UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT€¦ · · 2015-11-25united states...

UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT

In re O.W. Bunker Holding North America Inc., et al.,1 Debtors.

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Chapter 11 Case No. 14-51720 (JAM)) Jointly Administered

FIRST AMENDED DISCLOSURE STATEMENT WITH RESPECT TO THE DEBTORS’ LIQUIDATION PLANS

1 The last four digits of the Debtors’ taxpayer identification numbers follow in parentheses: O.W. Bunker Holding North America Inc. (7474), O.W. Bunker North America Inc. (7158) and O.W. Bunker USA Inc. (3556). The Debtors’ address is 281 Tresser Blvd., 2 Stamford Plaza, 15th Floor, Stamford, CT 06901.

3980635v15

Case 14-51720 Doc 1089 Filed 10/26/15 Entered 10/26/15 13:57:27 Desc Main Document Page 1 of 76

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THIS IS NOT A SOLICITATION OF ACCEPTANCES OR REJECTIONS OF THE DEBTORS’ LIQUIDATION PLANS. NEITHER ACCEPTANCES NOR REJECTIONS OF THE DEBTORS’ LIQUIDATION PLANS MAY BE SOLICITED UNTIL A DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT. THIS DISCLOSURE STATEMENT HAS BEEN SUBMITTED TO THE BANKRUPTCY COURT FOR APPROVAL, BUT HAS NOT YET BEEN APPROVED. INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT IS SUBJECT TO COMPLETION, AMENDMENT, AND SUPPLEMENTATION.

DISCLAIMER

THIS DISCLOSURE STATEMENT CONTAINS A SUMMARY OF CERTAIN PROVISIONS OF THE DEBTORS’ PLANS AND CERTAIN OTHER DOCUMENTS AND FINANCIAL INFORMATION. THIS DISCLOSURE STATEMENT HAS BEEN PREPARED IN ACCORDANCE WITH SECTION 1125 OF THE BANKRUPTCY CODE AND RULES 3016(B) AND (C) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AND NOT NECESSARILY IN ACCORDANCE WITH FEDERAL OR STATE SECURITIES LAWS OR OTHER NONBANKRUPTCY LAW. THE INFORMATION INCLUDED HEREIN IS FOR PURPOSES OF SOLICITING ACCEPTANCE OF THE PLAN AND SHOULD NOT BE RELIED UPON FOR ANY PURPOSE OTHER THAN TO DETERMINE HOW AND WHETHER TO VOTE ON THE PLAN. THE DEBTORS BELIEVE THAT THESE SUMMARIES ARE FAIR AND ACCURATE. THE SUMMARIES OF THE FINANCIAL INFORMATION AND THE DOCUMENTS WHICH ARE ATTACHED HERETO OR INCORPORATED BY REFERENCE HEREIN ARE QUALIFIED IN THEIR ENTIRETY BY REFERENCE TO SUCH INFORMATION AND DOCUMENTS. IN THE EVENT OF ANY INCONSISTENCY OR DISCREPANCY BETWEEN A DESCRIPTION IN THIS DISCLOSURE STATEMENT AND THE TERMS AND PROVISIONS OF THE PLAN, OR THE OTHER DOCUMENTS AND FINANCIAL INFORMATION INCORPORATED HEREIN BY REFERENCE, THE PLAN OR THE OTHER DOCUMENTS AND FINANCIAL INFORMATION, AS THE CASE MAY BE, SHALL GOVERN FOR ALL PURPOSES.

THE STATEMENTS AND FINANCIAL INFORMATION CONTAINED HEREIN

HAVE BEEN MADE AS OF THE DATE HEREOF UNLESS OTHERWISE SPECIFIED. HOLDERS OF CLAIMS AND EQUITY INTERESTS REVIEWING THIS DISCLOSURE STATEMENT SHOULD NOT INFER AT THE TIME OF SUCH REVIEW THAT THERE HAVE BEEN NO CHANGES IN THE FACTS SET FORTH HEREIN SINCE THE DATE HEREOF. EACH HOLDER OF A CLAIM OR EQUITY INTEREST ENTITLED TO VOTE ON THE PLAN SHOULD CAREFULLY REVIEW THIS DISCLOSURE STATEMENT AND THE PLAN IN THEIR ENTIRETY BEFORE CASTING A BALLOT. THIS DISCLOSURE STATEMENT DOES NOT CONSTITUTE LEGAL, BUSINESS, FINANCIAL, OR TAX


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ADVICE. ANY PERSONS DESIRING ANY SUCH ADVICE OR OTHER ADVICE SHOULD CONSULT WITH THEIR OWN ADVISORS.

NO PARTY IS AUTHORIZED TO GIVE ANY INFORMATION WITH RESPECT TO

THE PLAN OTHER THAN THAT WHICH IS CONTAINED IN THIS DISCLOSURE STATEMENT. NO REPRESENTATIONS CONCERNING THE DEBTORS OR THE VALUE OF THEIR PROPERTY HAVE BEEN AUTHORIZED BY THE DEBTORS OTHER THAN AS SET FORTH IN THIS DISCLOSURE STATEMENT. ANY INFORMATION, REPRESENTATIONS OR INDUCEMENTS MADE TO OBTAIN AN ACCEPTANCE OF THE PLAN OTHER THAN, OR INCONSISTENT WITH, THE INFORMATION CONTAINED HEREIN AND IN THE PLAN SHOULD NOT BE RELIED UPON BY ANY HOLDER OF A CLAIM OR EQUITY INTEREST.

WITH RESPECT TO CONTESTED MATTERS, ADVERSARY PROCEEDINGS,

AND OTHER PENDING, THREATENED OR POTENTIAL LITIGATION OR ACTIONS, THIS DISCLOSURE STATEMENT DOES NOT CONSTITUTE AND MAY NOT BE CONSTRUED AS AN ADMISSION OF FACT, LIABILITY, STIPULATION OR WAIVER, BUT RATHER AS A STATEMENT MADE IN SETTLEMENT NEGOTIATIONS.

THIS DISCLOSURE STATEMENT HAS NOT BEEN APPROVED OR

DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE STATEMENTS CONTAINED HEREIN.

ALTHOUGH THE DEBTORS HAVE USED THEIR BEST EFFORTS TO ENSURE

THE ACCURACY OF THE FINANCIAL INFORMATION PROVIDED IN THIS DISCLOSURE STATEMENT, THE FINANCIAL INFORMATION CONTAINED IN, OR INCORPORATED BY REFERENCE INTO, THIS DISCLOSURE STATEMENT HAS NOT BEEN AUDITED UNLESS INDICATED.

FOR THE CONVENIENCE OF HOLDERS OF CLAIMS AND EQUITY INTERESTS,

THIS DISCLOSURE STATEMENT SUMMARIZES THE TERMS OF THE PLAN, BUT THE PLAN ITSELF QUALIFIES ALL SUMMARIES. THE DISCLOSURE STATEMENT MAY NOT BE RELIED ON FOR ANY PURPOSE OTHER THAN TO DETERMINE WHETHER TO VOTE TO ACCEPT OR TO REJECT THE PLAN, AND NOTHING STATED HEREIN SHALL CONSTITUTE AN ADMISSION OF ANY FACT OR LIABILITY BY ANY PARTY, OR BE ADMISSIBLE IN ANY PROCEEDING INVOLVING THE DEBTORS OR ANY OTHER PARTY, OR BE DEEMED CONCLUSIVE EVIDENCE OF THE TAX OR OTHER LEGAL EFFECTS OF THE PLAN ON ANY DEBTORS OR HOLDERS OF CLAIMS OR EQUITY INTERESTS. CERTAIN OF THE STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT, BY NATURE, ARE FORWARD-LOOKING AND CONTAIN ESTIMATES AND ASSUMPTIONS. THERE CAN BE NO ASSURANCE THAT SUCH STATEMENTS WILL BE REFLECTIVE OF ACTUAL OUTCOMES. ALL HOLDERS OF CLAIMS OR EQUITY INTERESTS SHOULD CAREFULLY READ AND CONSIDER FULLY SECTION VII, “RISK FACTORS TO BE CONSIDERED,” OF THIS DISCLOSURE STATEMENT BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.


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THE STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT ARE

MADE AS OF THE DATE HEREOF, UNLESS ANOTHER TIME IS SPECIFIED HEREIN, AND THE DELIVERY OF THIS DISCLOSURE STATEMENT SHALL NOT CREATE AN IMPLICATION THAT THERE HAVE BEEN NO CHANGES IN THE INFORMATION STATED SINCE THE DATE HEREOF. HOLDERS OF CLAIMS AGAINST AND EQUITY INTERESTS IN THE DEBTORS SHOULD CAREFULLY READ THIS DISCLOSURE STATEMENT IN ITS ENTIRETY, INCLUDING THE PLAN, AND ANY OTHER EXHIBITS THERETO.


TABLE OF CONTENTS

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I. INTRODUCTION ............................................................................................................. 1

II. SOLICITATION AND VOTING PROCEDURES ........................................................... 4

A. Chapter 11 Generally ............................................................................................. 4

B. Notice to Holders of Claims and Equity Interests ................................................. 5

C. Voting Procedures, Ballots, and Voting Deadline ................................................. 6

D. Solicitation and Right to Vote on the Plan............................................................. 7

E. Class A Election ................................................................................................... 11

F. Release Opt Out Election ..................................................................................... 12

G. Disclosure Statement Enclosures ......................................................................... 12

H. Confirmation Hearing .......................................................................................... 13

III. OVERVIEW OF THE DEBTORS AND THEIR BUSINESSES; DESCRIPTION OF EVENTS LEADING TO COMMENCEMENT OF THE CASES ........................... 14

A. Background .......................................................................................................... 14

B. Reasons for Commencing the Chapter 11 Cases ................................................. 15

C. Significant Events Which Occurred During the Chapter 11 Cases ..................... 16

D. Major Matters During the Chapter 11 Bankruptcy Cases .................................... 16

IV. THE LIQUIDATION PLANS ......................................................................................... 26

A. Overall Structure of the Plan................................................................................ 27

B. Unclassified Claims ............................................................................................. 28

C. Classification and Treatment of Claims and Equity Interests .............................. 30

D. Special Provision Regarding Unimpaired and Reinstated Claims ....................... 35

E. Means for Implementation of the Plan ................................................................. 36

F. Corporate Governance ......................................................................................... 39

G. The Liquidating Trusts ......................................................................................... 39

H. Confirmation of the Plan ...................................................................................... 45

I. Provisions Governing Distributions ..................................................................... 48

J. Retention of Jurisdiction ...................................................................................... 51

K. Executory Contracts and Unexpired Leases ........................................................ 52

L. Procedures for Resolving Disputed, Contingent, and Unliquidated Claims ........ 55

M. Effectiveness of the Plan ...................................................................................... 55


TABLE OF CONTENTS (continued)

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N. Miscellaneous Provisions..................................................................................... 57

V. CONFIRMATION OF THE PLAN................................................................................. 60

A. General Requirements of Section 1129 ............................................................... 60

B. Unfair Discrimination and Fair and Equitable Tests ........................................... 62

C. Feasibility ............................................................................................................. 63

D. Best Interests Test ................................................................................................ 63

E. Acceptance and Cramdown ................................................................................. 64

VI. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN ................ 65

A. Tax Consequences to the Debtors ........................................................................ 65

B. Tax Consequences To Creditors and Liquidating Trust Beneficiaries ................ 66

C. Tax Consequences to Holders of Equity Interests ............................................... 66

VII. RISK FACTORS TO BE CONSIDERED ....................................................................... 66

A. Failure to Receive Requisite Acceptances of the Plan ......................................... 66

B. Failure to Confirm the Plan .................................................................................. 66

C. Failure to Consummate the Plan .......................................................................... 67

D. Delays of Confirmation or the Effective Date ..................................................... 67

E. Risk of Successfully Creating Value in Liquidation Trust .................................. 67

F. Forward Looking Statements in this Disclosure Statement May Prove to be Inaccurate ........................................................................................................ 67

VIII. ALTERNATIVES TO CONFIRMATION AND CONSUMMATION OF THE PLAN ............................................................................................................................... 68

A. Liquidation Under Chapter 7 of the Bankruptcy Code ........................................ 68

B. Alternative Plan(s) of Reorganization ................................................................. 68

C. Dismissal of the Chapter 11 Cases....................................................................... 68

IX. CONCLUSION AND RECOMMENDATION ............................................................... 69


I. INTRODUCTION

The Debtors2 in the Chapter 11 Cases submit this Disclosure Statement pursuant to section 1125 of the Bankruptcy Code to Holders of Claims against, and Equity Interests in, the Debtors in connection with (a) the solicitation of acceptances of the Debtors’ Liquidation Plans (the “Plan”) filed by the Debtors with the Bankruptcy Court and (b) the Confirmation Hearing scheduled to begin on December 10, 2015 at 10:00 a.m. prevailing Eastern Time at the United States Bankruptcy Court, 157 Church Street, 18th Floor, New Haven, CT 06510 and may continue thereafter as the Court may direct.

The Debtors each filed a petition for relief under chapter 11 of the Bankruptcy Code in the Bankruptcy Court on November 13, 2014. Concurrently with the filing of this Disclosure Statement, the Debtors filed the Plan, which sets forth how Claims against, and Equity Interests in, the Debtors will be treated. This Disclosure Statement describes certain aspects of the Plan, the Debtors’ former operations, significant events occurring in the Chapter 11 Cases, and other related matters.

FOR A COMPLETE UNDERSTANDING OF THE PLAN, YOU SHOULD READ THE DISCLOSURE STATEMENT, THE PLAN, AND THE EXHIBITS AND SUPPLEMENTS THERETO IN THEIR ENTIRETY.

OWB Holding has no assets apart from its Equity Interests in OWB NA and OWB USA, which Equity Interests will be cancelled and will receive no Distributions pursuant to the Plan. Accordingly, as to OWB Holding only, the Plan constitutes a motion by which OWB Holding requests that the Bankruptcy Court dissolve or grant OWB Holding the authority to dissolve on the Effective Date pursuant to applicable state law.

The Plan provides for the liquidation and conversion of all of OWB NA’s and OWB USA’s remaining assets to Cash, and the distribution of the net proceeds realized therefrom to the Holders of Allowed Claims in accordance with the priorities established by the Bankruptcy Code and such priorities have been modified by the agreements embodied in the Plan. Pursuant to the Plan the assets of OWB USA will be contributed to the OWB USA Liquidating Trust and the assets of OWB NA will be contributed to the OWB NA Liquidating Trust, maintained in separate accounts, and used to pay the costs and expenses of the applicable Liquidating Trust (including the costs of each Liquidating Trust’s Professionals) and to make Distributions in accordance with the Plan.3

The primary unliquidated assets of OWB NA’s and OWB USA’s Estates are the Debtors’ interests in Supply Receivables and certain pending litigation. This litigation includes dozens of interpleader and maritime arrest actions pending in jurisdictions throughout the U.S. and abroad relating to the Debtors’ Supply Receivables. In these proceedings, the Debtors have asserted or

2 Unless otherwise defined herein, all capitalized terms herein shall have the meanings ascribed to them in the Plan.

3 This summary is intended solely to provide an overview of the Plan. The summary shall not be binding on any of the Debtors, and in the event of any conflict between the summary and any provision of the Plan, the Plan is controlling.


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may assert a Claim against a contract counterparty, customer, vessel, posted bond, escrow account, or interpleader stake securing the Debtors’ right to payment on its receivables. Other suppliers, brokers and intermediaries, including ING Bank as purported assignee of the Debtors’ and certain of their affiliates’ Supply Receivables, have asserted or may assert competing claims in these interpleader and arrest actions.

In addition to Supply Receivables at issue in pending litigation, OWB USA and OWB NA both have a substantial number of Supply Receivables that are not the subject of pending litigation and that remain to be collected directly from customers. The Debtors, with the cooperation of ING Bank, have begun the process of making demands for payment on account of these remaining Supply Receivables, by which demands customers are being instructed to pay the Contract Supplier in respect of a given Supply Receivable according to the terms of the relevant outstanding invoice. The Debtors intend to work diligently to collect these outstanding Supply Receivables prior to the Confirmation Hearing.

As a result of, among other things, disputes between the Debtors and ING Bank, which are described in more detail in section III.D.6, the Debtors, the Committee, and ING Bank participated in mediation with Judge Alan H. Nevas (ret.), formerly of the United States District Court for the District of Connecticut.

As a result of these mediation sessions, the Debtors, the Committee, and ING Bank reached a global resolution of their disputes, which is embodied in the Plan as well as the terms of the Confirmation Alternative Settlement, which is described in more detail in Section III.D.7. Though negotiations with NuStar are continuing, there is no agreement with NuStar at this time and there is no guarantee that an agreement with NuStar will occur in the future. Additional information regarding the settlement discussions with NuStar as well as the details of the Confirmation Alternative Settlement are contained in Section III.D.7.

The Debtors believe the Plan provides the best possible opportunity for Holders of Allowed General Unsecured Claims to maximize their recoveries from the Debtors’ Estates. ING Bank has asserted Claims against OWB NA and OWB USA that are currently estimated to be in excess of $715 million and $734 million, respectively, certain of which Claims are secured by Liens that the Debtors have sought to avoid through litigation pending before the Bankruptcy Court as preferential transfers pursuant chapter 5 of the Bankruptcy Code. Among the features of the settlement with ING Bank embodied in the Plan, the agreed “waterfall” in accordance with which the Liquidating Trusts will make Distributions provides substantial value to the Debtors’ general unsecured creditors who would otherwise run a substantial risk of having their Allowed Claims massively diluted by ING Bank’s Allowed Claims even in the event the Debtors were successful in avoiding ING Bank’s Liens.

Specifically, the agreed waterfall includes a preferential distribution to certain non-ING Bank affiliated and non-OWB affiliated general unsecured creditors that elect or are deemed to elect to take a preferred distribution from the Liquidating Trusts in exchange for assigning any maritime lien rights they may have against the Debtors’ customers’ property (including vessels), returning to the Debtors’ Estates any funds collected in connection with their prior enforcement of their maritime lien rights, and waiving their ability to assert administrative expense status with respect to Claims that the Debtors and the Committee have determined do not qualify for such


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treatment. The Debtors’ projections indicate that, should the Plan be confirmed, proceeds from the liquidation of the Liquidating Trust Assets will be sufficient to fund the preferred Distributions for OWB USA’s and OWB NA’s general unsecured creditors that are not Foreign Affiliates or ING Bank, which distributions the Debtors estimate could amount to a 25% recovery for Electing OWB NA Claimants and a 40% recovery for Electing OWB USA Claimants.

The Debtors believe that creditor recoveries are at substantial risk absent confirmation of the Plan. Absent confirmation of the Plan and the embodied settlement with ING Bank, should the Debtors be unsuccessful in seeking avoidance of ING Bank’s Liens, the Secured Claim held by ING Bank would almost certainly result in no Distributions being made to Holders of General Unsecured Claims. Although the Debtors and the Committee believe that the avoidance action against ING Bank ultimately would be successful, the Debtors’ Estates may lack the resources necessary to pursue the litigation, and the time necessary to litigate the action against ING Bank to a conclusion would at a minimum substantially delay Distributions to creditors. Moreover, as noted above, even if the Debtors were successful in avoiding ING Bank’s Liens, the size of ING Bank’s general unsecured claim would severely dilute recoveries to other Holders of Allowed General Unsecured Claims, unless the Debtors were successful in further time consuming and costly litigation seeking to subordinate or otherwise disallow ING Bank’s resulting unsecured Claims.

In sum, the Debtors and the Committee believe that Holders of Allowed Claims will fare better under the Plan than under a Chapter 7 liquidation of OWB NA and OWB USA or any other plan alternative.

Attached as exhibits to this Disclosure Statement are copies of the following:

1. The Plan (Exhibit A); 2. Liquidation Analysis (Exhibit B). 3. The List of Joint Direction Receivables (Exhibit C) 4. The Confirmation Alternative Settlement (Exhibit D)

In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims (including Fee Claims) and Priority Tax Claims have not been classified under the Plan. Section IV.B-C. below describes the treatment of Allowed Unclassified Claims. The following table briefly summarizes the treatment of the Classes of Allowed Claims and Allowed Equity Interests.

Class Designation Impairment Entitlement to

Vote Estimated Recovery

1 Non-Tax Priority Claims Against OWB USA

NO NO 100.0%


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2 Secured Claims Against OWB USA

NO NO 100.0%

3 OWB USA Affiliated Unsecured Claims

YES YES 0.4%

4 OWB USA Unaffiliated Trade Claims

YES YES Electing OWB USA Claimants 39.9%

Non-Electing OWB USA Claimants 0.4%

5 Subordinated Claims Against OWB USA

YES NO 0.0%

6 Equity Interests in OWB USA YES NO 0.0%

7 Non-Tax Priority Claims Against OWB NA

NO NO 100.0%

8 Secured Claims Against OWB NA

NO NO 100.0%

9 OWB NA Affiliated Unsecured Claims

YES YES 1.0%

10 OWB NA Unaffiliated Trade Claims

YES YES Electing OWB NA Claimants 25.6%

Non-Electing OWB NA Claimants 1.0%

11 Subordinated Claims Against OWB NA

YES NO 0.0%

12 Equity Interests in OWB NA YES NO 0.0%

II. SOLICITATION AND VOTING PROCEDURES

A. Chapter 11 Generally

Under chapter 11 of the Bankruptcy Code, a debtor may reorganize its business or liquidate its assets for the benefit of its creditors, interest holders (such as shareholders, partners or members), and other parties in interest. The culmination of many chapter 11 cases is the confirmation of a plan specifying the treatment to be afforded to holders of claims against or interests in a debtor.


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A chapter 11 plan is made effective only after it has been confirmed by the bankruptcy court. Upon the effective date of a plan, it becomes binding upon the debtor, any issuer of securities under the plan, any person acquiring property under the plan, and any creditor or interest holder of the debtor. Subject to certain limited exceptions, confirmation of the plan releases the debtor from any debt that arose before the date of confirmation of the plan in exchange for the consideration specified under the confirmed plan. Thus, following confirmation, creditors and interest holders are deprived of their pre-bankruptcy rights and entitlements and instead are limited solely to the rights and entitlements specified by the plan. In these Chapter 11 Cases, the Plan specifies the payments, distributions and other treatment to be afforded to Holders of Allowed Claims against the Debtors. Holders of Subordinated Claims against OWB NA, Subordinated Claims against OWB USA, and Equity Interests in the Debtors will not receive any Distributions under the Plan. Certain Holders of Allowed Claims are entitled to vote on the Plan. To confirm the Plan, certain voting requirements and statutory tests must be satisfied. The statutory tests are designed in large measure to protect the interests of Holders of Claims against, or Equity Interests, in the Debtors that either are not entitled to vote on the Plan or that vote to reject the Plan, but nevertheless will be bound by the provisions of the Plan if it is confirmed. For a more complete description of the requirements of such tests and how the Plan satisfies such tests, see Section V of this Disclosure Statement.

B. Notice to Holders of Claims and Equity Interests

On [October __, 2015], after notice and a hearing, the Bankruptcy Court approved this Disclosure Statement as containing adequate information to enable hypothetical, reasonable investors typical of the Holders of Claims and Equity Interests in each Class under the Plan to make an informed judgment as to whether to reject or accept the Plan. Approval of the Disclosure Statement by the Bankruptcy Court does not constitute a determination as to the fairness or the merits of the Plan and does not guarantee that the Bankruptcy Court will approve the Plan.

The Debtors believe that the Plan provides for the best possible recoveries to creditors and believes that acceptance of the Plan is in the best interests of each and every Class of creditors entitled to vote. The Debtors recommend that you vote to ACCEPT the Plan accompanying this Disclosure Statement.

