2021-01-22_GENERAL DOCUMENTS - C1980004 (3)

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Case 1 20-bk-12043 Doc 574-1 Filed 01/13/21 Entered 011131211138 01 Desc Exhibit 1- Proposed Confirmation Order Page 59 of 69 Case 1 20-bk-12043 Doc 574-1 Filed 01/13/21 Entered 01/13/21 11 38:01 Desc Exhibit 1 - Proposed Confirmation Order Page 60 of 69 (g) hear and determine any and all disputes arising in connection with the interpretation, implementation, coneummation, or enforcement of the Plan, including disputes arising under agreements, documents, or instruments executed in connection with the Plan, (h) consider any modifications of the Plan, cure any defect or omission, or reconcile any inconsistency in any order of the Bankruptcy Court, including, without limitation, the Confirmation Order, (i) issue injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Entity with the implementation, consummation, or enforcement of the Plan or the Confirmation Order, 0) enter and implement such orders as may be necessary or appropriate ifthe Confirmation Order is for any reason reversed, stayed, revoked, modified or vacated; (k) hear and determine any matters ansmg in connection with or relating to the Plan, the schedules to the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, or other agreement or document created in connection with the Plan, the schedules to the Plan, the Disclosure Statement, or the Confirmation Order, (1) enforce, interpret, and determine any disputes arising in connection with any stipulations, orders, judgments, injunctions, releases, exculpation, indemnifications, and rulings entered in connection with these Chapter 1 I Cases, (m) except as othe—w limited herein, recover all Assets, wherever located, (n) hear and detemrme matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code, (o) hear and determine such other matters as may be provided in the Confirmation Order or as may be authorized under, or not inconsistent with, provisions of the Bankruptcy Code, and (p) enter a final decree closing these Chapter I I Cases Section 10.02 Failure of the Bankruptcy Court to Exercise Jurisdiction If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter ansmg in, arising under, or related to these Chapter 11 Cases, including the matters set forth in Section 10 01 of the Plan, the provisions of this Article X shall have no effect upon and shall not control, prohibit, or limit the exercise of jurisdiction by any other court having jurisdiction with respect to such matter Case 1,20-bk-12043 Doc 574-1 Filed 01/13/21 Entered 01/13/21 11:38:01 Desc Exhibit 1- Proposed Confirmation Order Page 61 of 69 or release any holder of an Equity Interest or any other current or former officer, director, manager, or employee of the Debtors for conduct occurring prior to the Petition Date. Section 11.04 Lender Release by Holders of Claims Voting in Favor of Plan Effective as of the Effective Date, in exchange for good and valuable eonsideratiea, including the obligations of the Debtors under the Plan and the contributions of the Released Parties in the Chapter 11 Cases, including pursuant to the Settlement Agreement and the Lender Settlement Order, to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, on and after the Effective Date, any Person voting in favor of the Plan (A "Releasing Party") shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released the Released Parties from any and all claims, debts, obligations, promises, controversies, actions, suits, causes of action, damages, remedies, expenses, demands and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, in law, equity, or otherwise, that such entity would have been legally entitled to assert (whether individually or collectively), based on or in any way relating to, or in any manner arising from, in whole or in part, (A) the Committee Initial Challenges, (B) the Prepetition Debt and any payments received by the Prepetition Secured Parties in respect thereof, (C) the DIP Facility and any payments received by the DIP Secured Parties in respect thereof, (D) the Debtors or their operations, (E) the Chapter 11 Cases, (F) the Debtors' restructuring, (G) any investment in the Debtors or the purchase, sale, transfer, or rescission of the purchase or sale of any security, asset, right, or interest of the Debtors, (H) any action or omission with respect to any indebtedness under which the Debtors are or were a borrower or guarantor, or any equity investment in the Debtors, including without limitation the Prepetition Debt and the DIP Facility and any claims or causes of action (including lender liability claims) in respect thereof, (1) the subject matter of, or the transactions or events giving rise to, any claim or interest restructured in the Chapter 11 Cases, (J) the formulation, preparation, dissemination, or negotiation of the (i) APA and any other materials executed or entered into in connection with the Sale Closing, (it) the Prepetition Credit Documents, (iii) the DIP Documents, (iv) the Settlement Agreement, and (v) any contract, instrument, release, or other agreement or document (including any legal opinion requested by any entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the restructuring) created or entered into in connection with the Sale Closing, the DIP Facility, the Prepetition Debt, and the Chapter II Cases, (K) any action taken in furtherance of the Sale Closing, and (L) any Challenge; providedfarther, that the DIP Secured Parties and the Prepetition Secured Parties are also released from any and all claims, debts, obligations, promises, controversies, actions, suits, causes