of Class 4(b) Claims.
B. Acceptance
by Impaired Classes
6.2 An
Impaired Class of Claims or Interests shall have accepted the Plan if (a) the
holders of at least two-thirds in amount of the Allowed Claims actually voting
in the Class have voted to accept the Plan, and (b) the holders of more than
one-half in number of the Allowed Claims actually voting in the Class have voted
to accept the Plan, in each case not counting the vote of any holder designated
under section 1126(e) of the Bankruptcy Code. An Impaired Class of
Interests shall have accepted the Plan if the holders of at least two thirds in
amount of the Allowed Interests have voted to accept the Plan, not counting the
vote of any holder designated under section 1126(e).
19
C. Cramdown
6.3
The Debtor, as a matter of applicable bankruptcy law, could provide for Class 11
to receive no distribution under the Plan and is providing for Class 12 to
receive no distribution. The Debtor has elected not to solicit Class
11, and, as a result, the Debtor has deemed Class 11 to have rejected the
Plan. Further, the Debtor has not solicited Class 12, and, Class 12
is deemed to reject. Thus, the Debtor shall request that the
Bankruptcy Court confirm the Plan under section 1129(b) of the Bankruptcy
Code.
ARTICLE
VII
CONDITIONS
PRECEDENT TO PLAN’S
CONFIRMATION
AND EFFECTIVE DATE
A. Conditions
Precedent to Confirmation
7.1 The
Plan’s Confirmation is subject to the satisfaction or written waiver of each of
the following conditions precedent:
(a) the
Bankruptcy Court finding the prepetition solicitation and the Disclosure
Statement to have been adequate and not in violation of law;
(b) the
timely and affirmative election by the New Senior Secured Credit Facility
Lenders that they will provide the New Senior Secured Credit
Facility;
(c) the
assumption and assignment of all executory contracts and unexpired leases that
are not expressly rejected which the Debtor may seek to assume and assign under
the Plan;
(d) approval
of the mutual releases as set forth in Article III, Section J.;
(e) approval
of the release of parties as set forth in Article X, Section C. and the
injunction against prosecution as provided in Article X, Section
E.;
(f) the
Findings and Conclusions be in form and substance and contain findings and
conclusions in support of confirmation of the Plan that are reasonably
satisfactory to the Debtor and the CIT First Lien Lenders, the CIT Second Lien
Lenders and the New Senior Secured Credit Facility Lenders; and
(g) entry
of the Confirmation Order on or before March 15, 2010.
B. Conditions
Precedent to Effective Date
7.2 Effectiveness
of the Plan is subject to the satisfaction or written waiver of each of the
following conditions precedent:
20
(a) the
Bankruptcy Court shall have entered the Confirmation Order, in form and
substance reasonably satisfactory to the Debtor and the Administrative Agent,
the CIT First Lien Lenders, the CIT Second Lien
Lenders and the New Senior Secured Credit Facility Lenders, confirming
the Plan, as the same may have been modified;
(b) the
Confirmation Order shall have been entered, no timely appeal shall have been
taken from the Confirmation Order, and the Confirmation Order shall have become
a Final Order;
(c) the
execution and delivery of the New Senior Secured Credit Facility and of all
documents related to the New Senior Secured Credit Facility, as requested by the
New Senior Secured Credit Facility Lenders;
(d) the
Debtor and/or Reorganized Debtor shall have executed and delivered all documents
necessary to effectuate the issuance of the New Senior Preferred Stock, the New
Junior Preferred Stock and the New Common Stock as set forth in the
Plan;
(e) all
necessary and material consents, authorizations, and approvals shall have been
given or waived for the transfers and transactions described in the Plan,
including, without limitation, the transfers of property and the payments
described in the Plan, as applicable;
(f) all
conditions to the consummation of the transactions contemplated by the Plan
shall have been satisfied or waived;
(g) delivery of the Plan Implementation Certificate to the
Administrative Agent, the CIT First Lien Lenders, the CIT Second Lien Lenders
and the New Senior Secured Credit Facility Lenders;
(h) delivery of a written consent from the Administrative
Agent, the CIT First Lien Lenders, the CIT Second Lien Lenders and the New
Senior Secured Credit Facility Lenders to the Debtor, providing that the Plan
Implementation Certificate is in a form and substance that is acceptable to such
parties; and
(i) delivery by the Administrative Agent, the CIT First Lien
Lenders, the CIT Second Lien Lenders and the New Senior Secured Credit Facility
Lenders, in their sole discretion, of a written consent to the effectiveness of
the Plan.