ALL HOLDERS OF CLAIMS AND/OR EQUITY INTERESTS SHOULD READ THIS DISCLOSURE STATEMENT AND ALL EXHIBITS HERETO, INCLUDING THE PLAN, BEFORE VOTING ON THE PLAN. ALL EXHIBITS OR SCHEDULES TO THIS DISCLOSURE STATEMENT ARE ANNEXED HERETO AND SUPPLEMENTED WITH CERTAIN ADDITIONAL MATERIALS. FINAL EXHIBITS IN CONNECTION WITH PLAN WILL BE FILED IN A PLAN SUPPLEMENT NO LATER THAN TEN (10) BUSINESS DAYS BEFORE THE VOTING DEADLINE.

THE PLAN PROVISION SUMMARIES AND ALL OTHER STATEMENTS MADE IN THIS DISCLOSURE STATEMENT ARE QUALIFIED IN THEIR ENTIRETY BY


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REFERENCE TO THE PLAN, THE EXHIBITS ATTACHED HERETO, AND ANY OTHER DOCUMENTS REFERENCED HEREIN OR THEREIN.

C. Voting Procedures, Ballots, and Voting Deadline

After carefully reviewing this Disclosure Statement, including the exhibits hereto and the detailed instructions accompanying your Ballot, each Holder of an Allowed Claim in an Impaired Class entitled to vote should vote to accept or reject the Plan on the enclosed Ballot, sign the Ballot, and return the Ballot in the pre-addressed envelope so that it is received no later than December 3, 2015 at 4:00 p.m. prevailing Eastern Time (the “Voting Deadline”). All Ballots other than Ballots in respect of Class 3 – OWB USA Affiliated Unsecured Claims that are ING Bank Deficiency Claims or Ballots in respect of Class 9 – OWB NA Affiliated Unsecured Claims that are ING Bank Deficiency Claims must be returned to by first class mail, overnight delivery, or email to counsel to the Debtors’, which pursuant to the Solicitation Procedures Order will be acting as the Debtors’ balloting agent, at the following address:

MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 123 South Broad Street Philadelphia, PA 19109 Attn: Davis Lee Wright

Email: [email protected] Tel: 302-504-7828

All Ballots received in respect of Class 3 – OWB USA Affiliated Unsecured Claims that

are ING Bank Deficiency Claims or Class 9 – OWB NA Affiliated Unsecured Claims that are ING Bank Deficiency Claims must be returned by first class mail, overnight delivery, or email to the ING Tabulation Agent at the following address:

LUCID ISSUER SERVICES LIMITED

Leroy House 436 Essex Road London, NI 3QP

England Attention: David Shilson Tel: +44 (0)20 7704 0880

Email: [email protected] If you received a damaged Ballot, lost your Ballot, or if you have any questions

concerning the Ballot or the voting procedures generally, please contact the Balloting Agent or counsel to ING Bank (if you are the Holder of a Class 3 – OWB USA Affiliated Unsecured Claim that is an ING Bank Deficiency Claims or a Class 9 – OWB NA Affiliated Unsecured Claim that is an ING Bank Deficiency Claim) at the addresses indicated above.

TO BE COUNTED YOUR BALLOT MUST BE SIGNED AND RECEIVED BY THE BALLOTING AGENT OR COUNSEL TO ING BANK N.V., AS APPLICABLE, AT THE ADDRESSES INDICATED ABOVE BY THE VOTING DEADLINE. ANY BALLOT RECEIVED WHICH DOES NOT INDICATE AN ACCEPTANCE OR REJECTION OF THE


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PLAN OR WHICH INDICATES BOTH ACCEPTANCE AND REJECTION OF THE PLAN WILL NOT BE COUNTED. ONLY SIGNED AND COMPLETED BALLOTS WILL BE ACCEPTED.

VOTING ON THE PLAN BY EACH HOLDER OF AN IMPAIRED CLAIM ENTITLED TO VOTE ON THE PLAN IS IMPORTANT. IF YOU HOLD CLAIMS IN MORE THAN ONE CLASS, YOU MAY RECEIVE MORE THAN ONE BALLOT. YOU SHOULD COMPLETE, SIGN, AND RETURN EACH BALLOT YOU RECEIVE.

Unless otherwise indicated, all amounts used or referenced herein or in the Plan are in Cash.

Pursuant to the Bankruptcy Code, only classes of claims against or equity interests in a debtor that are “impaired” under the terms and provisions of a plan are entitled to vote to accept or reject a plan. A class is “impaired” if the legal, equitable, or contractual rights attaching to the claims or equity interests of that class are modified, other than by curing defaults and reinstating maturities or by payment in full in cash. Classes of claims and equity interests that are not impaired are not entitled to vote on a plan and are deemed to have accepted a plan. In addition, classes of claims and equity interests that receive no distributions under a plan are not entitled to vote on the plan and are deemed to have rejected the plan.

The classification of Claims and Equity Interests for the Chapter 11 Cases is summarized, together with notations as to whether each Class of Claims or Equity Interests is Impaired or Unimpaired, under Article III of the Plan: “Treatment of Claims and Equity Interests.” Pursuant to section 502 of the Bankruptcy Code and Bankruptcy Rule 3018 and in accordance with the Order (I) Approving Disclosure Statement, (II) Approving Procedures to Solicit votes on the Debtors’ Liquidation Plans, and (III) Establishing Notice and Objection Procedures for Confirmation of the Debtors’ Liquidation Plans (the “Solicitation Procedures Order”), the Bankruptcy Court may estimate and temporarily allow a Claim for voting on the Plan.

In most cases, each Ballot enclosed with this Disclosure Statement has been encoded with the amount of your Claim for voting purposes (if your claim is or becomes a Disputed Claim, this amount may not be the amount ultimately Allowed for purposes of Distributions) and the Debtor and Class to which your Claim has been attributed. PLEASE FOLLOW THE DIRECTIONS ON THE ENCLOSED BALLOT(S) CAREFULLY.

The Plan and the Disclosure Statement can be reviewed at the Office of the Clerk of the Bankruptcy Court, or on the Bankruptcy Court’s website at http://www.ctb.uscourts.gov (PACER login required). You may also obtain a copy of the Plan, the Disclosure Statement, and all exhibits to the Disclosure Statement by contacting Davis Lee Wright, Montgomery, McCracken, Walker & Rhoads, LLP, 123 South Broad Street, Philadelphia, PA 19109; Tel.: (215) 772-1500.

D. Solicitation and Right to Vote on the Plan

Pursuant to the provisions of the Bankruptcy Code, only Holders of Allowed Claims or Allowed Equity Interests that are Impaired under the terms and provisions of the Plan are entitled


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to vote to accept or reject the Plan. Holders of Allowed Claims or Equity Interests in Classes of Claims or Equity Interests that are Unimpaired under the terms of the Plan are conclusively presumed to have accepted the Plan and are not entitled to vote.

Holders of Claims in Classes 1, 2, 7, and 8 are Unimpaired, are conclusively presumed to have accepted the Plan, and therefore do not have the right to vote on the Plan.

Holders of Claims or Equity Interests in Classes 5, 6, 11, and 12 will not receive or maintain any property under the Plan, and therefore are conclusively presumed to reject the Plan.

Holders of Claims in Classes 3, 4, 9, and 10 are Impaired and entitled to receive certain property under the Plan. Therefore, the Debtors are soliciting acceptances from Holders of Allowed Claims in Classes 3, 4, 9, and 10.

The Bankruptcy Code defines “acceptance” of a plan by a class of claims as acceptance by creditors in that class that hold at least two-thirds in dollar amount and more than one-half in number of the claims voting to accept or reject the plan. For a complete description of the requirements for confirmation of the Plan, see Section V herein “Confirmation of the Plan.”

If an Impaired Class of Claims or Equity Interests rejects the Plan or is deemed to reject the Plan, the Debtors have the right to request confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code. Section 1129(b) of the Bankruptcy Code permits the confirmation of the Plan notwithstanding its non-acceptance by one or more Impaired Classes of Claims or Equity Interests if the proponent thereof (in these cases, the Debtors) comply with the provisions of that section. Under that section, a plan may be confirmed by a court if it does not “discriminate unfairly” and is “fair and equitable” with respect to each non-accepting class. For a more detailed description of the requirements for confirmation of a non-consensual plan, see Section V.E. herein “Acceptance and Cramdown.”

THE DEBTORS ARE THE PROPONENTS OF THE PLAN, BELIEVE THAT THE PLAN IS LIKELY TO PROVIDE THE MAXIMUM ACHIEVABLE RECOVERY FOR UNSECURED CREDITORS, AND RECOMMEND THAT CREDITORS VOTE TO ACCEPT THE PLAN. THE DEBTORS ALSO REFER TO AND INCORPORATE HEREIN THE LETTER OF SUPPORT FOR THE PLAN ACCOMPANYING THIS DISCLOSURE STATEMENT PROVIDED BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS ALSO RECOMMENDING THAT CREDITORS VOTE TO ACCEPT THE PLAN.

The Debtors believe that through the Plan, (a) Holders of Allowed Claims against OWB NA and OWB USA will obtain substantially greater recovery from such Debtors’ Estates than the recovery that would be available if the assets of those Debtors were liquidated under Chapter 7 of the Bankruptcy Code and (b) the Plan will afford Holders of Allowed Claims the opportunity to obtain a recovery greater than would be afforded under any other plan not supported by the Debtors.

The Disclosure Statement Order provides that any non-voting holder of a Claim who is a member of an Impaired Class entitled to vote on the Plan, but in which no votes are actually cast,


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will be deemed to have accepted the Plan for purposes of sections 1129(a)(8) and 1129(b) of the Bankruptcy Code but such acceptance may not be used for the purpose of effectuating a cramdown.

Pursuant to the Solicitation Procedures Order, solely for purposes of voting to accept or reject the Plan and not for the purpose of allowance of, or distribution on account of, a Claim and without prejudice to the rights of the Debtors or other parties in interest in any other context, each Claim within a Class of Claims entitled to vote to accept or reject the Plan will be temporarily Allowed in an amount equal to:

(a) The claim listed in a Debtor’s Schedules, provided that (i) such claim is not scheduled as contingent, unliquidated, undetermined or disputed and (ii) no proof of claim has been timely filed (or otherwise deemed timely filed by the Bankruptcy Court under applicable law);

(b) The noncontingent and liquidated amount specified in a Proof of Claim timely filed with the Bankruptcy Court (or otherwise deemed timely filed by the Bankruptcy Court under applicable law) to the extent the Proof of Claim is not the subject of an objection filed no later than the Voting Record Date (or, if such Claim has been resolved pursuant to a stipulation or order entered by the Bankruptcy Court, or otherwise resolved by the Bankruptcy Court, with the amount of such Claim is set forth in such stipulation or order);

(c) The amount temporarily allowed by the Bankruptcy Court for voting purposes, pursuant to Bankruptcy Rule 3018(a), provided that a motion is brought, notice is provided, and a hearing is held prior to the Confirmation Hearing, in accordance with the Bankruptcy Code and the Bankruptcy Rules;

(d) With respect to Ballots cast by alleged creditors whose claims (i) are not listed on a Debtors’ Schedules or (ii) are listed as disputed, contingent and/or unliquidated on a Debtors’ Schedules, but who have timely filed Proofs of Claim in unliquidated or unknown amounts that are not the subject of an objection filed before the commencement of the Confirmation Hearing, such Ballots shall be counted in determining whether the numerosity requirement of section 1126(c) of the Bankruptcy Code has been met, but shall not be counted in determining whether the aggregate claim amount requirement has been met.

If a creditor seeks to have a claim temporarily allowed for purposes of voting to accept or reject the Plan pursuant to Bankruptcy Rule 3018(a), such creditor is required to file a motion (“Claims Estimation Motion”) for such relief no later than November 16, 2015 at 4:00 p.m. prevailing Eastern Time, and that the Bankruptcy Court will schedule a hearing on such motion for a date prior to the Confirmation Hearing. If a creditor casts a Ballot and has timely filed a Proof of Claim (or has otherwise filed a Proof of Claim that has been deemed timely filed by the Bankruptcy Court under applicable law) but the creditor’s Claim is the subject of an objection filed no later than the Voting Record Date, that creditor’s Ballot will not be counted, unless such Claim is temporarily allowed by the Bankruptcy Court for voting purposes, pursuant to Bankruptcy Rule 3018(a), after a Claims Estimation Motion is brought by such creditor, notice is provided, and a hearing is held by the Bankruptcy Court prior to the Confirmation Hearing. Notwithstanding the foregoing, if an objection to a Claim requests that such Claim be


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reclassified and/or allowed in a fixed, reduced amount, such claimant’s Ballot shall be counted in such reduced amount and/or as the reclassified category.

The following types of voting procedures will be used in tabulating Ballots:

(a) For purposes of the numerosity requirement of section 1126(c) of the Bankruptcy Code, separate claims held by a single creditor in a particular Class will be aggregated as if such creditor held one claim against the Debtors in such class, and the votes related to such claims will be treated as a single vote to accept or reject the Plan.

(b) Holders of Claims must vote all of their Claims within a particular Class either to accept or reject the Plan and may not split the vote. Accordingly, a Ballot (or multiple Ballots with respect to multiple Claims within a single Class) that partially rejects and partially accepts the Plan will not be counted.

(c) a Ballot shall be disregarded if the Bankruptcy Court determines, after notice and a hearing, that a vote was not solicited or procured in good faith or in accordance with the Bankruptcy Code;

(d) all votes to accept or reject the Plan must be cast by using the appropriate Ballot and in accordance with the voting instructions attached to each Ballot and/or as set forth on the Ballot and votes cast in any other manner may not be counted;

(e) Ballots in respect of Class 3 and Class 9 Claims that are ING Bank Deficiency Claims shall be delivered to Lucid Issuer Services Limited, a third-party vendor (the “ING Tabulation Agent”) that will be retained by ING Bank (and not by the Debtors). The ING Tabulation Agent will be solely responsible for coordinating the tabulation of votes on such Claims and the preparation of master Ballots (“Master Ballots”) reporting the results of voting on ING Bank Deficiency Claims in each of Class 3 and Class 9. ING Bank will submit the Master Ballots to the Balloting Agent by the Voting Deadline.4 The Balloting Agent will not be required to independently verify the information reported by the ING Tabulation Agent;

(f) Ballots must be delivered to the Balloting Agent (or the ING Tabulation Agent if the Ballots are in respect of ING Bank Deficiency Claims) by first class mail, overnight delivery or electronic mail;

(g) any Ballot that is unsigned or has a non-original signature shall not be counted;

(h) any Ballot that partially accepts and partially rejects the Plan shall not be counted;

4 The Balloting Agent will provide the ING Tabulation Agent with forms of Ballot and Master Ballot to be delivered to the Holders of ING Deficiency Claims. The ING Tabulation Agent will be solely responsible for completing and delivering the Ballots to Holders of ING Deficiency Claims in Classes 3 and 9.


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(i) any Person entitled to vote to accept or reject the Plan may change its vote before the Voting Deadline by casting a superseding Ballot so that it is received by the Balloting Agent on or before the Voting Deadline;

(j) as to any Person that is entitled to vote and casts more than one Ballot voting the same Claim before the Voting Deadline, only the last Ballot timely received shall count;

(k) if the Balloting Agent receives multiple Ballots in one Class from the Holder of a Claim on the same day but which are voted inconsistently, only the Ballots accepting the Plan shall be counted;

(l) any executed Ballot timely received by the Balloting Agent that does not indicate either an acceptance or a rejection of the Plan shall not be counted; and

(m) any executed Ballot that indicates both acceptance and rejection of the Plan shall not be counted.

Please see the Solicitation Procedures Order attached hereto as Exhibit B and your Ballot for other provisions concerning solicitation and voting.

E. Class A Election.

The Ballots distributed to Holders of OWB NA Unaffiliated Trade Claims and Holders of OWB USA Unaffiliated Trade Claims will include an option to opt out of the OWB NA Class A Election or the OWB USA Class A Election, as applicable.

1. OWB NA Class A Election. Each Holder of an Allowed OWB NA Unaffiliated Trade Claim (whether or not such Holder votes to accept or reject the Plan) will have the opportunity to elect to receive an OWB NA Class A Trust Interest, which will entitle such Holder to a participate in Distributions made on account of a “liquidation preference” that will be paid prior to any Distributions made on account of ING Bank’s allowed claims (among other Claims) up to the lesser of (i) its Pro Rata Share of $2.5 million and (ii) 25% of such Holder’s Allowed OWB NA Unaffiliated Trade Claim.

In order to receive this preferential treatment under the Plan the electing Holder must: (a) assign to the OWB NA Liquidating Trust any and all of such Holder’s Assigned Rights (which include all rights to assert maritime lien claims directly against vessels in respect of OWB NA Supply Receivables); (b) return any and all proceeds collected at any time on or after the Petition Date on account of such Holder’s Assigned Rights to the OWB NA Liquidating Trust other than Distributions received pursuant to the Plan; and (c) waive any and all rights to seek administrative priority status under section 503(b)(9) of the Bankruptcy Code with respect to any of such Holder’s Claims against OWB NA except to the extent (i) Section 503(b)(9) Claims held by such Holder are included on the OWB NA 503(b)(9) Schedule or (ii) such Holder, OWB NA, the Committee, and ING Bank may otherwise agree.

Holders of Allowed OWB NA Unaffiliated Trade Claims that do not wish to accept the OWB NA Class A Election and the preferential treatment making such an election


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will afford them must return a Ballot voting to accept or reject the Plan and must affirmatively decline to accept the OWB NA Class A Election by checking the appropriate box on the Ballot. Holders of Allowed OWB NA Unaffiliated Trade Claims that (i) fail to timely deliver a Ballot to the Balloting Agent, (ii) fail to affirmatively decline the OWB NA Class A Election as permitted on the Ballot, or (iii) fail to vote to accept or reject the Plan on their Ballot will be deemed to have made the OWB NA Class A Election.

2. OWB USA Class A Election. Each Holder of an Allowed OWB USA Unaffiliated Trade Claim (whether or not such Holder votes to accept or reject the Plan) will have the opportunity to elect to receive an OWB USA Class A Trust Interest, which will entitle such Holder to a participate in Distributions made on account of a “liquidation preference” that will be paid prior to any Distributions made on account of ING Bank’s allowed Claims (among other Claims) up to the lesser of (i) its Pro Rata Share of $5.3 million and (ii) 40% of such Holder’s Allowed OWB USA Unaffiliated Trade Claim.

In order to receive this preferential treatment under the Plan the electing Holder must: (a) assign to the OWB USA Liquidating Trust any and all of such Holder’s Assigned Rights (which include all rights to assert maritime lien claims directly against vessels in respect of OWB USA Supply Receivables); (b) return any and all proceeds collected any time on or after the Petition Date on account of such Holder’s Assigned Rights to the OWB USA Liquidating Trust other than Distributions received pursuant to the Plan; and (c) waive any and all rights to seek administrative priority status under section 503(b)(9) of the Bankruptcy Code with respect to any of such Holder’s Claims against OWB USA.

Holders of Allowed OWB USA Unaffiliated Trade Claims that do not wish to accept the OWB USA Class A Election and the preferential treatment making such an election will afford them must return a Ballot voting to accept or reject the Plan and must affirmatively decline to accept the OWB USA Class A Election by checking the appropriate box on the Ballot. Holders of Allowed OWB USA Unaffiliated Trade Claims that (i) fail to timely deliver a Ballot to the Balloting Agent, (ii) fail to affirmatively decline the OWB USA Class A Election as permitted on the Ballot, or (iii) fail to vote to accept or reject the Plan on their Ballot will be deemed to have made the OWB USA Class A Election.

F. Release Opt Out Election

Holders of Allowed OWB USA Unaffiliated Trade Claims and Allowed OWB NA Unaffiliated Trade Claims that decline the OWB USA Class A Election and the OWB NA Class A Election, respectively, may choose to opt out of providing the releases provided for in Article XIII.E of the Plan by marking the appropriate box on the Ballots that will be distributed to such Holders in respect of the Claims. Holders that do not return ballots and, also, affirmatively opt out of the releases provided in the Plan by checking the appropriate box on the ballots will be deemed to have granted such releases.

G. Disclosure Statement Enclosures

If you are entitled to vote on the Plan, accompanying this Disclosure Statement are copies of (a) the notice of, among other things, the time for submitting Ballots to accept or reject the


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Plan, the date, time, and place of the Confirmation Hearing, and the time for filing objections to confirmation of the Plan; (b) one or more Ballots (with accompanying return postage pre-paid envelopes) to be used by you in voting to accept or reject the Plan; and (c) other solicitation documents substantially in the form approved by the Bankruptcy Court pursuant to the Solicitation Procedures Order.

H. Confirmation Hearing

Pursuant to section 1128 of the Bankruptcy Code, the Confirmation Hearing will be held before the Honorable Julie A. Manning, at the United States Bankruptcy Court, District of Connecticut, 157 Church Street, 18th Floor, New Haven, CT 06510 beginning on December 10, 2015 at 10:00 a.m prevailing Eastern Time and continuing thereafter as the Court may direct. The Bankruptcy Court has directed that objections, if any, to confirmation of the Plan be served and filed that they are received on or before December, 3, 2015 at 4:00 p.m. prevailing Eastern Time and limited to twenty (20) pages. Objections to confirmation of the Plan are governed by Bankruptcy Rule 9014. Any objection to confirmation must be made in writing and specify in detail the name and address of the objector, all grounds for the objection and amount of the Claim held by the objector. Objections must be filed with the United States Bankruptcy Court, and served by first class mail, overnight delivery, or email so that they are received by the Bankruptcy Court (with a copy to Chambers) and the following parties on or before December, 3, 2015 at 4:00 p.m. prevailing Eastern Time.

1. To the Debtors:

Natalie D. Ramsey and Davis Lee Wright Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109

[email protected] [email protected]

-and- Michael Enright Patrick M. Birney Robinson & Cole LLP 280 Trumbull Street Hartford, CT 06103 [email protected] [email protected]


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2. To the Committee:

Michael P. Richman, Peter S. Partee, Sr., and Robert A. Rich Hunton & Williams LLP 200 Park Avenue New York, NY 10116

[email protected] [email protected] [email protected] 3. To ING Bank:

Daniel J. Guyder and Joseph Badtke-Berkow Allen & Overy LLP 1221 Avenue of the Americas New York, NY 10020

[email protected] [email protected]

-and-

Craig I. Lifland Halloran & Sage LLP 225 Asylum Street

Hartford, CT 06103-4303 [email protected] 4. To the United States Trustee: Holley L. Claiborn Office of the United States Trustee The Giaimo Federal Building 150 Court Street, Room 302 New Haven, CT 06510 III. OVERVIEW OF THE DEBTORS AND THEIR BUSINESSES; DESCRIPTION

OF EVENTS LEADING TO COMMENCEMENT OF THE CASES

A. Background

OWB Holding is a Connecticut corporation and is the direct, one hundred percent Holder of all of the Equity Interests of OWB NA (a Connecticut corporation) and OWB USA (a Texas corporation). OWB Holding does not have any active business operations. OWB Holding, OWB NA, and OWB USA are part of an international family of companies (collectively, the “OW Bunker Companies”) owned directly or indirectly by OW Bunker A/S, an entity organized under the laws of Denmark. Prior to the Petition Date, OWB NA and OWB USA conducted the United States operations of the OW Bunker Companies, providing marine fuel oil (also known as


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“bunkers”) to vessels on the order of various shipping companies and vessel interests, including container, bulk, and tanker ships as well as passenger cruise lines and the off-shore shipping industry.

