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

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Case 120-bk-12043 Doc 574-1 Filed 01/13/21 Entered 01/13/21 11:38 01 Desc Exhibit 1 - Proposed Confirmation Order Page 63 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 64 of 69 WITH RESPECT TO ANY SUCH SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (C) CREATING, PERFECTING, OR ENFORCING ANY LIEN, CLAIM, OR ENCUMBRANCE OF ANY KIND 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 WITH RESPECT TO ANY SUCH SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES; (D) ASSERTING ANY RIGHT OF SETOFF (UNLESS PREVIOUSLY ASSERTED) OR SUBROGATION OF ANY KIND AGAINST ANY OBLIGATION DUE FROM THE DEBTORS, 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 WITH RESPECT TO ANY SUCH SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES UNLESS SUCH ENTITY HAS TIMELY ASSERTED SUCH SETOFF RIGHT PRIOR TO CONFIRMATION IN A DOCUMENT FILED WITH THE BANKRUPTCY COURT EXPLICITLY PRESERVING SUCH SETOFF OR SUBROGATION, AND NOTWITHSTANDING AN INDICATION OF A CLAIM OR INTEREST OR OTHERWISE THAT SUCH ENTITY ASSERTS, HAS, OR INTENDS TO PRESERVE ANY RIGHT OF SETOFF OR SUBROGATION PURSUANT TO APPLICABLE LAW OR OTHERWISE; AND (E) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND AGAINST THE DEBTORS, THE LIQUIDATING TRUST, THE RELEASED PARTIES, OR ANY ENTITY SO EXCULPATED (OR THE PROPERTY OR ESTATE OF THE DEBTORS, THE LIQUIDATING TRUST, OR ANY ENTITY SO EXCULPATED) ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, EQUITY INTERESTS, CAUSES OF ACTION, OR LIABILITIES SETTLED, OR COMPROMISED PURSUANT TO THE PLAN; PROVIDED THAT NOTHING CONTAINED IN THE PLAN SHALL PRECLUDE AN ENTITY FROM OBTAINING BENEFITS DIRECTLY AND EXPRESSLY PROVIDED TO SUCH ENTITY PURSUANT TO THE TERMS OF THE PLAN; PROVIDED, FURTHER, THAT NOTHING CONTAINED IN THE PLAN SHALL BE CONSTRUED TO PREVENT ANY ENTITY FROM DEFENDING AGAINST CLAIMS OBJECTIONS OR COLLECTION ACTIONS WHETHER BY ASSERTING A RIGHT OF SETOFF OR OTHERWISE TO THE EXTENT PERMITTED BY LAW. Section 11.07 Setoffs Except as otherwise provided in the Plan, prior to the Effective Date, the Debtors, and on and after the Effective Date, the Liquidating Trustee, pursuant to the Bankruptcy Code (including section 553 of the Bankruptcy Code), applicable non -bankruptcy law, or as may be agreed to by the Holder of a Claim or Equity Interest, may set off against any Allowed Claim or Equity Interest on account of any Proof of Claim or other pleading Filed with respect thereto prior to the Confirmation Heating and the Distributions to be made pursuant to the Plan on account of such Allowed Claim or Equity Interest (before any Distribution is made on account of such Allowed Claim or Equity Interest), any claims, rights, and Causes of Action of any nature that the Debtors' 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 65 of 69 Section 12.02 Notice of Occurrence of the Effective Date The Debtors or Liquidating Trustee shall file a notice of the occurrence of the Effective Date within five (5) Business Days thereafter, provide d, however, that failure to timely File such notice shall not affect the occurrence of the Effective Date. Section 12.03 Consequences of Non -Occurrence of Effective Date If the Confirmation Order is vacated prior to the Effective Date, (a) the Plan shall be null and void in all respects, and (b) any settlement of Claims or Equity Interest provided for hereby shall be null and void without further order of the Bankruptcy Court, Provided, however, that for avoidance of doubt, the Settlement Agreement and the Lender Settlement Order shall not be impacted Section 12.04 Substantial Consummation Substantial consummation of the Plan shall be deemed to occur on the Effective Date ARTICLE XIII: MISCELLANEOUS PROVISIONS Section 13.01 Liquidating Trustee Professionals The Liquidating Trustee may, without application to or approval by the Bankruptcy Court, retain professionals and pay reasonable professional fees and expenses in connection with services rendered to them after the Effective Date Section 13.02 Modifications and Amendments Subject to the limitations contained in the Plan, the Plan Proponents reserve the tight to modify the Plan as to material terms and seek Confirmation consistent with the Bankruptcy Code and, as appropnate, not resolmcit votes on such modified Plan, provided, however, that any provision of the Plan impacting or affecting the DIP Lenders or the Prepehtom Lenders other than in accordance with the terms of the Settlement Agreement shall be in form and substance acceptable to the DIP Lenders or Prepetitmon Lenders, as applicable Subject to certain restrictions and requirement set forth in section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 and those restrictions on modifications set forth in the Plan, the Plan Proponent expressly reserve their tights to alter, amend, or modify materially the Plan with respect to the Debtors, one or more times, after Confirmation, but only until the Effective Date and, to the extent necessary, may initiate proceedings in the Bankruptcy Court to so alter, amend, or modify the Plan, or remedy any defect or omission, or reconcile any inconsistencies in the Plan, the Disclosure Statement, or the Confirmation Order, in such matters as may be necessary to carry out the purposes and intent of the Plan Any such modification or supplement shall be considered a modification of the Plan and shall be made in accordance with Article XHI hereof After the Effective Date, the Liquidating Trustee can modify the Plan only in accordance with section 1127 of the Bankruptcy Code and applicable law Estates may hold against the Holder of