C. Waiver
of Conditions
7.3 The
conditions set forth in sections A and B above can be waived in writing, in
whole or in part, jointly by (i) the
Debtor and (ii) the Administrative Agent, the CIT
First Lien Lenders, the CIT Second Lien Lenders and the New Senior
Secured Credit Facility Lenders, at any time without an order of the Bankruptcy
Court. Unless waived, the failure to satisfy any condition precedent
to the Effective Date will preclude the Effective Date’s occurrence, regardless
of the circumstances giving rise thereto (including any action or inaction by
the Debtor or the Reorganized Debtor). The waiver of any condition to
Confirmation or to the Effective Date shall not constitute or be deemed a waiver
of any other condition.
21
ARTICLE
VIII
MODIFICATION;
WITHDRAWAL
8.1 The
Debtor reserves the right to modify the Plan in a manner that is acceptable in
writing to the New Senior Secured Credit Facility Lenders, either before or
after Confirmation, to the fullest extent permitted under section 1127 of the
Bankruptcy Code and Bankruptcy Rule 3019. The Debtor may withdraw the
Plan at any time before the Effective Date.
ARTICLE
IX
RETENTION
OF JURISDICTION
9.1 Under
sections 105(a) and 1142 of the Bankruptcy Code, and notwithstanding the entry
of the Confirmation Order and the occurrence of the Effective Date, the
Bankruptcy Court shall retain exclusive jurisdiction over all matters arising
out of or related to the Chapter 11 Case and the Plan, to the fullest extent
permitted by law, including jurisdiction to:
(a) enter
such orders as may be necessary or appropriate to execute, implement, or
consummate the provisions of the Plan and all contracts, instruments, releases,
and other agreements or documents created in connection with the Plan, the
Disclosure Statement or the Confirmation Order;
(b) hear
and determine disputes arising in connection with the interpretation,
implementation, consummation, or enforcement of the Plan and all contracts,
instruments, and other agreements executed in connection with the
Plan;
(c) hear
and determine any request to modify the Plan or to cure any defect or omission
or reconcile any inconsistency in the Plan or any order of the Bankruptcy
Court;
(d) issue
and enforce injunctions or other orders, or take any other action that may be
necessary or appropriate to restrain any interference with the implementation,
consummation, or enforcement of the Plan or the Confirmation Order;
(e) 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;
(f) hear
and determine any matters arising in connection with or relating to the Plan,
the Disclosure Statement, the Confirmation Order or any contract, instrument,
release, or other agreement or document created in connection with the Plan, the
Disclosure Statement or the Confirmation Order;
(g) enforce
all orders, judgments, injunctions, releases, exculpations, and rulings entered
in connection with the Chapter 11 Case;
22
(h) hear
and determine such other matters as may be provided in the Confirmation Order or
as may be authorized under, or not inconsistent with, provisions of the
Bankruptcy Code;
(i) to
hear and determine matters relating to the allowance, disallowance, estimation,
and liquidation of Claims against the Debtor and to enter or enforce any order
requiring the filing of any such Claim before a particular date;
(j) to
determine all applications, Claims, adversary proceedings, and contested matters
pending on the Effective Date; and
(k) enter
a final decree closing the Chapter 11 Case.
ARTICLE
X
EFFECTS
OF CONFIRMATION
A. Binding
Effect and Discharge of the Debtor
10.1 The
Plan shall be binding upon and inure to the benefit of the Debtor, all present
and former holders of Claims and Interests, and their respective successors and
assigns, and all other parties-in-interest in this Chapter 11
Case. All consideration distributed under the Plan shall be in
exchange for, and in complete satisfaction, settlement, discharge, and release
of, all Claims of any nature whatsoever against, or Interests in, the Debtor or
any of its assets or properties, and, except as otherwise provided herein or in
the Confirmation Order, and regardless of whether any property shall have been
distributed or retained pursuant to the Plan on account of such Claims or
Interests, upon the Effective Date, the Debtor shall be deemed discharged and
released under section 1141(d)(1)(A) of the Bankruptcy Code from any and all
Claims and Interests, including, but not limited to, any conduct of the Debtor
and any and all demands and liabilities that arose before the Confirmation Date,
any liability (including withdrawal liability) to the extent such Claims relate
to services performed by employees of the Debtor prior to the Petition Date and
that arise from a termination of employment or a termination of any employee or
retiree benefit program, regardless of whether such termination occurred prior
to or after the Confirmation Date, and all debts of the kind specified in
sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not the
holder of a Claim based upon such debt accepted the Plan. The
Confirmation Order shall be a judicial determination of the discharge of all
liabilities of the Debtor, subject to the Effective Date occurring.
B. Vesting
10.2 Except
as otherwise provided in the Plan or in the Confirmation Order, on the Effective
Date, the Reorganized Debtor shall be vested with all of the property of the
Estate free and clear of all Claims, Liens, encumbrances, charges and Interests,
and shall thereafter hold, dispose or otherwise deal with such property and
operate its business free of any restrictions imposed by the Bankruptcy Code or
by the Bankruptcy Court. Prosecution of Causes of Action shall be the
exclusive responsibility of the Reorganized Debtor, which shall have sole and
absolute discretion over whether to prosecute or settle such Causes of
Action.
23
C. Exculpation
and Limitation of Liability
10.3 Notwithstanding
any other provision of this Plan, no holder of a Claim or Interest, no other
party in interest, none of their respective agents, employees, representatives,
financial advisors, attorneys, or affiliates, and no successors or assigns of
the foregoing, shall have any claim or right of action, whether in law or
equity, whether for breach of contract, statute, or tort claim, against the
Debtor, the Estate, the Reorganized Debtor, the Administrative Agent, the CIT First Lien Lenders, CIT Secured Lien Lenders,
the New Senior Secured Credit Facility Lenders or any of their respective
affiliates, representatives, present or former members, officers, directors,
employees, advisors, attorneys, or agents, for any act or omission in connection
with, relating to, or arising out of, the Chapter 11 Case, the pursuit of
Confirmation of the Plan, consummation of the Plan, or the administration of the
Plan or the property to be distributed under the Plan, except for their willful
misconduct or gross negligence.
D. Good
Faith
10.4 As
of the Confirmation Date, the Debtor shall be deemed to have solicited
acceptances of the Plan in good faith and in compliance with the applicable
provisions of the Bankruptcy Code. The Debtor and the New Senior
Secured Credit Facility Lenders have participated in good faith and in
compliance with section 1125(e) of the Bankruptcy Code in the offer and issuance
of the New Senior Preferred Stock, New Junior Preferred Stock and New Common
Stock under the Plan, and therefore are not, and on account of such offer,
issuance and solicitation will not be, liable at any time for the violation of
any applicable law, rule or regulation governing the solicitation of acceptances
or rejections of the Plan or the offer and issuance of the New Senior Preferred
Stock, New Junior Preferred Stock and New Common Stock under the
Plan.
E. Injunction
10.5 Except
as otherwise provided in the Plan, from and after the Confirmation Date, all
Persons who have held, hold, or may hold Claims against or Interests in the
Debtor prior to the Effective Date are permanently enjoined from taking any of
the following actions against the Debtor, the Reorganized Debtor, the New Senior
Secured Credit Facility Lenders and the Estate on account of any such Claims or
Interests: (a) commencing or continuing, in any manner or in any place, any
action or other proceeding; (b) enforcing, attaching, collecting or recovering
in any manner any judgment, award, decree or order; (c) creating, perfecting or
enforcing any lien or encumbrance; (d) asserting a setoff, right of subrogation
or recoupment of any kind against any debt, liability or obligation due to the
Debtor; and (e) commencing or continuing, in any manner or in any place, any
action that does not comply with or is inconsistent with the provisions of the
Plan; provided,
however, that
nothing contained herein shall preclude such persons from exercising their
rights pursuant to and consistent with the terms of this Plan.