The OW Bunker Companies, originally founded in 1980 in Aalborg, Denmark, were a part of Ove Wrist, a Danish ship handling company dating back to the 1950s. Following a decade of expansion limited to Scandinavia and Northern Europe, the OW Bunker Companies started Singapore operations in 1992. Beginning in 2007, the OW Bunker Companies entered into a period of rapid expansion, ultimately becoming a leading global marine fuel company with operations in 29 countries and in some of the world’s busiest and most important ports. Globally, the OW Bunker Companies controlled approximately 7% of the marine fuel market.

OWB NA generally operated on the physical distributor side of the OW Bunker Companies, sourcing bunkers from oil companies and refineries, transporting and storing the bunkers, and blending the fuel to the specifications requested by its customers.

OWB USA operated on the reselling side of the OW Bunker Companies, managing the supply within the United States of bunkers for customers, in liaison with other OW Bunker Companies.

Each of the Debtors’ respective boards of directors is currently composed of Hans Staal Jonassen and Adrian Tolson. Hans Staal Jonassen is the sole officer for each of the Debtors.

B. Reasons for Commencing the Chapter 11 Cases

In March 2014, OW Bunker A/S and Altor Fund II launched an initial public offering (“IPO”) of OW Bunker A/S on NASDAQ Copenhagen in one of the largest transactions in Denmark in this decade. The IPO valued OW Bunker A/S at approximately $980 million.

Within six (6) months of the IPO, fraud allegations in the Singapore operation and trading losses at the parent-level wiped out OW Bunker A/S’s equity. On October 23, 2014, OW Bunker A/S indicated that it had recognized “unrealized risk management” losses of $24.5 million due to a “slide in oil price.” Shortly thereafter, on November 5, 2014, those potential trading losses were increased from $24.5 million to $150 million. Additionally, OW Bunker A/S disclosed that it discovered suspected fraudulent activity by senior employees of its Singapore-based subsidiary, Dynamic Oil Trading (Singapore) Pte. Ltd., amounting to an additional $125 million in losses.

In light of these reports, thirteen of OW Bunker A/S’ fifteen banks, who were collectively owed approximately $650 million, refused to extend additional credit. The continued extension of credit was absolutely vital for the OW Bunker Companies because of the nature of the marine fuel supply market. The OW Bunker Companies purchased from suppliers on credit and delivered to customers on credit. The termination of borrowing essentially eliminated the OW Bunker Companies’ ability to operate their businesses.

Trading of OW Bunker A/S’ shares was suspended by NASDAQ Copenhagen on November 5, 2014. On November 6, 2014, OW Bunker A/S announced the commencement of an in-court restructuring of each of O.W. Bunker & Trading A/S and O.W. Supply & Trading


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A/S, two Danish subsidiaries, at the probate court in Aalborg, Denmark. The in-court restructuring failed and the Danish subsidiaries filed for bankruptcy in Aalborg. The probate court entered an order declaring the Danish subsidiaries bankrupt, and appointed legal and financial trustees to wind up the businesses on November 7, 2014.

Following the collapse of the Debtors’ Danish parent, the Debtors were left in a near impossible position. With their vendors and creditors refusing to extend credit, alleging defaults, issuing payment accelerations, and demanding reclamation and cash on delivery demands, the Debtors found themselves with limited options. Accordingly, in an operation of their business judgment, the Debtors commenced the Chapter 11 Cases by filing voluntary petitions in the Bankruptcy Court on the Petition Date.

C. Significant Events Which Occurred During the Chapter 11 Cases

1. Operations. Since the Petition Date, the Debtors have continued in possession and management of their assets as debtors-in-possession under section 1107(a) of the Bankruptcy Code. The Debtors have not engaged in marine fueling operations since before the Petition Date. As discussed in section III.D.2., shortly after the Petition Date, in the midst of plummeting oil prices on world markets, the Debtors announced their intentions to sell certain assets to generate operating revenue.

2. Debtors’ Professionals. The Debtors retained the law firms of Montgomery, McCracken, Walker, & Rhoads, LLP as primary counsel and Robinson & Cole LLP as Connecticut counsel. The Debtors also engaged Alvarez & Marsal North America, LLC as their financial advisor.

3. Formation of the Committee. On November 25, 2014, the U.S. Trustee appointed the Committee pursuant to section 1102(a)(1) of the Bankruptcy Code as the statutory representative of all unsecured creditors in the Chapter 11 Cases. The Committee is comprised of five (5) entities: (a) NuStar Energy Services, Inc.; (b) Phillips 66 Company; (c) Tesoro Refining & Marketing Company, LLC; (d) Chevron Marine Products, LLC; and (e) Lunday-Thagard Company. The Committee engaged Hunton & Williams LLP as its counsel and Gavin/Solmonese LLC as financial advisor. No other official or unofficial committees were formed during these Chapter 11 Cases.

D. Major Matters During the Chapter 11 Bankruptcy Cases

1. “First Day” Relief

In connection with the filing of their Chapter 11 Cases, the Debtors sought various forms of relief. The purpose of this relief was to minimize disruptions caused by the commencement of the bankruptcy cases and establish procedures to ensure that the Chapter 11 Cases run with administrative efficiency. At a hearing to consider their requested first day relief, the Debtors obtained authority: (a) to pay pre-petition taxes, (b) to jointly administer (but not substantively consolidate) the Chapter 11 Cases, (c) to extend the deadline to file their Schedules, (d) to maintain their pre-petition bank accounts, and (e) to establish procedures to address asserted reclamation claims.


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2. Sale of Vopak Inventory

Soon after the Petition Date, the Debtors sought authority from the Bankruptcy Court to establish procedures to market and sell the inventory at a leased facility located in California and for parties to bid to assume the underlying executory contract (the “Vopak Sale”). The marine oil that was included among the Vopak Sale was, at that time, experiencing extreme price volatility and was losing value daily due to significant declines in the fuel markets generally.

By order dated November 24, 2014 (the “Sale Procedure Order”), the Bankruptcy Court approved the procedures to be used in the Vopak Sale including establishing the requirements of and deadline for bids, the procedures to be used in the auction, and the conduct of the auction. That order also established the procedures for assumption and assignment of the executory contract for the storage container where the majority of the marine oil subject to the sale was stored.

The Debtors then marketed the assets subject to the Vopak Sale and an auction was conducted at which time AEGEAN Bunkering (USA) LLC (“Aegean”) was named the winning bidder and a bid submitted jointly by Aegean and Glencore LTD was designated as the backup bid. Following a hearing to approve the proposed sale to Aegean, the Bankruptcy Court entered an order on December 8, 2014 (the “Sale Order”) finding, among other things, that the Debtors conducted the sale process in compliance with the Sale Procedure Order, that the purchase order submitted by Aegean represented the highest and best offer for the assets subject to the Vopak Sale, that the Debtors were authorized to assume and assign the storage unit agreement, and that Aegean provided adequate assurance of future performance of the terms of that storage agreement.

On December 30, 2014, the Debtors and the Committee filed a joint motion to compel certain creditors to comply with the terms of the Sale Order. This dispute was ultimately resolved by stipulated order dated February 9, 2015.

As a result of the Vopak Sale, the Debtors generated $10,577,000 net of cure payments and obtained approval of the assumption and assignment of a significant executory contract which eliminated any administrative or rejection damages.

3. Rejections and Other Dispositions

The Debtors filed a motion seeking approval of procedures to sell certain remaining non-core assets with a sale price of up to $250,000, to abandon obsolete or burdensome assets, and to reject certain real property leases (the “De Minimis Asset Motion”). The De Minimis Asset Motion included, among other things, procedures to be followed in the proposed rejection of a contract or abandonment of property. The De Minimis Asset Motion also included a request to reject various apartment leases and non-residential real property leases because those locations were no longer required due to the Debtors’ efforts to wind up their businesses and operations.


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Section 554(a) of the Bankruptcy Code allows a debtor-in-possession to abandon property that is burdensome to the Estates or is of inconsequential value and benefit to the Estates. Accordingly, to the extent the Debtors had assets which were either no longer beneficial to their operations or for which the costs associated with the sale were excessive in light of their value, the Debtors had authority to abandon those assets.

Section 365 of the Bankruptcy Code authorizes a debtor-in-possession, subject to court approval, to reject executory contracts and unexpired leases. The non-debtor counterparty to a rejected lease or executory contract has the right to file an unsecured claim for damages incurred by reason of the rejection. The amount of the asserted claim is capped by the Bankruptcy Code to various statutory limits based, in part, on the nature of the underlying agreement.

The Bankruptcy Court approved the De Minimis Asset Motion. In connection therewith, the Debtors rejected leases for three corporate apartments and the Houston, Texas office space used by OWB USA, and sold vehicles and office equipment owned by the Debtors. To date, the Debtors have not abandoned any property.

4. Arrests and Interpleaders

The collapse of the OW Bunker Companies created tremendous turmoil and uncertainty among the Debtors’ customers and suppliers. Many suppliers asserted claims against customers and their vessels pursuant to maritime law. These suppliers threatened to arrest customers’ vessels upon arrival in port and to sell the vessels to satisfy their claims against the Debtors. ING Bank, as alleged assignee of certain of the OW Bunker Companies’ receivables, threatened to arrest certain vessels and sent correspondence to customers demanding that amounts due to the Debtors be paid directly to ING Bank. The liquidators of other OW Bunker Companies abroad also demanded payment and threatened to arrest vessels.

In response to competing claims for payment of marine fuel and threats of vessel arrests to enforce maritime liens, certain vessel interests commenced a civil actions in the United States District Court for the Southern District of New York and in other jurisdictions by filing interpleader complaints that named all known competing claimants (including, variously, the Debtors, third-party suppliers, ING Bank, and other OW Bunker Companies) as nominal defendants. The vessel interests posted substitute security for their vessels in the form of bonds, secured letters of undertaking, or cash deposited into court registries, generally in an amount equal to the largest invoice they had received for a particular delivery plus 6% interest for a year going forward.

Vessel interests have also sought to “convert” numerous arrest actions in jurisdictions outside of the Southern District of New York into interpleader actions by filing counterclaims for interpleader or declaratory judgment against suppliers that had commenced arrest actions and other known claimants.

The Debtors and their Professionals have identified and gathered transaction records related to these litigations. With the assistance of their retained Professionals, the Debtors analyzed the underlying transactions within the context of applicable law, performed a cost/benefit analysis for each specific litigation, and developed transaction-specific strategies to


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pursue collections. With respect to certain categories of transactions, for example, the Debtors negotiated the terms of payment with their customers in exchange for a release. With respect to other categories of transactions, the Debtors themselves arrested customers’ vessels because the customer did not engage the Debtors in negotiations or indicate a willingness to pay.

The Debtors have also been monitoring litigation throughout the U.S. and abroad with the dual-purpose of identifying actions that impact the Debtors’ financial interests (and intervening where appropriate) and identifying actions that might set precedents for the Debtors’ collection efforts. All of this work was performed in while the Chapter 11 Cases were pending, which required the Debtors to repeatedly inform the relevant maritime courts of developments in the Chapter 11 Cases, advise how those developments might impact the relevant interpleader/arrest proceedings, and seek to enforce the automatic stay where appropriate or otherwise seek extensions of time. There are approximately 50 pending OW-related interpleader and arrest actions in the U.S. and, based on information and belief, more than 800 actions in more than 15 different jurisdictions around the world related to one or more of the OW Bunker Companies.

As of October 14, 2015, vessel interests had deposited approximately $38.0 million in substitute security in accordance with court orders in the various interpleader and arrest actions in the Southern District of New York alone. Discovery in these actions is ongoing Meanwhile, the Debtors continue to incur costs to protect any rights that they may have to the substitute security deposited with courts in the pending actions. One of the central purposes of the Plan is to establish a coordinated approach to these actions amongst the Debtors, their suppliers, and ING Bank, in order to minimize costs and delay for all of these parties.

The pending interpleader and arrest actions make it difficult to collect on the Debtors’ Supply Receivables. Generally, vessel interests have been successful in securing temporary restraining orders that bar claimants from seeking relief directly against the vessel interests’ vessels during the pendency of the actions. This leaves Physical Suppliers, Intermediary Suppliers, Contract Suppliers, and ING Bank fighting for the substitute security and, with respect to Contract Suppliers and ING Bank, to prevent the interpleader actions or arrest actions being used to discharge vessel interests’ obligations under the relevant O.W. Bunker supply contract.

Pursuant to the agreements and compromises embedded in the Plan, the Debtors and the Liquidating Trusts will not pursue any Claims against customers or their vessels with respect to Supply Receivables that arise from a Debtor acting as a Physical Supplier or an Intermediate Supplier. Instead, the Debtors and the Liquidating Trusts will pursue any Claims against customers and their vessels only in respect of Supply Receivables that arise from a Debtor acting as the Contract Supplier. As a result of the Debtors’ participation in these litigations, additional funds totaling approximately $10 million may come into the Debtors’ Estates in instances where the Debtors successfully prosecute their Claims, however, there is no certainty of recovery.

5. Employee Matters

Maintaining the continued support, cooperation, and morale of the employees was of particular importance to the Debtors to ensure that the orderly windup of the Debtors’ affairs could be conducted smoothly. This was especially critical given the inability/refusal of other entities in the OW Bunker A/S corporate family to provide assistance to the Debtors in terms of


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personnel or even basic record keeping. Accordingly, in connection with papers filed on or shortly after the Petition Date, the Debtors requested and were granted authorization to pay certain pre-petition employee obligations incurred in respect to their employees.

6. Debtors’ Litigation Against ING Bank

Prior to the Petition Date, the Debtors undertook an extensive investigation related to the lending provided pursuant to the Finance Documents. Montgomery, McCracken, Walker & Rhoads, LLP, reviewed voluminous documents provided to them by the Debtors and conducted research in connection with these documents.

As a result of this investigation, the Debtors concluded that facts existed to support allegations that the liens granted to ING Bank constituted possible avoidable preferences and therefore the Debtors commenced the ING Bank Adversary Proceeding by the filing of a complaint against ING Bank on November 25, 2014 (the “Complaint”). ING Bank has disputed these contentions and has requested and received from the Debtors various extensions of time to respond to the allegations contained in the Complaint. As of the date of this Disclosure Statement, no answer or other responsive pleading has been filed to the Complaint. Pursuant to a settlement among the Debtors, the Committee, and ING Bank embodied in the Plan, the ING Adversary will be dismissed by the Bankruptcy Court with prejudice on the Effective Date.

Under this settlement, ING Bank’s asserted Secured Claims, currently estimated at $648,246,240, will be Allowed as General Unsecured Claims against each of OWB NA and OWB USA, except to the extent of the value of certain insurance receivables pledged to ING Bank by OWB NA and OWB USA. The unsecured Claims asserted by ING Bank against each of OWB NA and OWB USA as assignee of intercompany receivables pledged to it pursuant to the Finance Documents will be Allowed as General Unsecured Claims in amounts currently estimated to be $67.8 million and $86 million, respectively, subject to final reconciliation. ING Bank has asserted that a substantial portion of the intercompany Claims it has asserted as assignee are entitled to priority treatment under section 503(b)(9) of the Bankruptcy Code. Pursuant to the settlement with the Debtors embodied in the Plan, ING Bank has agreed to forego any rights it may have under section 503(b)(9) of the Bankruptcy Code. The final amounts of the ING Claims Allowed pursuant to the settlement with ING Bank will be included in the Plan Supplement.

Pursuant to the settlement ING Bank has also agreed to turn over all amounts it has collected as purported assignee of OWB NA’s and OWB USA’s receivables since the Petition Date in the total amount of approximately $7 million, of which approximately $4.25 million is attributable to OWB NA and $2.77 million is attributable to OWB USA. ING Bank will be under an ongoing obligation to remit to the applicable Liquidating Trust any receipts it makes after the Effective Date on account of OWB NA’s and OWB USA’s receivables and must provide an accounting of all such amounts collected.

Additionally, as described above ING Bank has agreed that its Allowed General Unsecured Claims shall be treated less favorably than Allowed General Unsecured Claims of Holders that make the OWB NA Class A Election or the OWB USA Class A Election as applicable. Such Holders are those that (a) are unaffiliated with the OW Bunker Companies, (b)


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assign to the applicable Liquidating Trust any and all of such Holders’ Assigned Rights, (c) return any and all proceeds collected on behalf of the Assigned Rights to the applicable Liquidating Trust, and (d) waive their right to assert that their Claims should be afforded administrative priority status under section 503(b)(9) of the Bankruptcy Code, except as otherwise provided in the Plan.

Finally, ING Bank, the Committee, and the Debtors have agreed to certain releases as part of the Plan.

7. The Confirmation Alternative Settlement

In connection with the settlement embodied in the Plan, OWB USA, the Committee, and ING Bank have agreed to a Confirmation Alternative Settlement, a copy of which is attached as Exhibit D, which provides a basis for progressing the OWB USA Chapter 11 Case in the event OWB USA, the Committee, and ING Bank determine that pursuing confirmation of the Plan as it relates to OWB USA will not be possible on a reasonable time frame and at reasonable cost to the Debtors’ Estates. More specifically, the Confirmation Alternative Settlement is contingent upon, the occurrence of the following condition precedent: (a) the date upon which the Debtors, the Committee, and ING Bank jointly agree that objections to confirmation of the Plan as it relates to OWB USA are not likely to be efficiently and/or successfully addressed through amendments to the Plan or litigation that would lead to confirmation of a revised plan for OWB USA on terms acceptable to each of the Debtors, the Committee, and ING Bank and (b) December 15, 2015 (the earlier of (a) or (b), the “Condition Precedent”). If the Condition Precedent occurs, then the Confirmation Alternative Settlement provides at Paragraph 2:

2. Settlement Contingent on Occurrence of the Condition Precedent. This Agreement reflects a settlement that will not be consummated by the Debtors, the Committee, and ING Bank prior to the occurrence of the Condition Precedent; provided, however, that this Agreement shall not be so consummated and without further action by the Parties, or notice or order of the Bankruptcy Court, shall be void and without force and effect if, prior to the occurrence of the Condition Precedent, the Bankruptcy Court enters an order confirming both of the NA Plan and the USA Plan. Subject to the foregoing proviso, upon occurrence of the Condition Precedent, OWB USA agrees that it will (a) cause the withdrawal of the USA Plan and (b) seek approval, together with the Committee, of this Agreement and the Confirmation Alternative Settlement Motion on a standalone and expedited basis.

The Debtors, the Committee and ING Bank have requested that the Court proceed to consider the Confirmation Alternative Settlement at this time, including scheduling of same for a hearing. During the course of the Disclosure Statement hearing, the Court determined that it would not proceed to consider approval of the Confirmation Alternative Settlement until the Condition Precedent occurs (such that the OWB USA Plan is withdrawn or is not confirmed by December 15, 2015).

Among other things, the Confirmation Alternative Settlement will provide, solely in respect of OWB USA’s Chapter 11 Case, for the allowance of the Claim asserted against OWB USA by ING Bank in respect of OWB USA’s guarantee obligations under the Finance


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Documents in the amount of $648,246,420 (subject to final reconciliation) as an unavoidable secured claim against OWB USA to the extent of the value of all of the collateral pledged to ING Bank by OWB USA under the Finance Documents, including all of OWB USA’s Supply Receivables in connection with bunker supply transactions, and as a general unsecured claim to the extent of any deficiency. The Confirmation Alternative Settlement will also provide for the allowance of the Claim asserted against OWB USA by ING Bank as assignee of certain intercompany receivables in an amount currently estimated at approximately $86 million as an unsecured claim subject to reconciliation. In contradistinction to the treatment provided under the Plan, whereby ING Bank will not receive administrative priority treatment in respect of any claim against OWB USA under section 503(b)(9) of the Bankruptcy Code, under the Confirmation Alternative Settlement ING Bank will remain free to assert its entitlement to any priority under section 503(b)(9) in respect of any of its claims against OWB USA.

In addition to the allowance of ING Bank’s claims as described above, the Confirmation Alternative Settlement will provide that the ING Bank Adversary Proceeding shall be dismissed with prejudice and ING Bank, the Lenders under the Finance Documents and their representatives shall receive a full and complete release, which release will be identical to the release that would have been provided to ING Bank upon the Effective Date of the Plan as such release is described in the Plan.

In exchange for the consideration provided to ING Bank, the Confirmation Alternative Settlement provides that ING shall agree to permit the use of proceeds of its collateral to settle Fee Claims approved by the Bankruptcy Court and up to $2 million of further proceeds to fund the continued prosecution of OWB USA’s Chapter 11 Case (including the prosecution of litigation against creditors claiming priority under section 503(b)(9) of the Bankruptcy Code) and fund Distributions on account of Allowed Administrative Claims that are not Fee Claims. To the extent proceeds of ING Bank’s collateral remain to be distributed after application of the agreed waterfall contained in the Confirmation Alternative Settlement, the Confirmation Alternative Settlement provides that ING Bank will receive Distributions on account of its residual Allowed Secured Claim against OWB USA pari passu with all other Allowed Unsecured non-priority Claims.

The Debtors believe that confirmation of the Plan as to OWB USA provides greater value to Holders of Allowed Unsecured Claims against OWB USA than the Confirmation Alternative Settlement and will only pursue the Confirmation Alternative Settlement in the event the Condition Precedent occurs. However, the Debtors believe that absent confirmation of the Plan in respect of OWB USA, the Confirmation Alternative Settlement represents the only viable path to an orderly and cost-effective resolution of the OWB USA Chapter 11 Case that would result in any meaningful distributions to Holders of Allowed Claims.

8. Motion to Transfer Venue

Following the commencement of the Chapter 11 Cases, the Debtors appeared, intervened or otherwise participated in numerous actions in the Southern District of New York related to funds interpled with that court by vessel owners seeking to avoid the arrest of their vessels by the Debtors, suppliers of marine fuel, or others. Due to the importance of these cases, jurisdictional issues, convenience, and other considerations, the Debtors and the Committee jointly moved to


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transfer the Chapter 11 Cases to the Bankruptcy Court for the Southern District of New York (the “Venue Transfer Motion”). NuStar opposed the Venue Transfer Motion, which led to protracted litigation with the Debtors and the Committee. Confirmation of the Plan would result in a consensual resolution of these Chapter 11 Cases, which the Debtors and the Committee believe is far more advantageous and beneficial to the Estates and parties-in-interest than the benefits that would have been provided by transferring venue. Accordingly, the Debtors have moved to withdraw the Venue Transfer Motion.

9. Disputes with NuStar

NuStar is one of the larger creditors in these Chapter 11 Cases. The Debtors and the Committee have been and continue to be adverse to NuStar in several contested and adversary matters, including (a) Case No. 14-05060, in which NuStar Supply, as Plaintiff, sought reclamation of certain fuel oil on the Vessels Eva Schulte and Elisalex Schulte (the “Reclamation Adversary Proceeding”) and (b) objections filed by NuStar to certain motions filed by the Debtors seeking to establish reclamation procedures and procedures for resolving third party lien claims involving customer vessels (the “Reclamation Objections”). Stipulated orders have been entered into related to Debtors’ disputes with NuStar, including (a) Stipulated Order Resolving: (I) the Objection of NuStar Supply & Trading LLC to (A) Motion for Entry of an Order Under §§105 and 362: (i) Directing Customer Payments into a Segregated Debtor in Possession Account Pending Outcome of Adversary Proceeding to Avoid Lien and (ii) Authorizing and Establishing Procedures for Resolution of Third Party Liens Against Customer Vessels and (B) Motion Establishing and Implementing Exclusive and Global Procedures for Treatment of Reclamation Claims and (II) Emergency Motion of NuStar Supply & Trading LLC for Adequate Protection; Alternatively, for Relief from the Automatic Stay to Exercise Reclamation Rights (Case No. 14-51720 Dkt No. 167) (the “Reclamation Stipulation”); (b) a Stipulation and Order Facilitating Implementation of the O'Rourke and NuStar Reclamation Orders (Dkt Nos. 155 and 167) as to Reclamation of Oil on the Vessels Eva and Elisalex Schulte at Dkt No. 186 (the “Facilitating Stipulation”); (c) Stipulated Order Staying Adversary Proceeding, Except for Limited Proceedings Regarding Accounting for Reclaimed Oil, and Continuing Hearing on Money Received From Arresting Vessels (Adv. Proc. No. 14-5060, Dkt No. 16) (the “Continuing Stipulation”), and (d) Stipulated Order Staying Adversary Proceeding and Continuing Hearing on Money Received From Arresting Vessels (Adv. Proc. No. 14-5060, Dkt No. 18) (the “Second Continuing Stipulation”). The Debtors, the Committee, and NuStar entered into an agreement (the “NuStar Settlement Agreement”) to compromise and settle many of the parties’ disputes related to (a) the Transfer Motion, (b) the Reclamation Adversary Proceeding, (c) the Reclamation Objections, (d) the Reclamation Stipulation, (e) the Facilitating Stipulation, and (f) the Continuing Stipulation. On March 19, 2015, the Debtors moved for approval of a stipulation embodying the terms of that agreement (the “NuStar Settlement Motion”). ING Bank objected to the NuStar Settlement Motion, and as a result the parties continued the hearing on that motion so that the Debtors, the Committee, and ING Bank could discuss alternatives with a focus on developing the framework for a global resolution of the Chapter 11 Cases. The Plan represents that global resolution, and all of the primary constituencies in these


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Chapter 11 Cases other than NuStar have expressed their support for the Plan, including the Debtors, ING Bank, and the Committee which represents all unsecured creditors in these Chapter 11 Cases. Negotiations to have NuStar join the global resolution have lasted several months, involving many meetings, mediation sessions, and telephone conferences. Those negotiations are continuing, but no final agreement has been reached.

10. Activities Related to Claims

(a) Schedules and Statements. On December 19, 2015, the Debtors filed their respective Schedules of Assets and Liabilities and Statements of Financial Affairs (collectively, the “Schedules”) with the Bankruptcy Court. Certain of those Schedules were subsequently amended on January 8, 2015.

(b) Bar Date for All Claims. A creditor must file a proof of claim with the Bankruptcy Court on the official form provided to known creditors for that purpose unless the creditor agrees with the claim as listed in the Schedules. Shortly after the Petition Date, the Bankruptcy Court set March 16, 2015 as the deadline by which all Holders of Claims against the Debtors were to file Proofs of Claim with the Bankruptcy Court. As of the date of this Disclosure Statement, sixty-one (61) Claims had been filed against one or more of the Debtors of which fifty-one (51) were filed on or before the Bar Date. The Debtors and their Professionals have begun to review and analyze the filed claims.

(c) Claim Objections. The Debtors have filed and will continue to file objections to the Claims asserted in these Chapter 11 Cases. Such objections may be objections to individual Claims or omnibus objections to Claims and will be filed in the near future, the effect of which would be to prohibit certain holders of filed claims from voting absent the Bankruptcy Court’s temporary allowance of such Claims for voting purposes only.

Certain Physical Suppliers have asserted claims seeking treatment pursuant to section 503(b)(9) of the Bankruptcy Code (the “Supplier Section 503(b)(9) Claims”) against OWB NA and OWB USA relating to the alleged marine bunker transactions. The Debtors objected to these Supplier Section 503(b)(9) Claims.

OWB USA objected predominantly on the ground that OWB USA never took physical possession of the marine fuel bunkers as required by 11 U.S.C. § 503(b)(9) and, therefore, the claimants were “drop-shippers” and not entitled to administrative expense priority for their claims. The Debtors believe that no such claims should be allowed as priority claims. The total of such asserted claims against OWB USA is approximately $32 million, of which (i) approximately $17 million comprise ING Bank Assignee claims (that become Class 3 non-priority Claims upon confirmation), (ii) approximately $10 million were subject to unresolved objections as of October 22, 2015 (including $9 million in Claims by NuStar) and (iii). the remainder were resolved through the claims process, including agreements (or agreements in principle) to reclassify certain asserted claims subject to objection by the Debtors, as non-priority general unsecured claims.


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OWB NA objected on the basis that all of the Physical Suppliers in its case exercised their rights to reclaim their marine fuel bunkers, that reclamation is a Physical Suppliers’ exclusive remedy, and that an administrative priority should be allowed, if at all, only for that portion of the marine fuel delivered to a customer’s vessel and not reclaimed by a physical supplier. The total of such claims asserted against OWB NA is approximately $11.6 million; if the Debtors’ objections are sustained the total would be approximately $5.2 million. Based on settlements and litigation positions being taken by such claimants, the total of such claims may be as high as approximately $7 million (as some of such claims are still unresolved).

With respect to OWB USA’s liquidation plan, the occurrence of the plan’s Effective Date may be jeopardized if the Supplier Section 503(b)(9) Claims asserted against OWB USA are allowed by Final Order and in a significant amount. The Debtors believe that the law cited by the Debtors supports classification of the asserted Supplier Section 503(b)(9) Claims as General Unsecured Claims, however, allowance of the Supplier Section 503(b)(9) Claims in any significant amount may adversely affect the Debtors’ ability to consummate an OWB USA plan. Notwithstanding the ongoing reconciliation process, the actual ultimate aggregate amount of Claims that are Allowed may differ significantly from the estimates set forth herein. Accordingly, the percentage distribution that will ultimate be received by any particular Holder of an Allowed Claim may be adversely affected by the outcome of the Claims resolution process.

(d) Reclamation Activities. In January 2015, Phillips 66 Company and Mieco, Inc. reclaimed inventory held on the barge CHABRIA SEA as of the Petition Date pursuant to an order of the Bankruptcy Court [Dkt No. 305]. The value of the reclaimed oil, which has yet to be agreed upon, will reduce Phillips 66 Company’s and Mieco Inc.’s asserted claims against the Debtors to the extent they are Allowed. Both suppliers contend that their claims concerning their respective portion of the reclaimed inventory are entitled to administrative priority pursuant to 11 U.S.C. § 503(b)(9). The Debtors dispute some or all of these contentions and may dispute portions of these claims.

On December 3, 2014, NuStar also secured an order preserving its reclamation rights in inventory held on the vessel EVA SCHULTE [Dkt No. 112] after NuStar filed the Reclamation Adversary Proceeding.

Numerous other suppliers have asserted reclamation rights but have not brought adversary proceedings to enforce those rights.

(e) Claims Estimates. The Debtors, with the assistance of their Professionals, have begun to review and analyze the Claims asserted in these cases. As a result of these efforts, the Debtors have, among other things, (i) identified Claims or categories of Claims for future resolution and (ii) identified existing or potential Claim disputes.

Through these claims reconciliation activities, the Debtors have developed estimates of Allowed Claims in each Class established under the Plan. The Debtors have prepared these estimates based primarily on the following: (a) projections based on anticipated future Claim reconciliations and Claim objections; (b) the comparison of asserted Claims against the Debtors’ books and records; (c) the Debtors’ experience in reconciling Claims prior to and following the


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Petition Date; (d) the historic experience of the Debtors’ Professionals in other chapter 11 cases; (e) an analysis of the litigation risks associated with Disputed Claims; and (f) other legal and factual analyses unique to particular types of Claims. Certain of the Debtors’ estimates are reflected in the Debtors’ objections to certain 503(b)(9) Claims that have been filed with the Bankruptcy Court.

Notwithstanding the Debtors’ substantial efforts in developing its Claim estimates, the preparation of such estimates is inherently uncertain, and accordingly there is no assurance that such estimates will accurately predict the actual amount of Allowed Claims in these cases. As a result, the actual amount of Allowed Claims may differ significantly from the Debtors’ claims estimates contained herein.

11. Motion to Convert. On October 5, 2015, NuStar filed a motion to convert the Debtors’ Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code (the “Motion to Convert”). If approved, the Debtors’ no longer will remain “in possession” of their Estates, a trustee will be appointed and engage its own set of professionals to marshal the Debtors’ assets and distribute the proceeds to creditors in the priority established by the Bankruptcy Code, and the Plan as well as all of the settlements embodied therein will be rendered moot. The Debtors intend to oppose the Motion to Convert but if disputes continue and the Effective Date does not occur before December 31, 2015, then the Debtors believe that conversion of the Chapter 11 Cases may be likely.

IV. THE LIQUIDATION PLANS

THE FOLLOWING SUMMARY PROVIDES ONLY A GENERAL OVERVIEW OF THE PLAN, WHICH IS QUALIFIED IN ITS ENTIRETY BY THE PLAN ANNEXED HERETO AS EXHIBIT A. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE PROVISIONS OF THE PLAN AND THE SUMMARY CONTAINED HEREIN, THE TERMS OF THE PLAN SHALL GOVERN.

The primary objectives of the Plan are to: (a) effectuate the settlements among the

Debtors, the Committee, and ING Bank which the Debtors believe are fair and reasonable and in the best interests of the Estates and creditors; and (b) maximize the value of recoveries on the Debtors’ remaining assets and receivables for all creditor groups on a fair and equitable basis. The Plan provides for, among other things: (i) the compromise and settlement of certain Claims and the exchange of mutual releases; and (ii) the formation of Liquidating Trusts that will take assignment of all Liquidating Trust Assets and appointment of Liquidating Trustees to undertake efforts to maximize the value of those assets for the benefit of the Debtors’ creditors.

After careful review of the estimated recoveries in a liquidation scenario under chapter 11 and liquidation scenario under chapter 7, the Debtors concluded that the recovery to creditors will be maximized by formation of the Liquidating Trusts and assignment of the Liquidating Trust Assets. The Debtors believe that the Estates have value that would not be fully realized by creditors in a chapter 7 liquidation primarily due to: (a) the difficulties that a chapter 7 trustee would encounter in resolving disputed, contingent, and unliquidated claims; (b) the additional administrative expenses that would be incurred in a chapter 7 liquidation; (c) the difficulties that


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will likely be encountered by a chapter 7 trustee attempting to liquidate the Debtors’ rights to amounts due from Supply Receivables; and (d) the delay in distributions that would occur if the Debtors’ chapter 11 Cases were converted to cases under chapter 7. Accordingly, the Estates of each of the OWB NA and OWB USA, respectively, are worth more to their creditors if the Plan is made effective and Distributions are made pursuant to the Plan. The Plan is annexed hereto as Exhibit A and forms part of this Disclosure Statement.

The statements contained in this Disclosure Statement include summaries of the provisions contained in the Plan and in documents referred to therein. The statements contained in this Disclosure Statement do not purport to be precise or complete statements of all the terms and provisions of the Plan or documents referred to therein, and are qualified in their entirety by reference to the more detailed provisions of the Plan.

The Plan itself and the documents referred to therein control the actual treatment of Claims against and Equity Interests in the Debtors under the Plan and will, upon the Effective Date, be binding upon all Holders of Claims against and Equity Interests in the Debtors and their Estates and other parties in interests. In the event of any conflict between this Disclosure Statement, on the one hand, and the Plan, the Liquidating Trust Agreements, or any other operative document, on the other hand, the terms of the Plan, the Liquidating Trust Agreements, and such other operative document are controlling.

A. Overall Structure of the Plan

The Plan provides for the formation of two Liquidating Trusts—the OWB NA Liquidating Trust and the OWB USA Liquidating Trust. Each of the Liquidating Trusts will be managed by a Liquidating Trustee and funded by the contribution of the respective Liquidating Trust Assets. The Plan provides that certain Claims will be Allowed and that all Litigation Claims will be included among the Liquidating Trust Assets. The Liquidating Trust Assets will include, without limitation (a) the Estate Assets of OWB NA (with respect to the OWB NA Liquidating Trust) and the Estate Assets of OWB USA (with respect to the OWB USA Liquidating Trust), (b) Assigned Rights from certain Holders of General Unsecured Claims that make OWB NA Class A Election or OWB USA Class A Election, as applicable, and (c) certain consideration provided by ING Bank, which includes (i) delivery of the ING Bank Receipts and the Subsequent Receipts to the respective Liquidating Trusts; (ii) transfer of the ING Bank Security Interests to the respective Liquidating Trusts; and (iii) and the proceeds of each.

Holders of Equity Interests in OWB NA and OWB USA will not receive or maintain any property under the Plan. Because its only property is its Equity Interests in OWB NA and OWB USA, as to OWB Holding only, the Plan constitutes a motion by which it requests the Bankruptcy Court dissolve or grant OWB Holding the authority to dissolve on the Effective Date pursuant to applicable state law.

After execution of the Liquidating Trust Agreements, which shall, with the Plan, govern the administration of the Liquidating Trusts, the Liquidating Trustees will begin to work to maximize the value of the respective Liquidating Trust Assets for the benefit of Holders of Allowed Claims.


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The Debtors believe that the Plan provides the best and most prompt route to meaningful recoveries by holders of Allowed Claims. Under the Plan, Claims against and Equity Interests in the Debtors are divided into different classes. If the Plan is confirmed by the Bankruptcy Court, on the Effective Date, and at certain times thereafter as Claims are resolved, liquidated, or otherwise Allowed, the Liquidating Trustees will make Distributions in respect of certain Claims as provided in the Plan. The Classes of Claims against and Equity Interests in the Debtors created under the Plan, the treatment of those Classes under the Plan, and distributions to be made under the Plan are described below.

B. Unclassified Claims

In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, Priority Tax Claims, and Fee Claims, as described below, have not been classified and thus are excluded from the Classes of Claims and Equity Interests

1. Administrative Claims as to All Debtors (Other Than Fee Claims).

Each Holder of an Allowed Administrative Claim (other than an Administrative Claim that is a Fee Claim) shall receive from the applicable Debtor against which such Administrative Claim is Allowed (if prior to or on the Effective Date) or the applicable Liquidating Trust (if after the Effective Date) (a) Cash in an amount equal to the amount of such Allowed Administrative Claim as soon as practicable after the later of (i) the Effective Date if such Administrative Claim is Allowed as of the Effective Date, (ii) thirty (30) days after the date such Administrative Claim becomes an Allowed Administrative Claim if such Administrative Claim is Disputed as of or following the Effective Date, or (iii) the date such Allowed Administrative Claim becomes due and payable by its terms, or as soon thereafter as is practicable; or (b) such other treatment as the applicable Debtor or the applicable Liquidating Trust and such Holder shall have agreed upon in writing; provided, however, that Allowed Administrative Claims (other than Fee Claims) that arise in the ordinary course of the relevant Debtors’ business shall be paid in the ordinary course of business in accordance with the terms and subject to the conditions of any agreements governing, instruments evidencing, or other documents relating to such transactions. Administrative Claims (other than an Administrative Claim that is a Fee Claim) that become Allowed after the Effective Date shall be paid by the applicable Liquidating Trust prior to payment on account of any other Claim or Liquidating Trust Interest. For the avoidance of doubt, none of the ING Bank Claims will be treated as Administrative Claims. Allowed Claims under 11 U.S.C. § 503(b)(9), if any, will be Administrative Claims

UNDER THE PLAN, THE ADMINISTRATIVE EXPENSE BAR DATE IS THE DATE THAT IS THE FIRST BUSINESS DAY THIRTY (30) CALENDAR DAYS AFTER THE EFFECTIVE DATE OF THE PLAN. ALL REQUESTS FOR PAYMENT OF ADMINISTRATIVE CLAIMS ARISING ON OR BEFORE THE EFFECTIVE DATE, TO THE EXTENT INCURRED AFTER THE PETITION DATE AND NOT PAID IN THE ORDINARY COURSE OF BUSINESS, MUST BE FILED WITH THE BANKRUPTCY COURT AND SERVED ON THE LIQUIDATION TRUSTEE ON OR BEFORE THE ADMINISTRATIVE EXPENSE BAR DATE OR BE FOREVER BARRED.


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2. Fee Claims.

All requests for compensation or reimbursement of Fee Claims shall be filed and served on the Debtors and their counsel, the Liquidating Trusts and their counsel, the U.S. Trustee, counsel to each of ING Bank and the Committee, and such other entities who are designated by the Bankruptcy Rules, the Confirmation Order, or other order of the Bankruptcy Court, no later than forty-five (45) days after the Effective Date. Holders of Fee Claims that are required to file and serve applications for final allowance of their Fee Claims and that do not file and serve such applications by the required deadline shall be forever barred from asserting such Claims against the Debtors, the Liquidating Trusts, or their respective properties, and such Fee Claims shall be deemed discharged as of the Effective Date. Objections to any Fee Claims must be filed and served on the Debtors and their counsel, the Liquidating Trusts and their counsel, the U.S. Trustee, counsel to each of ING Bank and the Committee, the requesting party, and such other entities who are designated by the Bankruptcy Rules, the Confirmation Order, or other order of the Bankruptcy Court, no later than thirty (30) days after the filing of the final applications for compensation or reimbursement (unless otherwise agreed by the party requesting payment of a Fee Claim).

Each Holder of an Allowed Fee Claim shall receive from the applicable Debtor (if prior to or on the Effective Date) or the applicable Liquidating Trust (if after the Effective Date) (a) Cash in the amount of the Fee Claim awarded by the Bankruptcy Court as soon as practicable after entry of an order approving the Fee Claim; or (b) such other treatment as the applicable Debtor or the Liquidating Trust and such Holder shall have agreed upon in writing.

3. Priority Tax Claims.

Each Holder of an Allowed Priority Tax Claim due and payable on or before the Effective Date shall receive from the applicable Debtor (if prior to or on the Effective Date) or the applicable Liquidating Trust (if after the Effective Date), at the sole option of such Debtor or Liquidating Trust, as applicable, in full satisfaction, settlement, release, and discharge, of and in exchange for such Priority Tax Claim one of the following treatments: (a) payment in full in Cash as soon as practicable after the Effective Date in an amount equal to the amount of such Allowed Priority Tax Claim, plus statutory interest on any outstanding balance from the Effective Date, calculated at the prevailing rate under applicable nonbankruptcy law for each taxing authority and to the extent provided for by section 511 of the Bankruptcy Code; (b) payment in full in Cash in equal installments made each Quarter in accordance with section 1129(a)(9)(C) of the Bankruptcy Code, over a period not to exceed five (5) years following the Petition Date, plus statutory interest on any outstanding balance from the Effective Date, calculated at the prevailing rate under applicable nonbankruptcy law for each taxing authority and to the extent provided for by section 511 of the Bankruptcy Code, and in a manner not less favorable than the most favored General Unsecured Claim provided for by the Plan; or (c) such other treatment as may be agreed upon by such Holder and the applicable Debtor or applicable Liquidating Trust, or otherwise determined upon a Final Order of the Bankruptcy Court.


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4. U.S. Trustee Fees.

Notwithstanding anything to the contrary contained in the Plan, on the Effective Date and prior to the transfer of any Estate Assets to the Liquidating Trusts, the Debtors shall pay, in full, in Cash, any fees due and owing to the U.S. Trustee as of the Effective Date. On and after the Effective Date, each Liquidating Trust shall be responsible for filing required post-confirmation reports and paying quarterly fees due to the U.S. Trustee until the entry of a final decree in such Debtor’s Chapter 11 Case or until such Chapter 11 Case is converted or dismissed.

C. Classification and Treatment of Claims and Equity Interests

The categories of Claims and Equity Interests listed below classify Claims and Equity Interests that are required to be designated in Classes pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code. Classification of Claims and Equity Interests in the Plan is for all purposes, including voting, confirmation and distribution pursuant to the Plan. A Claim or an Equity Interest shall be deemed classified in a particular Class only to the extent that the Claim or Equity Interest qualifies within the description of that Class and shall be deemed classified in a different Class only to the extent that any remainder of such a Claim or an Equity Interest qualifies within the description of such different Class. A Claim or Equity Interest is placed in a particular Class only to the extent that such a Claim or an Interest is Allowed in that Class and has not been paid, released or otherwise settled prior to the Effective Date. Notwithstanding any distribution provided for in the Plan, no distribution on account of any Claim is required or permitted unless and until such a Claim becomes an Allowed Claim, as the case may be, if at all, until after the Effective Date. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims (including Fee Claims) and Priority Tax Claims of the kinds specified in sections 507(a)(2) and 507(a)(8) of the Bankruptcy Code have not been classified, and their treatment is set forth in Article II of the Plan.

There are no Classes for OWB Holding because OWB Holding has no assets apart from its Equity Interests in OWB NA and OWB USA, which Equity Interests are cancelled pursuant to the Plan. The Liquidating Trustees shall be authorized to dissolve OWB Holding as of the Effective Date as set forth in Article VI.1 of the Plan.

The Plan designates twelve Classes of Claims, and two Class of Equity Interests in the Debtors and leaves certain Claims unclassified. The following sections describe more fully the classification and treatment of Claims and Interests under the Plan.

1. Class 1 – Non-Tax Priority Claims Against OWB USA.

(a) Classification: Class 1 consists of Allowed Non-Tax Priority Claims against OWB USA.


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(b) Treatment: The legal, equitable, and contractual rights of Holders of Allowed Non-Tax Priority Claims against OWB USA are unaltered by the Plan. In full and complete satisfaction, settlement and release of, and exchange for each Allowed Non-Tax Priority Claim against OWB USA, each Holder of an Allowed Non-Tax Priority Claims against OWB USA shall receive one of the following treatments, at the sole election of OWB USA: (i) to the extent then due and owing on the Effective Date, such Allowed Non-Tax Priority Claim against OWB USA shall be paid in full, in Cash on the Effective Date; (ii) to the extent not due and owing on the Effective Date, such an Allowed Non-Tax Priority Claim against OWB USA shall be paid in full, in Cash, by the OWB USA Liquidating Trust when and as such Allowed Non-Tax Priority Claim against OWB USA becomes due and owing in the ordinary course of business in accordance with the terms thereof; or (iii) such other less favorable treatment as is agreed upon by OWB USA or the OWB USA Liquidating Trust, as applicable, and the Holder of such Allowed Non-Tax Priority Claim against OWB USA.

(c) Voting: Class 1 is Unimpaired, and each Holder of a Class 1 Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 1 Claims are not entitled to vote to accept or reject the Plan.

2. Class 2 – Secured Claims Against OWB USA

(a) Classification: Class 2 consists of Allowed Secured Claims against OWB USA. Other than ING Bank’s Claims to the Pledged Insurance Receivables (which Pledged Insurance Receivables the Debtors do not believe are of any significant value to the Debtors) the Debtors do not believe that there are any Claims in this Class. ING Bank will retain its security interest in the Pledged Insurance Receivables.

(b) Treatment: The legal, equitable and contractual rights of Holders of Allowed Secured Claims against OWB USA are unaltered by the Plan. In full and complete satisfaction, settlement and release of, and exchange for each Allowed Secured Claim against OWB USA, each Holder of an Allowed Secured Claim against OWB USA shall receive, on the Effective Date or as soon thereafter as reasonably practicable, one of the following treatments, at the sole election of OWB USA: (i) Cash in the amount of such Allowed Secured Claim against OWB USA; (ii) turnover of the Estate Assets that constitute Collateral for such Allowed Secured Claims against OWB USA, solely to the extent that such Estate Assets are not Cash and the Holder of such Allowed Secured Claim against OWB USA has a valid, perfected, enforceable, and unavoidable first-priority Lien on such Estate Assets; or (iii) such other, less favorable treatment as is agreed upon by OWB USA or the OWB USA Liquidating Trust, as applicable, and the Holder of such Allowed Secured Claim against OWB USA.

(c) Voting: Class 2 is Unimpaired, and each Holder of a Class 2 Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 2 Claims are not entitled to vote to accept or reject the Plan.


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3. Class 3 – OWB USA Affiliated Unsecured Claims.

(a) Classification: Class 3 consists of Allowed OWB USA Affiliated Unsecured Claims. This class is primarily composed of the ING Bank Direct Claims and the ING Bank Assignee Claims (which are Claims based upon the assignment of Foreign Affiliate Claims to ING Bank). Absent confirmation of the plan, the Debtors estimate that approximately $17 million of the ING Bank Assignee Claims may be entitled to priority status under 11 U.S.C. § 503(b)(9) and would therefore be Administrative Claims.

(b) Treatment: Holders of Allowed OWB USA Affiliated Unsecured Claims each shall receive on the Effective Date (i) an OWB USA Class B Trust Interest and (ii) an OWB USA Class C Trust Interest.

(c) Voting: Class 3 is Impaired. Each Holder of an Allowed Claim in Class 3 is entitled to vote to accept or reject the Plan.

4. Class 4 - OWB USA Unaffiliated Trade Claims.

(a) Classification: Class 4 consists of Allowed OWB USA Unaffiliated Trade Claims. Allowed Class 4 Claims of Electing OWB USA Claimants are classified as Class 4(a) Claims. Allowed Class 4 Claims of Non-Electing OWB USA Claimants are classified as Class 4(b) Claims. This class is primarily composed of the Claims of trade creditors that are not Foreign Affiliates of the Debtors, including NuStar’s Claims to the extent they are not priority claims under § 503(b)(9) but are otherwise Allowed as General Unsecured Claims.

(b) Treatment: Holders of Allowed Class 4(a) Claims shall receive on the Effective Date (i) an OWB USA Class A Trust Interest and (ii) an OWB USA Class C Trust Interest. Holders of Allowed Class 4(b) Claims shall receive on the Effective Date (x) an OWB USA Class B Trust Interest and (y) an OWB USA Class C Trust Interest.


5. Class 5 – Subordinated Claims Against OWB USA.

(a) Classification: Class 5 consists of Subordinated Claims against OWB USA. The Debtors do not believe that there are any claims in this Class at this time.

(b) Treatment: Holders of Subordinated Claims against OWB USA shall receive no property or Distributions under the Plan on account of such Claims in accordance with the effect of section 510 of the Bankruptcy Code.

(c) Voting: Class 5 is Impaired. Each Holder of an Subordinated Claim against OWB USA is conclusively presumed to have rejected the Plan under section 1126(g) of the Bankruptcy Code and, therefore, is not entitled to vote to accept or reject the Plan.


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6. Class 6 – Equity Interests in OWB USA.

(a) Classification: Class 6 consists of Equity Interests in OWB USA.

(b) Treatment: On the Effective Date, Equity Interests in OWB USA shall be cancelled and discharged and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and Holders of Equity Interests against OWB USA shall not receive or retain any property under the Plan on account of such Equity Interests.

(c) Voting: Class 6 is Impaired. Each Holder of a Class 6 Equity Interest against OWB USA is conclusively presumed to have rejected the Plan under section 1126(g) of the Bankruptcy Code and, therefore, is not entitled to vote to accept or reject the Plan.

7. Class 7 – Non-Tax Priority Claims Against OWB NA.

(a) Classification: Class 7 consists of Allowed Non-Tax Priority Claims against OWB NA.

(b) Treatment: The legal, equitable, and contractual rights of Holders of Allowed Non-Tax Priority Claims against OWB NA are unaltered by the Plan. In full and complete satisfaction, settlement and release of, and exchange for each Allowed Non-Tax Priority Claim against OWB NA, each Holder of an Allowed Non-Tax Priority Claim against OWB NA shall receive one of the following treatments, at the sole election of OWB NA: (i) to the extent then due and owing on the Effective Date, such Allowed Non-Tax Priority Claim against OWB NA shall be paid in full, in Cash on the Effective Date; (ii) to the extent not due and owing on the Effective Date, such an Allowed Non-Tax Priority Claim against OWB NA shall be paid in full, in Cash, by the OWB NA Liquidating Trust when and as such Allowed Non-Tax Priority Claim against OWB NA becomes due and owing in the ordinary course of business in accordance with the terms thereof; or (iii) such other less favorable treatment as is agreed upon by OWB NA or the OWB NA Liquidating Trust, as applicable, and the Holder of such Allowed Non-Tax Priority Claim against OWB NA.

(c) Voting: Class 7 is Unimpaired by the Plan, and each Holder of a Class 7 Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 7 Claims are not entitled to vote to accept or reject the Plan.

8. Class 8 – Secured Claims Against OWB NA

(a) Classification: Class 8 consists of Allowed Secured Claims against OWB NA. This Class is primarily composed of ING Bank’s Claims to the Pledged Insurance Receivables (which Pledged Insurance Receivables the Debtors do not believe are of any significant value to the Debtors) and the Claims for which funds were segregated (and liens, if any, transferred to such segregated funds) in connection with the sale of OWB NA Assets, primarily the Vopak Oil. See the Sale Order referenced above. ING Bank will retain its security interest in the Pledged Insurance Receivables, and the Debtors believe that all of the Claims relating to the Vopak Oil will be resolved by the Effective Date.


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(b) Treatment: The legal, equitable and contractual rights of Holders of Allowed Secured Claims against OWB NA are unaltered by the Plan. In full and complete satisfaction, settlement, and release of, and in exchange for each Allowed Secured Claim against OWB NA, each Holder of an Allowed Secured Claim against OWB NA shall receive, on the Effective Date or as soon thereafter as reasonably practicable, one of the following treatments, at the sole election of OWB NA: (i) Cash in the amount of such Allowed Secured Claim against OWB NA; (ii) turnover of the Estate Assets that constitute Collateral for such Allowed Secured Claim against OWB NA, solely to the extent that such Estate Assets are not Cash, and the Holder of such Allowed Secured Claim against OWB NA has a valid, perfected, enforceable, and unavoidable first-priority Lien on such Estate Assets; or (iii) such other, less favorable treatment as is agreed upon by OWB NA or the OWB NA Liquidating Trust, as applicable, and the Holder of such Allowed Secured Claim against OWB NA.

(c) Voting: Class 8 is Unimpaired by the Plan, and each Holder of a Class 8 Claim is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 8 Claims are not entitled to vote to accept or reject the Plan.

9. Class 9 – OWB NA Affiliated Unsecured Claims.

(a) Classification: Class 9 consists of Allowed OWB NA Affiliated Unsecured Claims This class is primarily composed of the ING Bank Direct Claims and the ING Bank Assignee Claims (which are Claims based upon the assignment of Foreign Affiliate Claims to ING Bank).

(b) Treatment: Holders of Allowed OWB NA Affiliated Unsecured Claims shall receive on the Effective Date (i) an OWB NA Class B Trust Interest and (ii) an OWB NA Class C Trust Interest.

(c) Voting: Class 9 is Impaired. Each Holder of an Allowed General Unsecured Claim in Class 9 is entitled to vote to accept or reject the Plan.

10. Class 10 - OWB NA Unaffiliated Trade Claims.

(a) Classification: Class 10 consists of Allowed OWB NA Unaffiliated Trade Claims. Allowed Class 10 Claims of Electing OWB NA Claimants are classified as Class 10(a) Claims. Allowed Class 10 Claims of Non-Electing OWB NA Claimants are classified as Class 10(b) Claims. This class is primarily composed of the Claims of trade creditors that are not Foreign Affiliates of the Debtors, including NuStar’s Claims to the extent they are not priority claims under § 503(b)(9) but are otherwise Allowed as General Unsecured Claims.

(b) Treatment: Holders of Allowed Class 10(a) Claims shall receive on the Effective Date (i) an OWB NA Class A Trust Interest and (ii) an OWB NA Class C Trust Interest. Holders of Allowed Class 10(b) Claims shall receive on the Effective Date (x) an OWB NA Class B Trust Interest and (y) an OWB NA Class C Trust Interest.


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11. Class 11 – Subordinated Claims Against OWB NA.

(a) Classification: Class 11 consists of Subordinated Claims against OWB NA. The Debtors do not believe that there are any claims in this Class at this time.

(b) Treatment: Holders of Subordinated Claims against OWB NA shall receive no property or Distributions under the Plan on account of such Claims in accordance with the effect of section 510 of the Bankruptcy Code.

(c) Voting: Class 11 is Impaired. Each Holder of a Subordinated Claim against OWB NA is conclusively presumed to have rejected the Plan under section 1126(g) of the Bankruptcy Code and, therefore, is not entitled to vote to accept or reject the Plan.

12. Class 12 - Equity Interests in OWB NA.

(a) Classification: Class 12 consists of Equity Interests in OWB NA.

(b) Treatment: On the Effective Date, Equity Interests in OWB NA shall be cancelled and discharged and shall be of no further force and effect, whether surrendered for cancellation or otherwise and Holders of Equity Interests against OWB NA shall not receive or retain any property under the Plan on account of such Equity Interests.

(c) Voting: Class 12 is Impaired. Each Holder of a Class 12 Equity Interest against OWB NA is conclusively presumed to have rejected the Plan under section 1126(g) of the Bankruptcy Code and, therefore, is not entitled to vote to accept or reject the Plan.

D. Special Provision Regarding Unimpaired and Reinstated Claims.

Except as otherwise specifically provided in the Plan, nothing herein shall be deemed to affect, diminish, or impair a Debtor’s or a Liquidating Trust’s rights and defenses, both legal and equitable, with respect to any Reinstated Claim or Unimpaired Claim, including, but not limited to, legal and equitable defenses to setoffs or recoupment against Reinstated Claims or Unimpaired Claims; and, except as otherwise specifically provided in the Plan, nothing herein shall be deemed to be a waiver or relinquishment of any Litigation Claim, right of setoff, or other legal or equitable defense that a Debtor had immediately prior to the Petition Date, against or with respect to any Unimpaired Claim. Except as otherwise specifically provided in the Plan, each Liquidating Trust shall have, retain, reserve, and be entitled to assert all Litigation Claims, rights of setoff, and other legal or equitable defenses that a Debtor had immediately prior to the Petition Date fully as if the Chapter 11 Cases had not been commenced, and all of a Liquidating Trust’s legal and equitable rights with respect to any Reinstated Claim or Unimpaired Claim may be asserted after the Confirmation Date and the Effective Date to the same extent as if the Chapter 11 Cases had not been commenced.


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E. Means for Implementation of the Plan

1. Cancellation of Liens. Except as otherwise provided in the Plan, on the Effective Date, any Lien securing any Secured Claim shall be deemed released, and the Person holding such Secured Claim shall be authorized and directed to release any Collateral or other property of the Debtor (including any cash collateral) held by such Person and to take such actions as may be requested by the applicable Liquidating Trust to evidence the release of such Lien, including the execution, delivery, and filing or recording of such releases as may be requested by the applicable Liquidating Trust.

2. Post-Effective Date Fees and Expenses. From and after the Effective Date, each Liquidating Trustee and the professionals retained by the Liquidating Trusts will be paid in the ordinary course of business and without the necessity for any approval by the Bankruptcy Court.

3. Corporate Actions. On the Effective Date, all actions contemplated by the Plan shall be deemed authorized and approved in all respects (subject to the provisions of the Plan), including, without limitation, the following: (a) cancellation of all Equity Interests; and (b) the execution and the delivery of, and the performance under, the Liquidating Trust Agreements. All matters provided for under the Plan involving the corporate structure of each Debtor and any corporate action required by a Debtor in connection with the Plan shall be deemed to have occurred and shall be in effect pursuant to the Bankruptcy Code, without any requirement of further action by the stockholders or the directors of the Debtor. On the Effective Date, the appropriate officers of the Debtors are authorized and directed to execute and to deliver the Liquidating Trust Agreements, and related documents and agreements and any other agreements, documents and instruments contemplated by the Plan, and related documents and agreements in the name and on behalf of the Debtors.

4. Transfer of the ING Bank Security Interests. On the Effective Date, the ING Bank Security Interests shall be fully and finally transferred to the Liquidating Trusts.

5. Sources of Cash for Plan Distributions. Except as otherwise provided in the Plan or the Confirmation Order, Distributions shall be payable solely from Cash (if any) from the ING Bank Receipts and the Subsequent Receipts, Cash in the Debtors’ Estates, and Cash generated (if any) from the liquidation of the Liquidating Trust Assets, provided, however, the Plan incorporates an agreement between ING Bank and the Debtors as to the following:

(a) Each Liquidating Trust shall instruct customers to pay the invoices issued to them by the relevant Debtor or Foreign Affiliate Contract Supplier, provided that no Liquidating Trust shall be required to make such instruction in respect of transactions where the Person that acted as Contract Supplier is not providing a similar instruction, having been requested to do so, to customers in respect of other transactions in which one of the Debtors acted as the Contract Supplier.

(b) ING Bank and the Global Receivers shall not, on behalf of themselves or any Foreign Affiliate, assert claims under the Maritime Lien Act (or any similar U.S. or foreign law) in respect of transactions in which OWB NA or OWB USA was the


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Contract Supplier, and will instruct customers in transactions in which OWB NA or OWB USA was the Contract Supplier to pay the Contract Supplier. Funds received by each of OWB NA or OWB USA pursuant to this provision will be transferred to the respective Liquidating Trust with funds received by OWB NA transferred to the OWB NA Liquidating Trust and funds received by OWB USA transferred to the OWB USA Liquidating Trust.

(c) Neither Liquidating Trust shall assert any Assigned Rights without the prior written consent of ING Bank, which consent shall not be withheld, in respect of the assertion of such Assigned Rights in transactions where the Contract Supplier (i) is not a Debtor or Foreign Affiliate, or (ii) is a Foreign Affiliate that is actively contesting the right of the relevant Debtor and/or the OWB USA Liquidating Trust or the OWB NA Liquidating Trust, as applicable, to collect in full in any other transaction in which that Debtor acted as the Contract Supplier.

(d) The OWB NA Liquidating Trust shall not assert, without the prior written consent of ING Bank, any rights the OWB NA Liquidating Trust holds as assignee of rights under the Maritime Lien Act (or any similar U.S. or foreign law) previously held by OWB NA in respect of transactions in which OWB NA acted as the Physical Supplier or an Intermediary Supplier. In such transactions, the OWB NA Liquidating Trust shall instruct customers to pay the invoices issued to them by the relevant Contract Supplier (including Contract Suppliers who are Foreign Affiliates) in accordance with the terms of the underlying invoices. ING Bank’s consent to the assertion of such claims in a given transaction shall not be withheld where the Contract Supplier in such transaction (i) is not a Debtor or Foreign Affiliate, or (ii) is a Foreign Affiliate that is actively contesting the right of OWB NA or the OWB NA Liquidating Trust to collect in full in any other transaction in which OWB NA acted as the Contract Supplier. For the avoidance of doubt, the OWB NA Liquidating Trust shall continue to prosecute, as needed, all rights under the Maritime Lien Act (or any similar U.S. or foreign law) in respect of transactions in which OWB NA acted as Contract Supplier.

(e) The OWB USA Liquidating Trust shall not assert, without the prior written consent of ING Bank, rights the OWB USA Liquidating Trust holds as assignee of rights under the Maritime Lien Act (or any similar U.S. or foreign law) previously held by OWB USA in respect of transactions in which OWB USA acted as an Intermediary Supplier or the Physical Supplier. In such transactions, the OWB USA Liquidating Trust shall instruct customers to pay the invoices issued to them by the relevant Contract Supplier (including Contract Suppliers who are Foreign Affiliates) in accordance with the terms of the underlying invoices. ING Bank’s consent to the assertion of such claims in a given transaction shall not be withheld where the Contract Supplier in such transaction (i) is not a Debtor or a Foreign Affiliate or (ii) is a Foreign Affiliate that is actively contesting the right of OWB USA or the OWB USA Liquidating Trust to collect in full in any other transaction in which OWB USA acted as the Contract Supplier. For the avoidance of doubt, the OWB Liquidating Trust shall continue to prosecute, as needed, rights under the Maritime Lien Act (or any other similar U.S. or foreign law) in respect of transactions in which OWB USA acted as Contract Supplier.

(f) In any litigation involving a transaction in which OWB USA or OWB NA acted as the Contract Supplier, neither ING Bank nor the Global Receivers will take,


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or cause another party to take any action adverse to the litigation position of the relevant Liquidating Trust in such litigation.

6. ING Section 503(b)(9) Claims. No ING Bank Claims shall be entitled to treatment as an Administrative Claim under section 503(b)(9) of the Bankruptcy Code or otherwise.

7. Cooperation Between the Debtors and ING Bank. The Plan incorporates an agreement between the Debtors and ING Bank to cooperate including:

(a) The Debtors and ING Bank covenant and agree to cooperate to expedite and maximize collection of amounts due to the Debtors. In connection therewith, any amounts collected by ING Bank as a direct or indirect result of a joint direction directing payment of all amounts due to the Debtors as detailed in Article V.4 of the Plan will be transferred into accounts held by ING Bank with all funds collected by ING Bank to be transferred as soon as practicable following such receipt into accounts maintained by the relevant Liquidating Trust in the U.S. ING Bank agrees to provide a monthly accounting of such receipts to the relevant Liquidating Trust.

(b) The joint direction described in sub-paragraph (a) above was sent to the vessel owners listed on Exhibit C hereto in October 2015, which represent approximately $15 million in receivables owed to OWB NA and approximately $6 million in receivables owed to OWB USA, which do not implicate transactions that involved third-party non-Debtor suppliers. Since the agreement between the Debtors and ING described in that sub-paragraph resolves the dispute over which entity the vessel owners should pay their receivables on outstanding invoices, the Debtors believe that a substantial amount of such receivables will be collected prior to the Effective Date. The Debtors and ING have identified approximately $10.4 million in additional OWB USA receivables, and approximately $300,000 in additional OWB NA receivables, that are not implicated by pending arrest or interpleader actions and that will be subject to joint directions for payment issued by OWB USA/OWB NA and ING. However, because these remaining receivables may involve unpaid third-party suppliers the precise timeline for collection is not clear at this point.

(c) Upon the Effective Date, or as soon as practicable thereafter, ING Bank shall transfer to the relevant Liquidating Trust all ING Bank Receipts after (i) deduction of administrative fees (including Professionals’ fees) and expenses paid for the period May 1, 2015, through the earlier of the Effective Date or November 12, 2015, as applicable, or such other date as agreed in writing by the Debtors, ING Bank, and the Committee, in each of their absolute discretion and (ii) all ING Bank Receipts transferred prior to the Effective Date to accounts maintained and controlled by a Debtor. As of August 12, 2015, ING Bank was holding approximately $7 million in ING Bank Receipts. Cash collected from accounts receivable invoiced by OWB NA will be deposited in the OWB NA Liquidating Trust and Cash collected from accounts receivable invoiced by OWB USA will be deposited in the OWB USA Liquidating Trust.

(d) On or after the Effective Date ING Bank shall transfer any Subsequent Receipt to the applicable Liquidating Trust within ten (10) Business Days of ING


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Bank’s receipt of such Subsequent Receipt and ING Bank shall provide the relevant Liquidating Trusts with a monthly accounting of all Subsequent Receipts.

(e) The ING Bank Adversary Proceeding shall be deemed dismissed with prejudice on the Effective Date. The Confirmation Order shall provide that the Liquidating Trust is authorized and directed to take all necessary steps on and after the Effective Date to document such dismissal, including by filing any necessary motions or notices with the Bankruptcy Court.

8. Approval of the ING Settlement. The Plan and the Disclosure Statement shall constitute a motion to approve the ING Settlement pursuant to Bankruptcy Rule 9019. The ING Settlement shall be deemed to be approved and effective contemporaneously with entry of the Confirmation Order and occurrence of the Effective Date, respectively.

9. Intermediary Supplier Transactions. In any pending or future litigation under the Maritime Lien Act, the maritime law of the U.S. or foreign jurisdiction, or other applicable law in which a Debtor is an Intermediary Supplier, upon the Effective Date of the Plan: (a) the Liquidating Trust shall abandon all interest in any Claim the Liquidating Trust may have against an end-customer and/or its vessel from a Debtor’s role as an Intermediary Supplier; and (b) the automatic stay and the injunction provisions contained in the Plan shall remain in place and shall be effective.

F. Corporate Governance

1. Corporate Existence. After the Effective Date, the OWB NA Liquidating Trust may decide (a) to maintain OWB NA as a corporation in good standing until such time as all aspects of the Plan pertaining to OWB NA have been completed, or (b) at such time as it considers appropriate and consistent with the implementation of the Plan pertaining to OWB NA, to dissolve OWB NA subject to the filing of a certificate of dissolution with the appropriate governmental authorities.

After the Effective Date, the OWB USA Liquidating Trust may decide (a) to maintain OWB USA as a corporation in good standing until such time as all aspects of the Plan pertaining to OWB USA have been completed, or (b) at such time as it considers appropriate and consistent with the implementation of the Plan pertaining to OWB USA, to dissolve OWB USA subject to the filing of a certificate of dissolution with the appropriate governmental authorities.

The Confirmation Order shall include a determination by the Bankruptcy Court that as of the Effective Date, OWB Holding will be deemed dissolved for all purposes without the necessity for any other or further actions to be taken by or on behalf of the Liquidating Trusts or any other Person unless directed by the Bankruptcy Court. The Liquidating Trusts shall cause the Confirmation Order to be filed with Secretary of State of Connecticut or such other relevant Governmental Unit as evidence of the dissolution and file a notice of such filing with the Bankruptcy Court.


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2. Certificate of Incorporation and By-Laws. As of the Effective Date, the certificate of incorporation and by-laws of each Debtor shall be deemed amended to the extent necessary to carry out the provisions of the Plan.

G. The Liquidating Trusts

1. Identity of the Liquidating Trustees. The identity of the Liquidating Trustees, which shall be agreed between the Debtors, the Committee, and ING Bank shall be disclosed in the Plan Supplement.

2. Execution of the OWB NA Liquidating Trust Agreement. On the Effective Date, the OWB NA Liquidating Trustee shall execute the OWB NA Liquidating Trust Agreement. The OWB NA Liquidating Trustee shall also take all other necessary steps to establish the OWB NA Liquidating Trust and the OWB NA Liquidating Trust Interests provided for therein, which shall be for the benefit of the OWB NA Liquidating Trust Beneficiaries. In the event of any conflict between the terms of this Article VII and the terms of the OWB NA Liquidating Trust Agreement relating to the establishment of the OWB NA Liquidating Trust, the terms of this Article VII shall govern. The OWB NA Liquidating Trust Agreement shall be in substantially the form attached as an Exhibit to the Plan Supplement. The OWB NA Liquidating Trust Agreement will provide powers, duties, and authorities in addition to those explicitly stated in the Plan, but only to the extent that such powers, duties, and authorities do not affect the status of the OWB NA Liquidating Trust as a “liquidating trust” for U.S. federal income tax purposes.

3. Execution of the OWB USA Liquidating Trust Agreement. On the Effective Date, the OWB USA Liquidating Trustee shall execute the OWB USA Liquidating Trust Agreement. The OWB USA Liquidating Trustee shall also take all other necessary steps to establish the OWB USA Liquidating Trust and the OWB USA Liquidating Trust Interests provided for therein, which shall be for the benefit of the OWB USA Liquidating Trust Beneficiaries. In the event of any conflict between the terms of this Article VII and the terms of the OWB USA Liquidating Trust Agreement relating to the establishment of the OWB USA Liquidating Trust, the terms of this Article VII shall govern. The OWB USA Liquidating Trust Agreement shall be in substantially the form attached as an Exhibit to the Plan Supplement. The OWB USA Liquidating Trust Agreement will provide powers, duties, and authorities in addition to those explicitly stated in the Plan, but only to the extent that such powers, duties, and authorities do not affect the status of the OWB USA Liquidating Trust as a “liquidating trust” for U.S. federal income tax purposes.

4. Purpose of the Liquidating Trusts. The Liquidating Trusts shall be established for the sole purpose of liquidating and distributing the OWB NA Liquidating Trust Assets and the OWB USA Liquidating Trust Assets, as applicable, in accordance with Treasury Regulation § 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business.

5. Liquidating Trust Assets.

(a) After the creation of the OWB NA Liquidating Trust pursuant to this Article VII, OWB NA shall transfer all of the OWB NA Liquidating Trust Assets, including


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any Litigation Claims, to the OWB NA Liquidating Trust. Such transfer shall be exempt from any stamp, real estate transfer, mortgage reporting, sales, use or other similar tax pursuant to section 1146(a) of the Bankruptcy Code.

(b) After the creation of the OWB USA Liquidating Trust pursuant to this Article VII, OWB USA shall transfer all of the OWB USA Liquidating Trust Assets, including any Litigation Claims, to the OWB USA Liquidating Trust. Such transfer shall be exempt from any stamp, real estate transfer, mortgage reporting, sales, use, or other similar tax pursuant to section 1146(a) of the Bankruptcy Code.

6. Administration of the Liquidating Trusts. Each Liquidating Trust shall be administered by the Liquidating Trustee of such Liquidating Trust pursuant to the respective Liquidating Trust Agreement and the Plan. In the event of an inconsistency between the Plan and a Liquidating Trust Agreement as such conflict relates to anything other than the establishment of a Liquidating Trust, the Liquidating Trust Agreement shall control.

7. General Authority of the Liquidating Trustees. The Liquidating Trustees shall have, subject to the terms of the Liquidating Trust Agreements, the authority to act on behalf of their respective Liquidating Trusts and actions taken by the Liquidating Trusts (including actions contemplated by the Plan) shall be actions taken by and through their respective Liquidating Trustees.

8. Liquidating Trusts’ Tax Power.

(a) The OWB NA Liquidating Trust shall have the same authority in respect of all taxes of OWB NA, and to the same extent, as if the OWB NA Liquidating Trust was OWB NA.

(b) The OWB USA Liquidating Trust shall have the same authority in respect of all taxes of OWB USA, and to the same extent, as if the OWB USA Liquidating Trust was OWB USA.

9. Cash Investments. The Liquidating Trusts may invest Cash (including any earnings thereon or proceeds therefrom); provided, however, that such investments are investments permitted to be made by a “liquidating trust” within the meaning of U.S. Treasury Regulation § 301.7701-4(d), as reflected therein, or under applicable Internal Revenue Service guidelines, rulings, or other controlling authorities.

10. Distributions.

(a) The OWB NA Liquidating Trust is required to distribute to the Holders of Allowed Claims against OWB NA Cash (including any Cash received from OWB NA and treating any permissible investment as Cash for purposes of this Article VII), less Retained Proceeds and such other amounts as may be reasonably necessary to (a) meet contingent liabilities and to maintain the value of the OWB NA Liquidating Trust Assets during liquidation, (b) pay reasonably incurred or anticipated expenses (including, without limitation, any taxes imposed on or payable by OWB NA or the OWB NA Liquidating Trust or in respect of the OWB NA Liquidating Trust Assets), or (c) satisfy other liabilities incurred or anticipated by


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the OWB NA Liquidating Trust in accordance with the Plan or the OWB NA Liquidating Trust Agreement; provided, however, that the OWB NA Liquidating Trust shall not be required to make a Distribution pursuant to this section of the Plan if the OWB NA Liquidating Trust determines that the expense associated with making the Distribution would likely utilize a substantial portion of the amount to be distributed.

(b) The OWB USA Liquidating Trust is required to distribute to the Holders of Allowed Claims against OWB USA on account of their OWB USA Liquidating Trust Interests, Cash (including any Cash received from OWB USA and treating any permissible investment as Cash for purposes of this Article VII), less such amounts that may be reasonably necessary to (a) meet contingent liabilities and to maintain the value of the OWB USA Liquidating Trust Assets during liquidation, (b) pay reasonably incurred or anticipated expenses (including, without limitation, any taxes imposed on or payable by OWB USA or the OWB USA Liquidating Trust or in respect of the OWB USA Liquidating Trust Assets), or (c) satisfy other liabilities incurred or anticipated by the OWB USA Liquidating Trust in accordance with the Plan or the OWB USA Liquidating Trust Agreement; provided, however, that the OWB USA Liquidating Trust shall not be required to make a Distribution pursuant to this section of the Plan if the OWB USA Liquidating Trust determines that the expense associated with making the Distribution would likely utilize a substantial portion of the amount to be distributed.

(c) Distributions from the OWB NA Liquidating Trust, after payment of OWB NA Liquidating Trust Expenses and all Allowed Administrative Claims and Allowed Priority Claims against OWB NA, shall be made as follows:

(i) first to Holders of OWB NA Class A Trust Interests up to the amounts specified therein and in accordance with the terms of such OWB NA Class A Trust Interests;

(ii) second to Holders of OWB NA Class B Trust Interests up to the amounts specified therein and in accordance with the terms of such OWB NA Class B Trust Interests; and

(iii) third to Holders of OWB NA Class C Trust Interests up to the amounts specified therein and in accordance with the terms of such OWB NA Class C Trust Interests.

(d) Distributions from the OWB USA Liquidating Trust, after payment of OWB USA Liquidating Trust Expenses and all Allowed Administrative Claims and Allowed Priority Claims against OWB USA, shall be made as follows:

(i) first to Holders of OWB USA Class A Trust Interests up to the amounts specified therein and in accordance with the terms of such OWB USA Class A Trust Interests;

(ii) second to Holders of OWB USA Class B Trust Interests up to the amounts specified therein and in accordance with the terms of such OWB USA Class B Trust Interests; and


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(iii) third to Holders of OWB USA Class C Trust Interests up to the amounts specified therein and in accordance with the terms of such OWB USA Class C Trust Interests.

11. Federal Income Tax Treatment of Each Liquidating Trust. For all U.S. federal income tax purposes, all parties shall treat the transfer of Liquidating Trust Assets to the respective Liquidating Trust as: (a) a transfer of Liquidating Trust Assets (subject to any obligations relating to those assets) directly to Liquidating Trust Beneficiaries (other than to the extent Liquidating Trust Assets are allocable to Disputed Claims), followed by (b) the transfer by such beneficiaries to the Liquidating Trust of Liquidating Trust Assets in exchange for the Liquidating Trust Interests. Accordingly, Liquidating Trust Beneficiaries shall be treated for U.S. federal income tax purposes as the grantors and owners of their respective share of the Liquidating Trust Assets (other than such Liquidating Trust Assets as are allocable to Disputed Claims). The foregoing treatment shall also apply, to the extent permitted by applicable law, for state and local income tax purposes.

12. Tax Reporting.

(a) Each Liquidating Trust shall file tax returns for the respective Liquidating Trust treating such Liquidating Trust as a grantor trust pursuant to U.S. Treasury Regulation § 1.671-4(a) and in accordance with Article VII.12(a).

(b) Allocations of Liquidating Trust taxable income among Liquidating Trust Beneficiaries (other than taxable income allocable to any assets allocable to, or retained on account of, Disputed Claims) shall be determined by reference to the manner in which an amount of Cash representing such taxable income would be distributed (were such Cash permitted to be distributed at such time) if, immediately prior to such deemed Distribution, the Liquidating Trust had distributed all its assets (valued at their tax book value, other than assets allocable to, or retained on account of, Disputed Claims) to the Holders of Liquidating Trust Interests, adjusted for prior taxable income and loss and taking into account all prior and concurrent Distributions from the Liquidating Trust. Similarly, taxable loss of each such Liquidating Trust shall be allocated by reference to the manner in which an economic loss would be borne immediately after a hypothetical liquidating Distribution of the remaining Liquidating Trust Assets. The tax book value of Liquidating Trust Assets for the purpose of this paragraph shall equal their fair market value on the date Liquidating Trust Assets are transferred to the Liquidating Trust, adjusted in accordance with tax accounting principles prescribed by the IRC, the applicable U.S. Treasury Regulations, and other applicable administrative and judicial authorities and pronouncements.

(c) As soon as reasonably practicable after the Liquidating Trust Assets are transferred to each such Liquidating Trust, the Liquidating Trust shall make a good faith valuation of the Liquidating Trust Assets.

(d) Subject to definitive guidance from the Internal Revenue Service or a court of competent jurisdiction to the contrary (including the receipt by a Liquidating Trust of a private letter ruling if such Liquidating Trust so requests one, or the receipt of an adverse determination by the IRS upon audit if not contested by such Liquidating Trust), each


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Liquidating Trust (i) may timely elect to treat any Liquidating Trust Assets allocable to Disputed Claims as a “disputed ownership fund” governed by U.S. Treasury Regulation § 1.468B-9, and (ii) to the extent permitted by applicable law, shall report consistently for state and local income tax purposes. If a “disputed ownership fund” election is made, all parties (including the Liquidating Trust, the Debtors, and Liquidating Trust Beneficiaries) shall report for U.S. federal, state and local income tax purposes consistently with the foregoing.

(e) Each Liquidating Trust shall be responsible for payment, out of the respective Liquidating Trust Assets, of any taxes imposed on each such Liquidating Trust or its assets.

(f) Each Liquidating Trust may request an expedited determination of taxes of the Liquidating Trust, including any reserve for Disputed Claims, under section 505(b) of the Bankruptcy Code for all tax returns filed for, or on behalf of, such Liquidating Trust for all taxable periods through the dissolution of such Liquidating Trust.

13. Enforcement of Assigned Rights. The assignment of Assigned Rights by Electing OWB NA Claimants and Electing OWB USA Claimants to the applicable Liquidating Trust as set forth in the Plan shall not be conditioned upon the execution, filing, or recordation of any termination statements, releases, assignment agreements, or any other documentation. Nevertheless, the OWB NA Liquidating Trustee and the OWB USA Liquidating Trustee, as applicable, shall be authorized to execute, file, or record any such documentation, and take such other and further actions, on behalf of and in the name of the Electing OWB NA Claimants and Electing OWB USA Claimants, as applicable, as are necessary to effectuate the assignment of the Assigned Rights to the applicable Liquidating Trust.

14. Dissolution.

(a) Each Liquidating Trustee and its respective Liquidating Trust shall be discharged or dissolved, as the case may be, at such time as (i) all of the Liquidating Trust Assets have been distributed pursuant to the Plan and such Liquidating Trust Agreement, (ii) a Liquidating Trust determines, in its sole discretion, that the administration of any remaining Liquidating Trust Assets in its Liquidating Trust is not likely to yield sufficient additional Liquidating Trust proceeds to justify further pursuit, or (iii) all Distributions required to be made by a Liquidating Trust under the Plan and a Liquidating Trust Agreement have been made; provided, however, that in no event shall a Liquidating Trust be dissolved later than three (3) years from the creation of such Liquidating Trust unless the Bankruptcy Court, upon motion within the six-month period prior to the third (3rd) anniversary (or within the six-month period prior to the end of an extension period), determines that a fixed-period extension (not to exceed five (5) years, together with any prior extensions, without a favorable private letter ruling from the Internal Revenue Service or an opinion of counsel satisfactory to the Liquidating Trust that any further extension would not adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes) is necessary to facilitate or complete the recovery and liquidation of the Liquidating Trust Assets.

(b) If at any time a Liquidating Trust determines, in reliance upon such professionals as such Liquidating Trust may retain, that the expense of administering the


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Liquidating Trust so as to make a final Distribution to Liquidating Trust Beneficiaries is likely to exceed the value of the assets remaining in the Liquidating Trust, such Liquidating Trust may apply to the Bankruptcy Court for authority to (i) reserve any amount necessary to dissolve the Liquidating Trust, (ii) donate any balance to a charitable organization (A) described in section 501(c)(3) of the IRC, (B) exempt from U.S. federal income tax under section 501(a) of the IRC, (C) not a “private foundation,” as defined in section 509(a) of the IRC, and (D) that is unrelated to the Debtors, such Liquidating Trust, the Liquidating Trustee and any insider of the Liquidating Trust, and (iii) dissolve such Liquidating Trust.

H. Confirmation of the Plan

1. Conditions to Confirmation

The following are conditions to the entry of the Confirmation Order unless such conditions, or any of them, have been satisfied or duly waived in accordance with Article VIII.B:

(a) The Bankruptcy Court shall have approved the Disclosure Statement in form and substance acceptable to the Debtors, the Committee, and ING Bank.

(b) The Confirmation Order shall be in form and substance acceptable to the Debtors, the Committee, and ING Bank.

(c) The Plan (which, for purposes of this Article VIII.A., shall include the Plan Supplement), shall be in form and substance acceptable to the Debtors, the Committee, and ING Bank.

2. Discharge of the Debtors

Pursuant to section 1141(d)(3) of the Bankruptcy Code, confirmation of the Plan shall not discharge any of the Claims against the Debtors; provided, however, that no Holder of a Claim may on account of such Claim seek to receive any payment or other treatment from, or seek recourse against the applicable Debtor or Liquidating Trust or their respective property, except as expressly provided in the Plan.

3. Exculpation

Except as otherwise provided in the Plan or the Confirmation Order, as of the Effective Date, for good and valuable consideration, the adequacy of which is hereby confirmed, including without limitation the service of the Exculpated Parties in facilitating the expeditious liquidation or dissolution of the Debtors and the implementation of the transactions contemplated by the Plan, none of the Exculpated Parties shall have or incur any liability to any Holder of a Claim or Equity Interest or any other Person for any act or omission arising out of or in connection with the Debtors’ liquidation or dissolution, or the Chapter 11 Cases, on or before the Effective Date, regardless of whether such act or omission occurred or failed to occur, respectively, before or after the Petition Date, including without limitation the commencement of the Chapter 11 Cases, the negotiation and execution of the Disclosure Statement, the negotiation, execution and performance of the Plan, the solicitation of votes for and the pursuit of the Confirmation Order, the


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Effective Date, the consummation of the Plan, or the administration of the Plan or the Distributions to be made under the Plan; provided, however, that the foregoing provisions of this Section IV.H.3. shall have no effect on the liability of the Exculpated Parties for gross negligence, willful misconduct, fraud or criminal conduct as determined by a Final Order. The Exculpated Parties shall be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under and in connection with the Plan.

4. Release

(a) Releases by Debtors. As of the Effective Date, for good and valuable consideration, the adequacy of which is hereby confirmed, including without limitation the service of the Released Parties in facilitating the expeditious liquidation or dissolution of the Debtors and the implementation of the transactions contemplated by the Plan, each of the Debtors, and any Person seeking to exercise the rights of a Debtor’s Estate, including without limitation the Liquidating Trusts, the Liquidating Trustees acting on behalf of the Liquidating Trusts, or other successors to the Debtors or any Estate representative appointed or selected pursuant to section 1123(b)(3) of the Bankruptcy Code, hereby irrevocably, absolutely and permanently releases, waives, and discharges all the Released Parties and their respective property from any and all Claims or Causes of Action that the Debtors would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the Holder of any Claim or Equity Interest or other Person, based in whole or in part upon any act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date arising out of or in any way related to the Debtors, the Chapter 11 Cases, or the Plan, including, for the avoidance of doubt, all such Claims or Causes of Action that the Debtors or the Estates have or may have related to the allegations asserted by the Debtors in the ING Bank Adversary Proceeding (including any Claims or Causes of Action arising under sections 547 and 548 of the Bankruptcy Code and applicable state fraudulent conveyance law); provided, however, that there shall be no such release on account of Claims or liabilities in respect of any contractual obligation owed by such Person to a Debtor under the Plan or in any contracts, instruments, or agreements delivered under the Plan; and provided, further, that the foregoing provisions of this Section IV.H.4.a. shall have no effect on the liability of any of the Released Parties for gross negligence, willful misconduct, fraud, or criminal conduct as determined by a Final Order.

(b) Releases by Releasing Non-Debtor Parties. As of the Effective Date, in exchange for their rights and distributions hereunder, each of the Releasing Non-Debtor Parties (regardless of whether a Releasing Non-Debtor Party is a Released Party) shall be deemed to have released, waived, and discharged, irrevocably, absolutely, and permanently, each of the Released Parties and their respective property from any and all Claims or Causes of Action based in whole or in part upon any act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date arising out of or in any way related to the Debtors, the Chapter 11 Cases, or the Plan; provided, however, that the foregoing provisions of this Section IV.H.5. shall have no effect on (a) the liability of the Released Parties for gross negligence, willful misconduct, fraud, or criminal conduct as determined by a Final Order or (b) any Cause of Action brought derivatively by a Liquidating Trust and in respect of which Cause of Action a Liquidating


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Trust has standing (pursuant to the Plan) to pursue except to the extent such Cause of Action is released pursuant to the Plan; provided, further, that the foregoing provisions of this Section IV.H.4.b. shall not operate to waive or release any Claims or Causes of Action held by a Releasing Non-Debtor Party with respect to Professionals’ final fee applications or Fee Claims in the Chapter 11 Cases.

(c) Releases by ING Parties. As of the Effective Date, in exchange for their rights and distributions hereunder, each of the ING Releasing Parties shall be deemed to have released, waived, and discharged, irrevocably, absolutely, and permanently, each of the ING Released Parties and their respective property from any and all Claims or Causes of Action based in whole or in part upon any act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date arising out of or in any way related to the Debtors, the Chapter 11 Cases, or the Plan; provided, however, that the foregoing provisions of this Section IV.H.4.c. shall have no effect on (a) the liability of the ING Released Parties for gross negligence, willful misconduct, fraud, or criminal conduct as determined by a Final Order or (b) any Cause of Action brought derivatively by a Liquidating Trust and in respect of which Cause of Action a Liquidating Trust has standing (pursuant to the Plan) to pursue except to the extent such Cause of Action is released pursuant to the Plan; provided, further, that the foregoing provisions of this Section IV.H.4.c. shall not operate to waive or release the rights of the ING Releasing Parties to object to Professionals’ fee applications (and Fee Claims asserted thereunder) filed with the Bankruptcy Court after August 20, 2015.

5. Injunction

In addition to the injunction provided under sections 524(a) and 1141 of the Bankruptcy Code, the Confirmation Order shall permanently enjoin the commencement or prosecution by any Person, directly, derivatively or otherwise, of any Claims, Causes of Action or liabilities released or exculpated pursuant to the Plan, including without limitation the Claims and Causes of Action released in Sections IV.H.4. hereof; provided, however, that parties may obtain copies of the purchase order, bunker delivery receipt, and/or invoice in matters in which a Debtor was an Intermediary Supplier from the applicable Liquidating Trustee without seeking leave from the Bankruptcy Court.

6. Preservation of Litigation Claims

In accordance with section 1123(b) of the Bankruptcy Code, and except as expressly provided in the Plan, all Litigation Claims shall be vested with the applicable Liquidating Trust. Nothing contained in the Plan or the Confirmation Order shall be deemed a waiver or relinquishment of any Litigation Claim, right of setoff, or other legal or equitable defense of the Debtors that is not specifically waived or relinquished by the Plan. Each Liquidating Trust, as applicable, shall have, retain, reserve, and be entitled to assert all claims, Litigation Claims, rights of setoff, and other legal or equitable defenses that the Debtors had immediately before the Petition Date as fully as if the Chapter 11 Cases had not been commenced, and all legal and equitable rights respecting any claim that is not specifically waived or relinquished by the Plan may be asserted after the Effective Date to the same extent as if the Chapter 11 Cases had not been commenced. No Person may rely on the absence of a specific reference in the Plan or the


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Disclosure Statement to any Litigation Claim against them as any indication that a Liquidating Trust, as applicable, will not pursue any and all available Litigation Claims against such Person. The Liquidating Trusts, as applicable, each expressly reserve all rights to prosecute any and all Litigation Claims against any Person in accordance with the Plan. From and after the Effective Date, the Liquidating Trusts shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any Litigation Claim and to decline to do any of the foregoing without further notice to, or action, order, or approval of, the Bankruptcy Court. The Liquidating Trusts are deemed to be representatives of the Estates for the purpose of prosecuting any Litigation Claim and any objections to Claims pursuant to 11 U.S.C. § 1123(b)(3)(B).

7. Cancellation of Certain Indebtedness and Existing Securities

On the Effective Date, except as otherwise specifically provided for in the Plan: (a) the obligations of the Debtors under any certificate, share, note, bond, indenture, purchase right, option, warrant, or other instrument or document directly or indirectly evidencing or creating any indebtedness or obligation of or ownership interest in a Debtor giving rise to any Claim or Equity Interest (except such certificates, notes, or other instruments or documents evidencing indebtedness or obligations of a Debtor that are specifically Reinstated pursuant to the Plan), shall be cancelled as to such Debtor; and (b) the obligations of a Debtor pursuant, relating, or pertaining to any agreements, indentures, certificates of designation, bylaws, or certificates or articles of incorporation or similar documents governing the shares, certificates, notes, bonds, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of such Debtor (except such agreements, certificates, notes, or other instruments evidencing indebtedness or obligations of a Debtor that are specifically Reinstated pursuant to the Plan or assumed by a Debtor) shall be released and discharged.

8. Preservation of Insurance

Except as necessary to be consistent with the Plan, nothing in the Plan shall diminish or impair the enforceability of any insurance policy that may provide coverage for Claims against the Debtors, their current and former directors and officers, or any other Person.


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I. Provisions Governing Distributions

1. Distributions for Claims Allowed as of the Effective Date. Except as otherwise provided in the Plan or as ordered by the Bankruptcy Court, Distributions to be made on account of Claims that are Allowed Claims as of the Effective Date shall be made by the applicable Liquidating Trust on the Effective Date. Any payment or Distribution required to be made under the Plan on a day other than a Business Day shall be made on the next succeeding Business Day. Notwithstanding any other provision of the Plan to the contrary, no Distribution shall be made on account of any Allowed Claim or portion thereof that has been satisfied after the Petition Date pursuant to a Final Order. A Liquidating Trust, in its discretion, may request an accounting from the Holder of an Allowed Claim regarding the extent to which such Claim has been satisfied from any source other than the applicable Debtor or the applicable Liquidating Trust, and the Liquidating Trust may hold Distributions to the Holder of such Claim (after making an appropriate reserve) pending resolution of any dispute regarding the extent to which such Claim has been satisfied.

2. Distributions by Each Liquidating Trust. Other than as specifically set forth in the Plan, the Liquidating Trusts shall make the Distributions required to be distributed under the Plan after the Effective Date; provided, however, each such Liquidating Trust may employ or contract with a Disbursing Agent to assist in or make the Distributions required by the Plan.

3. Delivery of Distributions and Undeliverable or Unclaimed Distributions. Distributions to Holders of Allowed Claims shall be made at the addresses set forth in the Schedules, unless such addresses are superseded by Proofs of Claim or transfers of claim filed pursuant to Bankruptcy Rule 3001 (or at the last known addresses of such Holders if a Debtor has been notified in writing of a change of address).

If a Distribution to any Holder of an Allowed Claim is returned to a Liquidating Trust as undeliverable or is otherwise unclaimed, no further Distributions shall be made to such Holder unless and until such Liquidating Trust is notified in writing of such Holder’s then-current address. Undeliverable and unclaimed Distributions shall be deposited in a segregated, interest-bearing account, designated as an “unclaimed distribution reserve” (the “Unclaimed Distribution Reserve”), for the benefit of all such similarly situated Persons until such time as a Distribution becomes deliverable, is claimed or is forfeited in accordance with Article IX.4. of the Plan.