of action, damages, remedies, expenses, demands and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, in law, equity, or otherwise, that such entity would have been legally entitled to assert (whether individually or collectively), based on or in any way relating to, or in any manner arising from, in whole or in part, the APA, the Sale Transaction, the Auction, or otherwise related in any way to the sale of the Debtors' assets or assignment of the Assigned Contracts to the Stalking Horse Bidder, except for rights ARTICLE XI: SETTLEMENT, RELEASES, INJUNCTIONS AND EXCULPATION$ Section 11.01 Debtors Will Not Receive Discharge Notwithstanding anything to the contrary herein, the Debtors shall not receive a discharge under the Plan. Section 11.02 No Releases by Debtors SUBJECT TO SECTION 11.03 AND 11.04 BELOW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE DEBTORS SHALL NOT RELEASE: (A) ANY AND ALL CAUSES OF ACTION AND ANY OTHER DEBTS, OBLIGATIONS, RIGHTS, SUITS, DAMAGES, ACTIONS, DERIVATIVE CLAIMS, REMEDIES, AND LIABILITIES WHATSOEVER, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, EXISTING AS OF THE EFFECTIVE DATE, IN LAW, AT EQUITY, OR OTHERWISE, WHETHER FOR TORT, CONTRACT, VIOLATIONS OF FEDERAL OR STATE SECURITIES LAWS, OR OTHERWISE, BASED IN WHOLE OR IN PART UPON ANY ACT OR OMISSION, TRANSACTION, OR OTHER OCCURRENCE OR CIRCUMSTANCES EXISTING OR TAKING PLACE PRIOR TO OR ON THE EFFECTIVE DATE; OR (B) ANY AND ALL AVOIDANCE ACTIONS AGAINST ANY PERSON PROVIDED THAT NOTHING HEREIN SHALL LIMIT THE RELEASES PROVIDED BY THE DEBTORS UNDER THE DIP ORDER THE SALE ORDER, THE SETTLEMENT AGREEMENT OR THE LENDER SETTLEMENT ORDER. Section 11.03 Exculpation and Limitation of Liability Notwithstanding anything to the contrary herein, the Debtors, its Professionals retained in the Chapter 11 Cases, its officers, directors, managers, or employees existing as of the Petition Date, the Creditors' Committee, individual members of the Creditors' Committee, and Professionals for the Creditors' Committee, and the Released Parties shall not have or incur any liability to any holder of a Claim or Equity Interest for any act, event, or omission in connection with, or arising out of, the Chapter 11 Cases, formulating, negotiating, soliciting, preparing, disseminating, confirming, or implementing the Plan, the Sale Agreements, the Sale Transaction, or the Settlement Agreement, consummating the Plan, the Sale Agreements, the Sale Transaction, or the Settlement Agreement, or the administration of the Plan or the property to be distributed under the Plau, unless it shag be determined in a Final Order to have constituted willful misconduct or gross negligence; provided, however, that for avoidance of doubt, nothing herein shall provide any exculpation Case 1 20-bk-12043 Doc 574-1 Filed 01/13/21 Entered 01/13/2111.38.01 Desc Exhibit 1- Proposed Confirmation Order Page 62 of 69 and claims of the Debtors under the APA, agreements related to the APA, or the Sale Order, as specified in the Lender Settlement Order. Entry of the Confirmation Order shall constitute the Bankruptcy Court's approval of this release, which includes by reference each of the related provisions and definitions contained in this Phan, and fmMer, shall constitute the Bankruptcy Court's finding that each release is: (1) in exchange for the good and valuable consideration provided by the Released Parties, (2) a good -faith settlement and compromise of such Claims; (3) in the best interests of the Debtors and a6 Holders of Claims and Interests: (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a bar to the Releasing Parties from asserting any claim, Cause of Action, or liability related thereto, of any kind whatsoever, against any of the Released Parties or their property. Section 11.05 Lender Release by Debtors and Estates The releases of the Released Parties by the Debtors and the Estates approved by the DIP Order, the Sale Order, the Settlement Agreement and the Lender Settlement Order are hereby incorporated into this Plan and approved in all respects Section 11.06 Injunction EXCEPT AS OTHERWISE PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES WHO HAVE HELD, HOLD, OR MAY HOLD CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES THAT: (1) ARE SUBJECT TO COMPROMISE AND SETTLEMENT PURSUANT TO THE TERMS OF THE PLAN; (2) ARE SUBJECT TO EXCULPATION PURSUANT TO SECTION 11.03 HEREOF (BUT ONLY TO THE EXTENT OF THE EXCULPATION PROVIDED IN SECTION 11.03) AND THE RELEASE PURSUANT TO SECTIONS 11.04 AND 11.05 HEREOF (BUT ONLY TO THE EXTENT OF THE RELEASES PROVIDED IN SECTION 11.04 AND 11.05); OR (3) ARE OTHERWISE STAYED OR TERMINATED PURSUANT TO THE TERMS OF THE PLAN, ARE PERMANENTLY ENJOINED AND PRECLUDED, FROM AND AFTER THE EFFECTIVE DATE, FROM: (A) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND, INCLUDING ON ACCOUNT OF ANY CLAIMS, EQUITY INTERESTS, CAUSES OF ACTIONS, OR LIABILITIES THAT HAVE BEEN COMPROMISED OR SETTLED AGAINST THE DEBTORS, THE LIQUIDATING TRUST, THE RELEASED PARTIES, OR ANY ENTITY SO EXCULPATED (OR THE PROPERTY OR ESTATE OF ANY ENTITY, DIRECTLY OR INDIRECTLY, SO EXCULPATED, INCLUDING THE LIQUIDATING TRUST AND THE LIQUIDATING TRUST ASSETS) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (B) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING BY ANY MANNER OR MEANS ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST THE DEBTORS, THE LIQUIDATING TRUST, THE RELEASED PARTIES, OR ANY ENTITY SO EXCULPATED (OR THE PROPERTY OR ESTATE OF THE DEBTORS OR ANY ENTITY SO EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR