2021-01-22_GENERAL DOCUMENTS - C2010088 (3)

Home Browse Search

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 47 of 69 Case 120-bk-12043 Doc 574-1 Filed 01/13/21 Entered 01/131211138 01 Desc Exhibit 1- Proposed Confirmation Order Page 48 of 69 id) Making Distributions in accordance with the terms of the Plan and the Liquidating Trust Agreement, (e) Preparing and filing post -Effective Date operating reports, (fi Filing appropriate tax returns in the exercise of its fiduciary obligations, (g) Retaining such professionals as am necessary and appropriate in furtherance of its fiduciary obligations, and (h) Taking such actions as are necessary and reasonable to carry out the purposes of the Liquidating Trust To the extent necessary or appropriate, the Liquidating Trustee shall be deemed to be a judicial substitute for Causes of Action assigned to the Liquidating Trust, consistent with section 1123(b)(3)(B) of the Bankruptcy Code Section 5.07 Costs and Expenses of the Liquidating Trust To the extent the Liquidating Trust Assets are insufficient to pay the expenses of the Liquidating Trust and the Liquidating Trustee, then such expenses shall be reimbursed from the first dollars out of any proceeds that come into the Liquidating Trust before any Distribution to the beneficiaries of the Liquidating Trust, provided, however, the Liquidating Trust expenses shall be subject to the procedures and review set forth in the Liquidating Trust Agreement Section 5.08 Bonding of Liquidating Trustee The Liquidating Trustee shall be obligated to obtain a bond in an amount to be determined by the Court, in which case the expense incurred by such bonding shall be paid by the Liquidating Trust Section 5.09 Fiduciary Duties of the Liquidating Trustee Pursuant to the Plan and the Liquidating Trust Agreement, the Liquidating Trustee shall act in a fiduciary capacity on behalf of the interests of the beneficiaries of the Liquidating Trust Section 5.10 Liability, Indemnification of the Liquidating Trust Protected Parties The Liquidating Trust Protected Parties shall not be liable for any act or omission of any other Liquidating Trust Protected Parties or the member, designee, agent, ormpresentative of such Liquidating Trust Protected Parties, nor shall such Liquidating Trust Protected Pames be liable for any act or omission taken or not taken in their capacity as Liquidating Trust Parties other than for specific acts or omissions resulting from such Liquidating Trust Protected Parties' willful misconduct, gross negligence or fraud The Liquidating Trustee may, in connection with the performance of his, her, or its functions, and in his, her, or its sole and absolute discretion, consult with his, her, or its attorneys, accountants, financial advisors, and agents Notwithstanding such authority, the Liquidating Trustee shall not be under any obligation to consult with his, her, or its attorneys, accountants, financial advisors, and agents, and his, her, or its determination not to do 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 49 of 69 or members of such Debtor, or the officers and directors of such Debtor, and (it) all actions or decisions that would otherwise be made by such directors and/or managers under otherwise applicable law may be taken and made by the Liquidating Trustee Notwithstanding anything contained in this section, all Claims and Causes of Action against any director or officer of the Debtors, whether current or former, are hereby preserved On the Effective Date, all Professionals shall be deemed to have completed their services unless they are expressly retained by the Liquidating Trustee, but they shall be able to file final applications for Professional Fee Claims through the Effective Date as provided for in this Plan Section 6.03 Effectuating Documents; Further Transactions Prior to the Effective Date, the Debtors, and on and after the Effective Date, the Liquidating Trustee is authorized to and may issue, execute, deliver, file, or record such contracts, securities, instruments (including deeds, leases, assignments or other instruments of conveyance), applications for permit transfer or renewal or other regulatory authorizations, releases, and other agreements or documents and take such actions as may he necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan and any Court Order authorizing the sale or other transfer of the Debtors' assets, including, without limitation, the Sale Order, without the need for any further Bankruptcy Court Order, approvals, authorization, or consents except for those expressly required pursuant to the Plan Section 6.04 Preservation of Rights of Action Other than Causes of Action against an Entity that are expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or by a Bankruptcy Court order (including, for the avoidance of doubt, any claims or Causes of Action released pursuant to Article XI hereof, the Settlement Agreement, the Lender Settlement Order, the DIP Order, and the Sale Order), the Debtors reserve and, as of the Effective Date, assign to the Liquidating Trust, any and all Causes of Action, including without limitation any actions specifically enumerated in the Disclosure Statement On and after the Effective Date, the Liquidating Trustee may pursue such Causes of Action in accordance with the Liquidating Trust Agreement Subject in all respects to Article XI of this Plan, the Debtors shall not release any Avoidance Actions, and the Liquidating Trustee shall be authonzed and