such Allowed Claim or Equity Interest, to the extent such claims, rights, or Causes of Action against such Holder have not been otherwise compromised or settled on or pnor to the Effective Date (whether pursuant to the Plan or otherwise), including any tights under section 502(d) of the Bankruptcy Code, provided , however, that neither the failure to effect such a setoff nor the allowance of any Claim or Equity Interest pursuant to the Plan shall constitute a waiver or release by the Debtors or the Liquidating Trustee, as applicable, of any such claims, nights, and Causes of Action that the Debtors' Estates may possess against such Holder, provided, further, that the Holder of a Claim or Equity Interest may contest such set off by the Debtors or the Liquidating Trustee, as applicable, in the Bankruptcy Court or any other court of competent junsdiction, In no event shall any Holder of Claims or Equity Interest be entitled to set off any Claim or Equity Interest against any claim, tight, or Cause of Action of the Debtors' Estates unless such Holder has timely Filed a Proof of Claim with the Bankruptcy Court preserving such setoff, provided that nothing in the Plan shall prejudice or be deemed to have prejudiced the Debtors' or the Liquidating Trustee's right to assert that any Holders setoff rights were required to have been asserted by motion or pleading filed with the Bankruptcy Court prior to the Effective Date Section 11.08 Term of Injunctions or Stays Unless otherwise provided herein or in the Confirmation Order, all injunctions or stays provided for in these Chapter 11 Cases under sechons 105 or 362 of the Bankruptcy Code or otherwise, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation Order), shall remain in full force and effect until the Effective Date ARTICLE XIL•CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN Section 12.01 Conditions to Effective Date la) Conditions Precedent to Effective Date of the Plan The Plan shall not become effective unless and until the Effective Date occurs The Effective Date is subject to the following conditions precedent (i) the Confirmation Order shall become a Final Order, (it) all document useful and necessary to effectuating the Plan are executed and delivered to the parties hereto and all conditions to the effectiveness of such document have been met, and (tit) the Debtors have received all authonzations, consents, approvals, rulings, opinions, and documents that arc necessary to implement the Plan (b) Waiver of Conditions The conditions precedent to the Effective Date may be waived, in whole or in part, by the Debtors, with the consent of the Creditors' Committee, at any time, without notice, and without an order from the Bankruptcy Court or any other affirmative action other than proceeding to consummate the Plan The failure of the Debtors to exercise any of foregoing tights shall not he deemed a waiver of any other rights and each tight shall be deemed an ongoing tight that may be asserted at any time Case 1.20-bk-12043 Doc 574-1 Filed 01/13/21 Entered OV13/21 11.38 01 Desc Exhibit 1- Proposed Confirmation Order Page 66 of 69 Section 13.03 Continuing Exclusivity and Solicitation Period Subject to further order of the Bankruptcy Court, until the Effective Date, the Debtors and the Creditors' Committee shall, pursuant to section 1121 of the Bankruptcy Code, retain the exclusive Tight to amend the Plan and to solicit acceptances thereof Section 13.04 Severability of Plan Provisions If, pnor to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Plan Proponents, shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan shall remain in full force and effect and shallot no way be affected, impaired, or invalidated by such holding, alteration, or interpretation The Continuation Order shall constitute a judicial detennmation and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to it terms Section 13.05 Successors and Assigns and Binding Effect The right, benefit, and obligations ofany Entity named or referred to in the Plan shall be binding on, and shall mitre to the benefit of, any hen, executor, administrator, personal representative, successor, or assign of such Entity, including, but not limited to, the Liquidating Trustee and all other parties-m-interest in these Chapter I I Cases such as Holders of Claims and Equity Interests Section 13.06 Revocation, Withdrawal or Non -Consummation The Plan Proponents reserve the tight to revoke or withdraw the Plan at any time pnor to the Confirmation Date and to File subsequent plans of reorganization If the Plan Proponent revoke or withdraw the Plan prior to the Confirmation Date, or if Confirmation or the Effective Date does not occur, then (a) the Plan shall be null and void in all respect, (b) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain any Claim or Class of Claims), assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan, and any document or agreement executed pursuant to the Plan shall be deemed null and void, and (c) nothing contained in the Plan, and no acts taken in preparation for consummation of the Plan, shall (i) constitute or be deemed to constitute a waiver or release of (x) any Claims against, or any Equity Interests in, the Debtors, or (y) any Avoidance Action or other Causes of Action by or against the Debtors, the Creditors' Committee or any Entity, (it) prejudice many manner the tight of the Debtors, the Creditors' Committee, or any Entity many further proceedings involving the Debtors, or (m) constitute an admission of any sort by the Debtors, the Creditors' Committee, or any other Entity, provided, however, that the Settlement Agreement and the Lender Settlement Order shall not be impacted