On each Quarterly Distribution Date, the Liquidating Trusts shall make or cause to be made all Distributions that have become deliverable or have been claimed since the Effective Date or the immediately preceding Quarterly Distribution Date, as the case may be, together with any interest actually earned thereon.

4. Retained Proceeds. “Retained Proceeds” shall mean the Cash portion of the Liquidating Trust Assets that each Liquidating Trust determines, in its reasonable discretion, shall be retained as a reserve fund to cover, among other things (a) the Disputed Claim Reserves (it being understood that the OWB NA Liquidating Trust is entitled to request that the Bankruptcy Court fix the amount for the OWB NA Disputed Claim Reserve and the OWB USA Liquidating Trust is entitled to request the Bankruptcy Court fix the amount for the OWB USA


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Disputed Claim Reserve); and (b) the post-Effective Date costs and expenses of liquidating and administering the amounts to be distributed to Classes receiving Distributions under the Plan, including a reasonable reserve for the payment of the post-Effective Date compensation of the Liquidating Trustees, and the fees and expenses of any professionals, including any Disbursing Agent, retained by the Liquidating Trusts. Any amounts remaining in the OWB NA Disputed Claim Reserve and the OWB USA Disputed Claim Reserve shall be used to make the final Distributions under the relevant Plan.

Any Holder of an Allowed Claim that does not make a request pursuant to the Plan for an undeliverable or unclaimed Distribution within one (1) year after the attempted Distribution shall be deemed to have forfeited its Claim for such undeliverable or unclaimed Distribution and shall be forever barred and enjoined from asserting any such Claim or Cause of Action for an undeliverable or unclaimed Distribution against the Debtors and their Estates, any Liquidating Trustee, a Liquidating Trust, or its property, agents, Professionals, directors, officers, partners, employees, and affiliates. In such cases, any Cash in the Unclaimed Distribution Reserve for distribution on account of such claims for undeliverable or unclaimed Distributions shall become property to be distributed by the applicable Liquidating Trust notwithstanding any federal or state escheat laws to the contrary, and shall be distributed in accordance with the terms of the Plan. Nothing shall require any party, including, but not limited to, a Liquidating Trust or a Debtor, to attempt to locate any Holder of an Allowed Claim.

5. Allocation of Plan Distributions Between Principal and Interest. To the extent that any Allowed Claim entitled to a Distribution under the Plan is comprised of indebtedness and accrued but unpaid interest thereon, such Distribution shall, for all income tax purposes, be allocated to the principal amount of the Claim first and then, to the extent that the value of the Distributions exceeds the principal amount of the Claim, to the portion of such Claim representing accrued but unpaid interest.

6. Means of Payment. Payments made pursuant to the Plan shall be in Cash and shall be made, at the option and in the sole discretion of each Liquidating Trust, by (a) checks drawn on or (b) wire transfer from a domestic bank selected by the Liquidating Trust. Payments to foreign creditors may be made, at the sole option of each Liquidating Trust, in such currency and by such means as are necessary or customary in a particular foreign jurisdiction.

7. Withholding and Reporting Requirements. In connection with the Plan and all Distributions hereunder, the Debtors and the Liquidating Trusts shall comply with all withholding and reporting requirements imposed by any federal, state, local or foreign taxing authority, and all Distributions hereunder shall be subject to any such withholding and reporting requirements. The Debtors and the Liquidating Trusts shall be authorized to take any and all actions that may be necessary or appropriate to comply with such withholding and reporting requirements. All Persons holding Claims or Equity Interests shall be required to provide any information and documentation necessary to effect information reporting and the withholding of such taxes.

8. Setoffs. A Liquidating Trust may, but shall not be required to, exercise any right of setoff against any Claim pursuant to section 553 of the Bankruptcy Code or other applicable law; provided, however, that neither the failure to do so nor the allowance of any


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Claim hereunder shall constitute a waiver or release of any such claim that a Liquidating Trust may have against such Holder. The Debtors’ setoff rights are specifically preserved hereunder to the fullest extent possible under section 553 of the Bankruptcy Code and other applicable law.

9. Estimation. A Liquidating Trust may, at any time, request that the Bankruptcy Court estimate any Disputed Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether a Debtor or a Liquidating Trust had previously objected to such Claim. The Bankruptcy Court will retain jurisdiction to estimate any Claim at any time, including during proceedings concerning any objection to such Claim. In the event that the Bankruptcy Court estimates any Disputed Claim, such estimated amount may constitute either: (a) the Allowed amount of such Claim; (b) the amount on which a reserve is to be calculated for purposes of any reserve requirement under the Plan; or (c) a maximum limitation on such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on such Claim, the Debtor or the Liquidating Trust, as the case may be, may elect to object to ultimate payment of such Claim. All of the aforementioned Claims objection, estimation and resolution procedures are cumulative and not exclusive of one another.

J. Retention of Jurisdiction

1. Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of or related to the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction:

(a) to resolve any matters related to (i) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor or a Liquidating Trust may be liable and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Cure Claims and Rejection Damages Claims pursuant to section 365 of the Bankruptcy Code; (ii) a Liquidating Trust amending, modifying, or supplementing the Assumption Schedule; and (iii) any dispute regarding whether a contract or lease is or was executory or expired;

(b) to determine, adjudicate, or decide any other applications, adversary proceedings, contested matters, Litigation Claims, and any other matters pending on the Effective Date;

(c) to ensure that Distributions to Holders of Allowed Claims are accomplished as provided in the Plan;

(d) to resolve disputes as to the ownership of any Claim;

(e) to allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims;

(f) to enter and implement such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, revoked, reversed, modified, or vacated;


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(g) to issue such orders in aid of execution of the Plan as are authorized by section 1142 of the Bankruptcy Code;

(h) to consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any order of the Bankruptcy Court, including the Confirmation Order;

(i) to hear and determine all applications for compensation and reimbursement of expenses of Professionals under sections 330, 331 and 503(b) of the Bankruptcy Code;

(j) to hear and determine disputes arising in connection with the interpretation, implementation, consummation, or enforcement of the Plan;

(k) to hear and determine any issue for which the Plan requires an order of the Bankruptcy Court;

(l) to hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;

(m) to hear and determine disputes arising in connection with compensation and reimbursement of expenses of Professionals for services rendered during the period commencing on the Petition Date through and including the Effective Date;

(n) to hear and determine any Litigation Claims preserved under the Plan, with the exception of any Litigation Claims arising under the Maritime Lien Act (including such claims arising under the general maritime law of the U.S. or a foreign entity) being prosecuted or defended in pending or future interpleader or arrest actions involving Supply Receivables;

(o) to hear and determine any matter regarding the existence, nature and scope of a Debtor’s discharge;

(p) to hear and determine any matter, case, controversy, suit, dispute, or Litigation Claim (i) regarding the existence, nature, and scope of the discharge, releases, injunctions, and exculpation provided under the Plan, and (ii) enter such orders as may be necessary or appropriate to implement such discharge, releases, injunctions, exculpations, and other provisions;

(q) to enter a final decree closing a Chapter 11 Case;

(r) to issue injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Person with consummation or enforcement of the Plan;

(s) to adjudicate any and all disputes arising from or relating to Distributions under the Plan;


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(t) to enforce all orders previously entered by the Bankruptcy Court; and

(u) to hear any other matter not inconsistent with the Bankruptcy Code.

K. Executory Contracts and Unexpired Leases

1. Assumption of Executory Contracts and Unexpired Leases

(a) Deemed Rejection. Except as otherwise provided, each Executory Contract and Unexpired Lease not previously assumed, assumed and assigned, or rejected as of the Effective Date by a Final Order shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date, unless any such Executory Contract or Unexpired Lease: (a) is expressly identified on a schedule to the Plan Supplement as assumed (the “Assumption Schedule”); (b) has been previously assumed or rejected by the Debtors by Final Order or has been rejected by the Debtors by order of the Bankruptcy Court as of the Effective Date, which order becomes a Final Order after the Effective Date; (c) is the subject of a motion to assume pending as of the Effective Date; or (d) is otherwise assumed pursuant to the terms of the Plan.

(b) Assumption Schedule. The Debtors will file the Assumption Schedule as part of the Plan Supplement. The Assumption Schedule will include (a) the name of the non-Debtor counterparty, (b) the legal description of the Executory Contract or Unexpired Lease to be assumed, and (c) the proposed cure. On or as soon as practicable thereafter, the Debtors will serve a notice of the proposed assumption as well as a notice of filing of the Assumption Schedule upon each non-Debtor counterparty listed thereon, which will describe the procedures by which such parties may object to the proposed assumption of their respective Executory Contract or Unexpired Lease and explain how such disputes will be resolved by the Bankruptcy Court if the parties are not able to resolve a dispute consensually.

(c) Effectiveness of the Confirmation Order. The Confirmation Order will constitute an order of the Bankruptcy Court approving such assumption or rejection pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date or as otherwise set forth in the Plan Supplement.

(d) Rejection Damage Claims. If the rejection by the Debtors of an Executory Contract or Unexpired Lease gives rise to a Rejection Damage Claim, a Proof of Claim must be filed with the Bankruptcy Court within (a) thirty (30) days after the date of entry of an order of the Bankruptcy Court approving such rejection, or (b) if the Executory Contract or Unexpired Lease is not listed on the Assumption Schedule, within thirty (30) days after the date of entry of the Confirmation Order. For the avoidance of doubt, all Allowed Rejection Damage Claims shall be treated as General Unsecured Claims.

(e) REQUIREMENT TO FILE A PROOF OF CLAIM FOR REJECTION DAMAGE CLAIMS. ANY REJECTION DAMAGE CLAIMS THAT ARE NOT TIMELY FILED SHALL BE DISALLOWED AUTOMATICALLY, FOREVER


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BARRED FROM ASSERTION, AND SHALL NOT BE ENFORCEABLE AGAINST A DEBTOR OR A LIQUIDATING TRUST WITHOUT THE NEED FOR ANY OBJECTION BY A DEBTOR OR A LIQUIDATING TRUST OR FURTHER NOTICE TO OR ACTION, ORDER, OR APPROVAL OF THE BANKRUPTCY COURT, AND ANY REJECTION DAMAGE CLAIM SHALL BE DEEMED FULLY SATISFIED, RELEASED, AND DISCHARGED, NOTWITHSTANDING ANYTHING IN THE SCHEDULES OR A PROOF OF CLAIM TO THE CONTRARY.

2. Cure Claims

At the election of a Debtor or a Liquidating Trust, as applicable, any monetary defaults under each Executory Contract and Unexpired Lease to be assumed under the Plan shall be satisfied pursuant to section 365(b)(1) of the Bankruptcy Code in one of the following ways: (a) payment of the Cure Claim in Cash on or as soon as reasonably practicable after the first to occur of (i) thirty (30) days after the determination of the Cure Claim, and (ii) the Effective Date or such other date as may be set by the Bankruptcy Court, or (b) on such other terms as agreed to by a Debtor or Liquidating Trust and the non-Debtor counterparty to such Executory Contract or Unexpired Lease. In the event of a dispute pertaining to assumption or assignment, the Cure Claim payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the resolution of the dispute in accordance with Article XII of the Plan.

The only adequate assurance of future performance required shall be the promise of a Liquidating Trust to perform all obligations under any Executory Contract or Unexpired Lease under the Plan.

ASSUMPTION OF ANY EXECUTORY CONTRACT OR UNEXPIRED LEASE PURSUANT TO THE PLAN OR OTHERWISE SHALL RESULT IN THE FULL RELEASE AND SATISFACTION OF ANY CLAIMS OR DEFAULTS, WHETHER MONETARY OR NONMONETARY, INCLUDING DEFAULTS OF PROVISIONS RESTRICTING THE CHANGE IN CONTROL OR OWNERSHIP INTEREST COMPOSITION OR OTHER BANKRUPTCY-RELATED DEFAULTS, ARISING UNDER ANY ASSUMED EXECUTORY CONTRACT OR UNEXPIRED LEASE AT ANY TIME BEFORE THE DATE OF ASSUMPTION OF SUCH EXECUTORY CONTRACT OR UNEXPIRED LEASE. ANY PROOFS OF CLAIM FILED WITH RESPECT TO AN EXECUTORY CONTRACT OR UNEXPIRED LEASE THAT HAS BEEN ASSUMED SHALL BE DEEMED DISALLOWED AND EXPUNGED, WITHOUT FURTHER NOTICE TO OR ACTION, ORDER, OR APPROVAL OF THE BANKRUPTCY COURT.

Obligations arising under insurance policies assumed by the Debtors before the Effective Date shall be adequately protected in accordance with any order of the Bankruptcy Court authorizing such assumption.

3. Reservation of Rights

Neither the exclusion nor inclusion of any contract or lease in the Plan Supplement, as applicable, nor anything contained in the Plan, shall constitute an admission by the Debtors that


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any such contract or lease is in fact an Executory Contract or Unexpired Lease for which it has any liability thereunder. In the event a written objection is filed with the Bankruptcy Court as to whether a contract or lease is executory or unexpired, the right of the Debtors or a Liquidating Trust to move to assume or reject such contract or lease shall be extended until the date that is thirty (30) days after the entry of a Final Order determining that the contract or lease is executory or unexpired, in which case the deemed assumptions and rejections provided for in the Plan shall not apply to such contract or lease.

4. Insurance Policies

Notwithstanding anything in the Plan to the contrary, all of the Debtors’ insurance policies and any agreements, documents, or instruments relating thereto, are treated as and deemed to be Executory Contracts under the Plan. On the Effective Date, the Debtors shall be deemed to have assumed all insurance policies and any agreements, documents, and instruments related thereto, which shall be deemed assigned by the relevant Debtor to the relevant Liquidating Trust on the Effective Date.

5. Post-Petition Contracts and Leases

All contracts, agreements, and leases that were entered into by a Debtor or assumed by a Debtor after the Petition Date shall be deemed assigned by that Debtor to the corresponding Liquidating Trust on the Effective Date.

L. Procedures for Resolving Disputed, Contingent, and Unliquidated Claims

1. Prosecution of Objections. The Liquidating Trusts shall be authorized to, and shall, resolve all Disputed Claims by withdrawing or settling such objections thereto, or by litigating to judgment in the Bankruptcy Court or such other court having jurisdiction the validity, nature, and/or amount thereof.

2. No Distributions Pending Allowance. Notwithstanding any other provision of the Plan, no payments or Distributions shall be made with respect to all or any portion of a Disputed Claim unless and until all objections to such Disputed Claim have been settled or withdrawn or have been determined by Final Order, and the Disputed Claim, or some portion thereof, has become an Allowed Claim.

3. Amendments to Claims; Claims Filed After the Confirmation Date. No Claim that was required to be filed by the Bar Date or the Administrative Expense Bar Date (as the case may be) shall be filed with the Bankruptcy Court or amended (except to reduce the amount of the Claim) after the respective bar date. Any Claim that was required to be filed by the Bar Date or the Administrative Expense Bar Date (as the case may be) that is instead filed after the respective bar date shall be deemed Disallowed without further action or order of the Bankruptcy Court. Any timely filed Claim that was amended (except to reduce the amount of the Claim) after the Bar Date or the Administrative Expense Bar Date (as the case may be) shall be deemed Disallowed with respect to the amended claim without further action or order of the Bankruptcy Court; provided, however, the original filed Claim shall not be affected.


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M. Effectiveness of the Plan

1. Conditions Precedent to Effectiveness.

The Plan shall not become effective unless and until the Confirmation Date has occurred and the following conditions have been satisfied in full or waived in accordance with Article XIII.B:

(a) the Confirmation Order shall not have been stayed, modified, or vacated on appeal;

(b) all actions, documents, certificates, and agreements necessary to implement the Plan (including without limitation the OWB NA Liquidating Trust Agreement and the OWB USA Liquidating Trust Agreement) shall have been effected or executed and delivered to the required parties and, to the extent required, filed with the applicable Governmental Units in accordance with applicable laws;

(c) all authorizations, consents and regulatory approvals required for the Plan’s effectiveness (if any) shall have been obtained;

(d) there shall not be in effect on the Effective Date any (a) order entered by a U.S. court; (b) any order, opinion, ruling, or other decision entered by any other court or Governmental Unit or (c) any U.S. or other applicable law staying, restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions contemplated by the Plan;

(e) the Bankruptcy Court shall have entered a Final Order granting the OWB Holding Settlement Motion and approving the OWB Holding Settlement Agreement, which agreement shall be in form and substance acceptable to the Debtors, the Committee, and ING Bank; and

(f) to the extent the Debtors have withdrawn the Plan as it relates to OWB USA only and have sought approval of the Confirmation Alternative Settlement from the Bankruptcy Court, the Bankruptcy Court shall have entered a Final Order approving the Confirmation Alternative Settlement Agreement, which agreement shall be in form and substance acceptable to the Debtors, the Committee, and ING Bank.

2. Waiver of Conditions Precedent to Effectiveness

The Debtors, with the consent of the Committee and ING Bank, may waive conditions set forth in Article XIII.A above at any time without leave of or order of the Bankruptcy Court and without any formal action.

3. Effect of Failure of Conditions

In the event that the Effective Date does not occur on or before January 15, 2016 (or such later date agreed to by the Debtors, the Committee, and ING Bank), upon notification (which shall be in form and substance as agreed among the Debtors, the Committee, and ING Bank)


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submitted by the Debtors to the Bankruptcy Court, or as otherwise may be requested by the Debtors, the Committee, or ING Bank after notice and a hearing, the Bankruptcy Court may vacate the Confirmation Order. Upon any such vacation of the Confirmation Order: (a) no Distributions under the Plan shall be made; (b) the Debtors and all Holders of Claims and Equity Interests shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date had never occurred; and (c) the Debtors’ obligations with respect to the Claims and Equity Interests shall remain unchanged and nothing contained in the Plan shall constitute or be deemed a waiver, release, or discharge of any Claims or Equity Interests by or against the Debtors or any other Person or to prejudice in any manner the rights of the Debtors or any Person in any further proceedings involving the Debtors unless otherwise ordered by the Bankruptcy Court.

4. Vacatur of Confirmation Order

If a Final Order denying confirmation of the Plan is entered, or if the Confirmation Order is vacated, then the Plan shall be null and void in all respects, and nothing contained in the Plan shall: (a) constitute a waiver, release, or discharge of any Claims against or Equity Interests in any Debtor; (b) prejudice in any manner the rights of the Holder of any Claim against, or Equity Interest in, the Debtors; (c) prejudice in any manner any right, remedy, or claim of the Debtors; or (d) be deemed an admission against interest by the Debtors.

5. Revocation, Withdrawal, or Non-Consummation

(a) Right to Revoke or Withdraw. The Debtors reserve the right to revoke or withdraw the Plan as a whole, or solely as it relates to either OWB USA or OWB NA, subject only to the agreement of the Committee and ING Bank, at any time before the Effective Date.

(b) Effect of Withdrawal, Revocation, or Non-Consummation. If the Debtors revoke or withdraw the Plan prior to the Effective Date, or if the Confirmation Date or the Effective Date does not occur, the Plan, any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain any Claim or Equity Interest or Class of Claims or Equity Interests), the assumption or rejection of Executory Contracts, or Unexpired Leases effected by the Plan, any release, or exculpation provided for in the Plan, and any document or agreement executed pursuant to the Plan shall be null and void. In such event, nothing contained in the Plan and no acts taken in preparation for consummation of the Plan shall be deemed to constitute a waiver or release of any Claims by or against or Equity Interests in the Debtors or any other Person, to prejudice in any manner the rights of the Debtors or any Person in any further proceedings involving the Debtors, or to constitute an admission of any sort by the Debtors or any other Person.

N. Miscellaneous Provisions

1. Immediate Binding Effect

Notwithstanding Bankruptcy Rules 3020(e), 6004(h), 7062, or otherwise, upon the occurrence of the Effective Date, the terms of the Plan shall be immediately effective and


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enforceable and deemed binding upon the Debtors, the Liquidating Trusts, and any and all Holders of Claims or Equity Interests (irrespective of whether such Claims or Equity Interests are deemed to have accepted the Plan), all Persons that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Plan, each Person acquiring property under the Plan, and any and all non-Debtor parties to Executory Contracts and Unexpired Leases with any Debtor.

2. Governing Law

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules), the laws of the State of Connecticut (without reference to the conflicts of laws provisions thereof that would require or permit the application of the law of another jurisdiction) shall govern the construction and implementation of the Plan and any agreements, documents, and instruments executed in connection with the Plan, unless otherwise specified.

3. Filing or Execution of Additional Documents

On or before the Effective Date, the Debtors or the Liquidating Trusts shall (on terms materially consistent with the Plan) file with the Bankruptcy Court or execute, as appropriate, such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan, which shall be in form and substance acceptable to the Debtors, the Committee, and ING Bank.

4. Term of Injunctions or Stays

All injunctions or stays provided for in the Chapter 11 Cases under sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until the Effective Date.

5. Withholding and Reporting Requirements

In connection with the Plan and all instruments issued in connection therewith and Distributions thereon, the Liquidating Trusts shall comply with all withholding and reporting requirements imposed by any U.S. federal, state, local or foreign taxing authority and all Distributions hereunder shall be subject to any such withholding and reporting requirements. Notwithstanding any provision in the Plan to the contrary, the Liquidating Trusts shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the Distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding any Distribution pending receipt of information and documentation necessary or appropriate to facilitate such Distributions, or establishing any other mechanisms they believe are reasonable and appropriate.

6. Exemption From Transfer Taxes

Pursuant to and to the fullest extent permitted by section 1146(a) of the Bankruptcy Code, all transfers of property pursuant hereto shall not be subject to any stamp, conveyance,


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mortgage, sales or use, real estate transfer, recording, or other similar tax or governmental assessment, and upon entry of the Confirmation Order, the appropriate state or local governmental officials or agents shall forego the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental assessment.

7. Plan Supplement

All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full in the Plan. The documents contained in the Plan Supplement shall be available online at www.pacer.gov. The Debtors reserve the right, in accordance with the terms hereof, to modify, amend, supplement, restate, or withdraw any part of the Plan Supplement after they are filed and shall promptly make such changes available online at www.pacer.gov.

8. Bar Dates for Administrative Claims

The Confirmation Order will establish the Administrative Expense Bar Date as the deadline for filing Administrative Claims (other than Fee Claims) to the extent that such Administrative Claims were incurred after the Petition Date and not paid in the ordinary course of business. Holders of asserted Administrative Claims not paid before the Confirmation Date shall submit proofs of claim on or before such Administrative Expense Bar Date or forever be barred from doing so. The notice of confirmation to be delivered under Bankruptcy Rules 3020(c) and 2002(f) will set forth such date and constitute notice of this Administrative Expense Bar Date. The Debtors and the Liquidating Trusts shall have ninety (90) days (or such longer period as may be allowed by order of the Bankruptcy Court) following the Administrative Expense Bar Date to review and object to such Administrative Claims before a hearing for determination of allowance of such Administrative Claims. For the avoidance of doubt, the Administrative Expense Bar Date may not be used by any Person asserting a Section 503(b)(9) Claim which claims were due to be filed by the Bar Date.

9. Amendment or Modification of the Plan

Subject to the limitations contained in the Plan, the Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, and subject to the agreement of the Committee and ING Bank, to amend or modify the Plan prior to the entry of the Confirmation Order, including amendments or modifications to satisfy section 1129(b) of the Bankruptcy Code. After entry of the Confirmation Order, the Debtors or the Liquidating Trusts, as the case may be, may, with the agreement of ING Bank, and the Committee (prior to its dissolution pursuant to Article XIV.J) and upon order of the Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b) of the Bankruptcy Code.