24
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
A. Objections
to Claims
11.1 Objections
to Claims as to which no objection is pending as of the Confirmation Date may be
filed solely by the Debtor or the Reorganized Debtor. All Objections
to Claims shall be filed no later than sixty (60) calendar days after the Claims
Bar Date and Governmental Claims Bar Date, respectively; provided, however, that
objections to Claims of a “governmental unit” (which for the purpose hereof
shall have the meaning ascribed to it in section 502(b)(9) of the Bankruptcy
Code) shall be filed no later than 240 calendar days after the Petition
Date. The Reorganized Debtor shall be permitted and shall have the
authority to seek one or more extensions of such deadlines from the Bankruptcy
Court.
B. Payment
of Statutory Fees
11.2 All
fees payable under section 1930 of Title 28 of the United States Code, as
determined by the Bankruptcy Court at the Confirmation Hearing, shall be paid on
or before the Effective Date. All such fees that arise after the
Effective Date but before the closing of the Chapter 11 Case shall be paid from
funds otherwise available for distribution hereunder.
C. Severability
of Plan Provisions
11.3 If,
before Confirmation, the Bankruptcy Court holds that any provision of the Plan
is invalid, void or unenforceable, the Debtor, at its option and if acceptable
to the New Senior Secured Credit Facility Lenders, may amend or modify the Plan
to correct the defect, by amending or deleting the offending provision or
otherwise, or may withdraw the Plan. The Confirmation Order shall
constitute a judicial determination and shall provide that each term and
provision of the Plan, as it may have been amended or modified in accordance
with the foregoing, is valid and enforceable.
D. Successors
and Assigns
11.4 The
rights, benefits and obligations of any Person named or referred to in the Plan
shall be binding on, and shall inure to the benefit of, any heir, executor,
administrator, successor or assign of that Person.
E. Term
of Injunctions or Stays
11.5 Unless
otherwise provided herein or in the Confirmation Order, all injunctions or stays
in effect in the Chapter 11 Case, either by virtue of sections 105 or 362 of the
Bankruptcy Code or any order of the Bankruptcy Court, shall remain in full force
and effect until all distributions contemplated by this Plan have been made and
the Bankruptcy Court has entered an order closing the Chapter 11
Case. The injunctive provisions of section 524 and 1141 of the
Bankruptcy Code and those contained in Article X are permanent and shall not be
affected by this provision.
F. Notices
to Debtor
11.6 Any
notice, request, or demand required or permitted to be made or provided to or
upon the Debtor and the Reorganized Debtor under the Plan shall be (a) in
writing, (b) served by (i) certified mail, return receipt requested, (ii) hand
delivery, (iii) overnight delivery service, (iv) first class mail, or (v)
facsimile transmission, and (c) deemed to have been duly given or made when
actually received or, in the case of notice by facsimile transmission, when
received and telephonically confirmed, addressed as follows:
25
CROSS
CANYON ENERGY CORP.
6630
Cypresswood Drive, Suite. 200
Spring,
TX 77379
Fax:
|
832.559.6088
|
Attn:
|
Carl
A. Chase
|
with a
copy to:
THOMPSON
& KNIGHT LLP
333 Clay
Street, Suite 3300
Houston,
Texas 77002
Fax:
|
713.654.1871
|
Attn:
|
Rhett
G. Campbell
|
-
and-
THOMPSON
& KNIGHT LLP
919 Third
Avenue, 39th
Floor
New York,
NY 10019
Fax:
|
212.751.3113
|
Attn:
|
Ira
L. Herman
|
G. Governing
Law
11.7 Unless
a rule of law or procedure is supplied by federal law (including the Bankruptcy
Code and Bankruptcy Rules), the laws of (a) the State of Texas shall govern the
construction and implementation of the Plan and any agreements, documents, and
instruments executed in connection with the Plan other than the New Senior
Secured Credit Facility, which shall be governed by the laws of the State of New
York, (b) the laws of the state of incorporation of the Debtor shall
govern corporate governance matters with respect to such Debtor, and (c) the
laws of the state of incorporation of the Reorganized Debtor shall govern
corporate governance matters with respect to such Reorganized Debtor, in each
case without giving effect to the principles of conflicts of law
thereof.
DATED: January 28,
2010.
Respectfully
submitted,
CROSS
CANYON ENERGY CORP.
|
|||
|
By:
|
/s/ Carl A. Chase
|
|
Carl
A. Chase
Chief
Financial Officer
|
|||
26