10. The Creditors’ Committee

The Creditors’ Committee will continue in existence until the Effective Date, at which time it will be dissolved and its members will be released from all their duties, responsibilities and obligations in connection with the Chapter 11 Cases, including with respect to the Plan and


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its implementation. The retention or employment of the Creditors’ Committee’s Professionals also will terminate on the Effective Date, except with respect to (a) the Fee Claims of the Committee’s Professionals, and (b) any appeals of the Confirmation Order. All Fees and expenses of Creditors’ Committee’s Professionals through the Effective Date will be paid in accordance with the terms and conditions of a Final Order approving Fee Claims and the Plan.

11. Successors and Assigns

The Plan shall be binding upon and inure to the benefit of each of the Debtors and their respective successors and assigns, including, without limitation, the Liquidating Trusts. 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 such Person.

12. Section 1125(e) of the Bankruptcy Code

As of the Confirmation Date, the Debtors shall be deemed to have solicited acceptances hereof in good faith and in compliance with the applicable provisions of the Bankruptcy Code.

13. Tax Reporting and Compliance

The Debtors and the Liquidating Trusts are hereby authorized to request an expedited determination under section 505(b) of the Bankruptcy Code of the tax liability of the Debtors for all taxable periods ending after the Petition Date through, and including, the Effective Date.

14. Conflicts

The terms of the Plan shall govern in the event of any inconsistency between the Plan and the Disclosure Statement. In the event of any inconsistency between the Plan and the Confirmation Order, the Confirmation Order shall govern with respect to such inconsistency.

V. CONFIRMATION OF THE PLAN

A. General Requirements of Section 1129

At the Confirmation Hearing, the Bankruptcy Court must determine whether the Bankruptcy Code’s requirements for confirmation of the Plan have been satisfied, in which event the Bankruptcy Court will enter an order confirming the Plan. As set forth in section 1129 of the Bankruptcy Code, these requirements are as follows:

1. The plan complies with the applicable provisions of the Bankruptcy Code.

2. The proponent of the plan complied with the applicable provisions of the Bankruptcy Code.

3. The plan has been proposed in good faith and not by any means forbidden by law.


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4. Any payment made or promised by the debtors, by the plan proponents, or by a person issuing securities or acquiring property under the plan, for services or for costs and expenses in, or in connection with, the case, or in connection with the plan and incident to the case, has been approved by, or is subject to the approval of, the Bankruptcy Court as reasonable.

5. (a) (i) The proponent of the plan has disclosed the identity and affiliations of any individual proposed to serve, after confirmation of the plan, as a director, officer, or voting trustee of the debtor, an affiliate of the debtor participating in a joint plan with the debtor, or a successor to the debtor under the plan; and

(ii) the appointment to, or continuance in, such office of such individual, is consistent with the interests of creditors and equity security holders and with public policy; and

(b) the proponent of the plan has disclosed the identity of any insider that will be employed or retained by the reorganized debtors, and the nature of any compensation for such insider.

6. Any governmental regulatory commission with jurisdiction, after confirmation of the plan, over the rates of the debtor has approved any rate change provided for in the plan, or such rate change is expressly conditioned on such approval.

7. With respect to each impaired class of claims or interests:

(a) each holder of a claim or interest of such class has accepted the plan or will receive or retain under the plan on account of such claim or interest property of a value, as of the effective date of the plan, that is not less than the amount that such holder would so receive or retain if the Debtor was liquidated on such date under chapter 7 of the Bankruptcy Code on such date; or

(b) if section 1111(b)(2) of the Bankruptcy Code applies to the claims of such class, the holder of a claim of such class will receive or retain under the plan on account of such claim property of a value, as of the effective date of the plan, that is not less than the value of such holder’s interest in the estate’s interest in the property that secures such claims.

8. With respect to each class of claims or interests:

(a) such class has accepted the plan; or

(b) such class is not impaired under the plan.

9. Except to the extent that the holder of a particular claim has agreed to a different treatment of such claim, the plan provides that:

(a) with respect to a claim of a kind specified in section 507(a)(2) or 507(a)(3) of the Bankruptcy Code, on the effective date of the plan, the holder of such claim will receive on account of such claim cash equal to the allowed amount of such claim;


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(b) with respect to a class of claims of a kind specified in section 507(a)(1), 507(a)(4), 507(a)(5), 507(a)(6), or 507(a)(7) of the Bankruptcy Code, each holder of a claim of such class will receive:

(i) if such class has accepted the plan, deferred cash payments of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or

(ii) if such class has not accepted the plan, cash on the effective date of the plan equal to the allowed amount of such claim; and

(c) with respect to a claim of a kind specified in section 507(a)(8) of the Bankruptcy Code, the holder of a claim will receive on account of such claim regular installment payments in cash –

(i) of a total value, as of the effective date of the plan, equal to the allowed amount of such claim;

(ii) over a period ending not later than 5 years after the date of the order for relief under section 301, 302, or 303; and

(iii) in a manner not less favorable than the most favored nonpriority unsecured claim provided for by the plan (other than cash payments made to a class of creditors under section 1122(b); and

(iv) with respect to a secured claim which would otherwise meet the description of an unsecured claim of a governmental unit under section 507(a)(8), but for the secured status of that claim, the holder of that claim will receive on account of that claim, cash payments, in the same manner and over the same period, as described in subparagraph (c) above.

10. If a class of claims is impaired under the Plan, at least one class of claims that is impaired has accepted the Plan, determined without including any acceptance of the Plan by any insider holding a claim of such class.

11. Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtors or any successor to the debtors under the plan, unless such liquidation or reorganization is proposed in the plan.

12. All fees payable under 28 U.S.C. § 1930, as determined by the Bankruptcy Court at the hearing on confirmation of the plan, have been paid or the plan provides for the payments of all such fees on the effective date of the plan.

13. The plan provides for the continuation after its effective date of payment of all retiree benefits, as that term is defined in section 1114 of the Bankruptcy Code, at the level established pursuant to subsection (e)(1)(B) or (g) of section 1114, at any time prior to confirmation of the plan, for the duration of the period the debtors have obligated themselves to provide such benefits.


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The Debtors believe that the Plan satisfies all the foregoing statutory requirements and that they have complied, or will have complied with, all the requirements of relevant provisions of chapter 11 of the Bankruptcy Code.

B. Unfair Discrimination and Fair and Equitable Tests

To obtain non-consensual confirmation of a plan, it must be demonstrated to the Bankruptcy Court that the Plan “does not discriminate unfairly” and is “fair and equitable” with respect to each impaired, non-accepting class. The Bankruptcy Code provides a non-exclusive definition of the phrase “fair and equitable.” The Bankruptcy Code establishes “cram-down” tests for secured creditors, unsecured creditors and equity holders, as follows:

1. Secured Creditors. Either (a) each impaired secured creditor retains its liens securing its secured claim and receives on account of its secured claim deferred cash payments having a present value equal to the amount of its allowed secured claim, (b) each impaired secured creditor realizes the “indubitable equivalent” of its allowed secured claim, or (c) the property securing the claim is sold free and clear of liens, with such liens to attach to the proceeds of the sale and the treatment of such liens on proceeds to be as provided in clause (a) or (b) of this subparagraph.

2. Unsecured Creditors. Either (a) each impaired unsecured creditor receives or retains under the Plan, property of a value equal to the amount of its allowed claim, or (b) the holders of claims and interests that are junior to the claims of the dissenting class will not receive any property under the Plan.

3. Equity Interests. Either (a) each holder of an equity interest will receive or retain under the Plan, property of a value equal to the greatest of the fixed liquidation preference to which such holder is entitled, the fixed redemption price to which such holder is entitled or the value of the interest, or (b) the holder of an interest that is junior to the non-accepting class will not receive or retain any property under the Plan.

Pursuant to the Plan, Holders of Equity Interests and Subordinated Claims will receive nothing and, accordingly, are deemed to have rejected the Plan. As a result, the Bankruptcy Court will determine at the Confirmation Hearing whether the Plan is fair and equitable with respect to, and does not discriminate unfairly against, any rejecting impaired Classes of Claims or Equity Interests. The Debtors do not believe the Plan discriminates unfairly against, and is fair and equitable with respect to, each Impaired Class of Claims or Equity Interests and, thus, that the Plan should be confirmed under the applicable “cramdown” standards.

C. Feasibility

Section 1129(a)(11) of the Bankruptcy Code provides that a chapter 11 plan may be confirmed only if the Bankruptcy Court finds such plan to be feasible. A feasible plan is one which will not lead to a need for further reorganization of the debtor. Since the Plan provides for the liquidation of OWB NA and OWB USA as well as the dissolution of OWB Holding, the Bankruptcy Court will find that the Plan is feasible if it determines that the Debtors or the applicable Liquidating Trustee, as the case may be, will be able to satisfy the conditions


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precedent to the Effective Date and otherwise have sufficient funds to meet the post-Confirmation Date obligations to pay for the costs of administering and fully consummating the Plan and closing the Chapter 11 Cases.

D. Best Interests Test

The Bankruptcy Code provides that the Plan will not be confirmed, regardless of whether or not anyone objects to confirmation, unless the Bankruptcy Court finds that the Plan is in the “best interests” of all Classes of Claims and Equity Interests which are impaired. The “best interests” test will be satisfied by a finding of the Bankruptcy Court that either (a) all Holders of Impaired Claims or Equity Interests have accepted the Plan, or (b) the Plan will provide such a Holder that has not accepted the Plan with a recovery at least equal in value to the recovery such holder would receive if the Debtors were liquidated under chapter 7 of the Bankruptcy Code.

The starting point in determining whether the Plan meets the “best interests” test is a determination of the amount of proceeds that would be generated from the liquidation of the Debtors’ remaining assets in the context of a chapter 7 liquidation. Such value must then be reduced by the costs of such liquidation, including costs incurred during the Chapter 11 Cases and allowed under chapter 7 of the Bankruptcy Code (such as Professionals’ fees and expenses), a trustee’s fees, and the fees and expenses of Professionals retained by a trustee. The potential chapter 7 liquidation distribution in respect of each Class must be further reduced by costs imposed by the delay caused by conversion to chapter 7. The net present value of a hypothetical chapter 7 liquidation distribution in respect of an impaired Class is then compared to the recovery in respect of such Class provided for in the Plan. A liquidation analysis is annexed hereto as Exhibit D.

The Debtors submit that each Impaired Class will receive under the Plan a recovery at least equal in value to the recovery such Class would receive in a liquidation of the Debtors under chapter 7 of the Bankruptcy Code.

E. Acceptance and Cramdown

A plan is accepted by an impaired class of claims if holders of two-thirds in dollar amount and a majority in number of claims of that class vote to accept the Plan. Only those holders of claims who are entitled to vote and actually vote to accept or to reject a plan count in this tabulation. In addition to this voting requirement, section 1129 of the Bankruptcy Code requires that a plan be accepted by each holder of a claim in an impaired class or that the Plan otherwise be found by the bankruptcy court to be in the best interests of each holder of a claim or interest in an impaired class. In addition, the impaired classes must accept the Plan for the Plan to be confirmed without application of the fair and equitable test of Section 1129(b) of the Bankruptcy Code, which is discussed below.

The Bankruptcy Code contains provisions for confirmation of a plan even if it is not accepted by all impaired classes, as long as at least one impaired class of claims has accepted the Plan. These so-called “cramdown” provisions are set forth in section 1129(b) of the Bankruptcy Code. The Plan may be confirmed under the cramdown provisions, if, in addition to satisfying the other requirements of Section 1129 of the Bankruptcy Code, it: (a) is “fair and equitable”;


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and (b) “does not discriminate unfairly” with respect to each Class of Claims or Equity Interests that is impaired under, and has not accepted, the Plan. The “fair and equitable” standard, also known as the “absolute priority rule,” requires, among other things, that unless a dissenting class of unsecured claims receives full compensation for its allowed claims, no holder of allowed claims in any junior class may receive or retain any property on account of such claims. With respect to a dissenting class of secured claims, the “fair and equitable” standard requires, among other things, that holders either (a) retain their liens and receive deferred cash payments with a value as of the effective date of a plan equal to the present value of their interest in property of the estate or (b) otherwise receive the indubitable equivalent of their secured claims. With respect to unsecured claims the “fair and equitable” standard of section 1129(b)(2)(B) has also been interpreted to prohibit any class senior to a dissenting class from receiving more than 100% of its allowed claims under a plan.

The Debtors believe that, if necessary, the Plan may be crammed down over the dissent of certain Classes, in view of the treatment proposed for such Classes.

The requirement that a plan not “discriminate unfairly” means, among other things, that a dissenting class must be treated substantially equally with respect to other classes of equal rank. The Debtors do not believe that the Plan unfairly discriminates against any Class that may not accept or otherwise consent to the Plan.

VI. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN

The following is a brief summary of certain federal income tax consequences that Holders of Claims and Equity Interests should consider. This summary does not address all aspects of federal income taxation that may be relevant to all persons considering the Plan. Special federal income tax considerations not discussed in this summary may be applicable to, among other persons, financial institutions, insurance companies, foreign corporations, tax-exempt institutions and persons who are not citizens or residents of the U.S. In addition, this summary does not discuss any foreign, state or local tax law, the effects of which may be significant.

This summary is based on the Internal Revenue Code of 1986, as amended (“IRC”), the regulations promulgated thereunder, judicial decisions, and administrative positions of the Internal Revenue Service (the “Service”). All Section references in this summary are to Sections of the IRC. Any change in the foregoing authorities may be applied retroactively in a manner that could adversely affect persons considering the Plan.

No ruling will be sought from the Service with respect to the federal income tax aspects of the Plan and there can be no assurance that the conclusions set forth in this summary would be accepted by the Service. No opinion has been sought or obtained with respect to the tax aspects of the Plan.

THIS SUMMARY IS INTENDED FOR GENERAL INFORMATION ONLY. PERSONS CONSIDERING THE PLAN ARE ADVISED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE PLAN AND THE LIQUIDATION OF THE DEBTORS AND OTHER


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TRANSACTIONS PROVIDED OR CONTEMPLATED UNDER THE PLAN, THE RECEIPT OF ANY PAYMENT UNDER THE PLAN, AND THE IMPACT ON THAT PERSON OR ANY OTHER PERSON OF ANY OBLIGATION IMPOSED UNDER THE PLAN.

A. Tax Consequences to the Debtors

Under the IRC, a taxpayer generally must include in gross income the amount of any discharge-of-indebtedness income realized during the taxable year. If a Liquidating Trust or the Debtors pay all Allowed Claims in full, the Debtors will not recognize any discharge-of-indebtedness income pursuant to Section 108 of the IRC. If, however, a Liquidating Trust or the Debtors do not pay all Allowed Claims in full, then the Debtors may be required to realize discharge-of-indebtedness income with respect to some or all of such claims.

B. Tax Consequences To Creditors and Liquidating Trust Beneficiaries

A Holder of an Allowed Claim who receives Cash or other consideration, including a Liquidating Trust Interest, in satisfaction of any Allowed Claim may recognize ordinary income. Each Holder of a Claim is urged to consult with its tax advisor regarding the tax implications of any Distribution it may receive under the Plan.

C. Tax Consequences to Holders of Equity Interests

Under the Plan, Equity Interests are to be cancelled and no Holder of an Equity Interest will receive any Distribution under the Plan. Each Holder of an Equity Interest is urged to consult with its tax advisor regarding the tax implication of the cancellation of their Equity Interests under the Plan.

VII. RISK FACTORS TO BE CONSIDERED

A. Failure to Receive Requisite Acceptances of the Plan

Classes 3, 4, 9, and 10 are the only Classes that are entitled to vote to accept or reject the Plan. If none of these Classes accept the Plan, the Debtors will not be able to seek confirmation of the Plan under section 1129(b) of the Bankruptcy Code for either of OWB USA or OWB NA, because at least one Impaired Class of Claims in respect of each of OWB USA and OWB NA will not have voted to accept the Plan as required by section 1129(a)(10) of the Bankruptcy Code. If at least one Impaired Class of Claims against OWB NA votes to accept the Plan but neither of the Impaired Classes of Claims against OWB USA votes to accept the Plan, the Debtors may pursue confirmation of the Plan solely as it relates to OWB NA and contemporaneously pursue the Confirmation Alternative Statement described in section III.D.6.

If none of the Impaired Classes accept or cannot be deemed to have accepted the Plan,

the Debtors may seek to accomplish any alternative restructuring of their capitalization and obligations to Holders of Claims and obtain acceptances to an alternative plan of reorganization for the Debtors, and/or may be required to liquidate their Estates under chapter 7 of the Bankruptcy Code. There can be no assurance that the terms of any alternative restructuring


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arrangement or a chapter 11 plan would be similar to or as favorable to Holders of Claims as those proposed in the Plan.

B. Failure to Confirm the Plan

Even if the Impaired Classes accept or could be deemed to have accepted the Plan, the Plan may not be confirmed by the Bankruptcy Court, which, as a court of equity which may exercise substantial discretion, may decide not to confirm the Plan. Although the Debtors believe that the Plan will meet all applicable tests, there can be no assurance that the Bankruptcy Court will reach the same conclusion.

Additionally, the solicitation of votes from Holders of Impaired Claims to accept the Plan

must comply with section 1125 of the Bankruptcy Code and the applicable Bankruptcy Rules with respect to the length of the solicitation period and the adequacy of the information contained in the Disclosure Statement. Although the Debtors believe that the solicitation of votes from Holders of Impaired Claims to accept the Plan will comply with section 1125 of the Bankruptcy Code and the applicable Bankruptcy Rules, there can be no assurance that the Bankruptcy Court will reach the same conclusion.

C. Failure to Consummate the Plan

One condition to consummation of the Plan is the entry of the Confirmation Order, as well as consummation of certain transactions to implement the Plan, including obtaining all necessary authorizations and consents. As of the date of this Disclosure Statement, there can be no assurances that these or the other conditions to consummation of the Plan will be satisfied or waived. Accordingly, even if the Plan is confirmed by the Bankruptcy Court, there can be no assurance that the Plan will be consummated and the restructuring completed.

D. Delays of Confirmation or the Effective Date

Any delays of either Confirmation or the Effective Date of the Plan could result in, among other things, increased administrative costs. These negative effects of delay of either Confirmation or the Effective Date could endanger the ability of the Debtors to consummate the Plan.

E. Risk of Successfully Creating Value in Liquidation Trust

In Section I, the Debtors provided a forecast of potential recoveries for various Classes of General Unsecured Creditors permitted to vote on the Plan.

The potential to have more than a nominal distribution to those General Unsecured

Creditors, if any distribution at all, is dependent largely on the success of the Liquidation Trusts in controlling the costs of winding down the Debtors’ businesses and monetizing the Liquidating Trust Assets. The Debtors cannot state with any certainty what the outcome of the Liquidation Trusts’ efforts will be.


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F. Forward Looking Statements in this Disclosure Statement May Prove to be Inaccurate

Many of the statements included in this Disclosure Statement contain forward-looking statements and information relating to the Debtors. These forward-looking statements are generally identified by the use of terminology such as “may,” “will,” “could,” “should,” “potential,” “continue,” “expect,” “intend,” “plan,” “estimate,” “project,” “forecast,” “anticipate,” “believe,” or similar phrases or the negatives of such terms. These statements are based on the beliefs of management as well as assumptions made using information currently available to management. Such statements are subject to risks, uncertainties and assumptions, as well as other matters not yet known or not currently considered material by management. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those anticipated, estimated or projected. Given these risks and uncertainties, you are cautioned not to place undue reliance on such forward-looking statements. Forward-looking statements do not guarantee future performance. You should recognize these statements for what they are and not rely on them as facts. The Debtors do not undertake any obligation to update or revise any of these forward-looking statements to reflect new events or circumstances after the date of this Disclosure Statement. VIII. ALTERNATIVES TO CONFIRMATION AND CONSUMMATION

OF THE PLAN

The alternatives to the Plan are very limited and not likely to benefit creditors. Although the Debtors could theoretically file a new plan, the most likely alternatives are:

A. Liquidation Under Chapter 7 of the Bankruptcy Code

The Debtors could be liquidated under chapter 7 of the Bankruptcy Code. The Debtors believe that liquidation under chapter 7 of the Bankruptcy Code would likely result in a reduced recovery for creditors as well as further delay in potential distributions arising from: (i) appointment of a chapter 7 trustee and the engagement of counsel for by the trustee; and (ii) the loss of the settlement with ING Bank embodied in the Plan.

B. Alternative Plan(s) of Reorganization

Failure to confirm the Plan as it relates to OWB USA may lead to, among other things, the pursuit of the Confirmation Alternative Settlement, which provides for a significantly lower anticipated recovery for Holders of Allowed Claims against OWB USA. In formulating and developing the Plan, the Debtors have explored numerous alternatives and engaged in an extensive negotiating process with ING Bank, including multiple mediation sessions before former Judge Alan Nevas as described in Section III.D.6.

The Debtors believe that not only does the Plan fairly adjust the rights of various Classes of Claims, but also that the Plan provides superior recoveries to Classes 4 and 10 over any alternative.


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THE DEBTORS BELIEVE THAT CONFIRMATION OF THE PLAN IS PREFERABLE TO ANY ALTERNATIVE BECAUSE THE PLAN MAXIMIZES THE AMOUNT OF DISTRIBUTIONS TO ALL HOLDERS OF CLAIMS AND ANY ALTERNATIVE TO CONFIRMATION OF THE PLAN WILL RESULT IN SUBSTANTIAL DELAYS IN THE DISTRIBUTIONS OF ANY RECOVERIES. THEREFORE, THE DEBTORS RECOMMEND THAT ALL HOLDERS OF IMPAIRED CLAIMS ENTITLED TO VOTE ON THE PLAN VOTE TO ACCEPT THE PLAN.

C. Dismissal of the Chapter 11 Cases

Dismissal of the Chapter 11 Cases would have the effect of restoring (or attempting to restore) all parties to the status quo ante. Upon dismissal of the Chapter 11 Cases, the Debtors would lose the protection of the Bankruptcy Code, resulting in a race to the courthouse by creditors seeking to maximize the value of their individual claims. Therefore, the Debtors believe that dismissal of the Chapter 11 Cases is not a viable alternative to the Plan.

IX. CONCLUSION AND RECOMMENDATION

The Debtors believe that confirmation and implementation of the Plan is preferable to any of the alternatives described above because it is the only opportunity for Holders in certain classes to maximize their recoveries in these cases.

THE COMMITTEE SUPPORTS THE PLAN AND RECOMMENDS THAT ALL PARTIES ENTITLED TO VOTE CAST A BALLOT TO ACCEPT THE PLAN.

Consequently, the Debtors urge all Holders of Claims entitled to vote to accept the Plan and to evidence their acceptance by duly completing and returning their Ballots so that they will be received on or before December 3, 2015 at 4:00 p.m. prevailing Eastern Time.

3980635v10


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Dated: October 26, 2015 O.W. BUNKER HOLDING NORTH AMERICA INC., O.W. BUNKER USA INC., AND O.W. BUNKER NORTH AMERICA INC. By: ______________________________________ Name: Hans Staal Jonassen Title: Authorized Officer Counsel: Michael R. Enright (ct10286) Patrick M. Birney (ct19875) ROBINSON & COLE LLP 280 Trumbull Street Hartford, CT 06103 Telephone: (860) 275-8290 Facsimile: (860) 275-8299 [email protected] [email protected] - and - Natalie D. Ramsey (admitted pro hac vice) Richard G. Placey (admitted pro hac vice) Davis Lee Wright (admitted pro hac vice) MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 123 South Broad Street Philadelphia, PA 19109 Telephone: (215) 772-1500 Facsimile: (215) 772-7620 [email protected] [email protected] [email protected] Counsel for the Debtors and Debtors in Possession


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