empowered to enforce any such Avoidance Actions on and after the Effective Date in accordance with the terms of the Plan and the Liquidating Trust Agreement No Entity may rely on the absence of a specific reference in the Plan or the Disclosure Statement to any Cause of Action against them as any indication that the Debtors or the Liquidating Trustee will not pursue any and all available Causes of Action against them No preclusion doctrine, including the doctrines of res 7udicata, collateral estoppel, issue preclusion, claim preclusion oudmcial, equitable, or otherwise), or lathes, shall apply to such Causes of Action upon, after, or as a consequence of the Confirmation or the occurrence of the Effective Date The Debtors reserve the Causes of Action notwithstanding the rejection of any Executory Contract or Unexpired Lease during the Chapter 11 Cases or pursuant to the Plan Except as so shall not result in the imposition of Lability on the Liquidating Trustee or the Liquidating Trust Protected Parties, unless such determination is based on willful misconduct, gross negligence or fraud The Liquidating Trust shall indemnify and hold harmless the Liquidating Trust Protected Parties from and against and in respect of all liabilities, losses, damages, claims, costs, and expenses (including, without limitation, reasonable attorney's tees, disbursements, and related expenses), which such Liquidating Trust Protected Parties may incur or to which such Liquidating Trust Protected Parties may become subject to in connection with any action, suit, proceeding, or investigation brought by or threatened against such Liquidating Trust Protected Parties ansmg out of or due to their acts or omissions or consequences of sueb acts or omissions, with respect to the implementation or administration of the Liquidating Trust or the Plan or the discharge of their duties hereunder, provide d, bowever, that such indemnification shall be limited to the Liquidating Trust Assets and provided further that no such indemnification will be made to such Liquidating Trust Protected Parties for actions or omissions as a result of their willful misconduct, gross negligence, or fraud Section 5.11 Full and Final Satisfaction Against Liquidating Trust On and after the Effective Date, the Liquidating Trust shall have no liability on account of any Claims or Equity Interests except as set forth in the Plan and in the Liquidating Trust Agreement All payments and all Distributions made by the Liquidating Trustee under the Plan shall be in exchange for all Claims or Equity Interests against the Liquidating Trust ARTICLE VI: MEANS FOR IMPLEMENTATION OF THE PLAN Section 6.01 Corporate Action Upon the Effective Date, by virtue of the solicitation of votes in favor of this Plan and entry of the Confirmation Order, all actions contemplated by the Plan (including any action to be undertaken by the Liquidating Trustee) shall be deemed authorized, approved, and, to the extent taken prior to the Effective Date, ratified without any requirement for further action by Holders of Claims or Equity Interests, the Debtors, or any other Entity or Person or further Order of the Bankruptcy Court All matters provided for in the Plan involving the corporate structure of the Debtors, and any corporate action required by the Debtors in connection therewith, shall be deemed to have occurred and shall be in effect, without any requirement of furtber achon by the Debtors or the Estates The authorizations and approvals contemplated by this Plan shall be effective notwithstanding any requirements under applicable non -bankruptcy law Section 6.02 Dissolution and Boards of the Debtors and Officers As of the Effective Date (p the existing boards of directors and/or boards of managers of the Debtors shall be dissolved without any further action required on the part of the Debtors or the Debtors' officers, directors, general partners, limited partners, shareholders, and members and any all remaining officers, managers or directors of each Debtor shall be dismissed without any further action required on the part of any such Debtor, the general partners, limited partners, shareholders 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 50 of 69 otherwise provided by the Liquidating Trust Agreement, prior to the Effective Date, the Debtors, and on and after the Effective Date, the Liquidating Trustee, shall retain and shall have, including through its authorized agents or representatives, the exclusive right, authority, and discretion to determine and to innate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate tojudgment any such Causes of Action and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court to the fullest extent permitted by section 1123 of the Bankruptcy Code and all other applicable law Section 6.05 Closing of Debtors' Cases For the avoidance of doubt, the closing of any Chapter 1 I Case shall not have any effect, in any manner, on the Causes of Achon that the Liquidating Trustee may assert in accordance with the Plan and the Liquidating Tmst Agreement The jointly administered case of Hopedale Mining, LLC (20-12043) (the "Main Case') shall remain open and subject to the provisions of this Section 6 5 All Chapter 1 I Cases, except for the Main Case, shall be deemed closed upon the Effective Date without further action or Court Order Notwithstanding anything to the contrary in the Bankruptcy Rules providing for earlier closure of the Main Case, when all Assets contributed to the Liquidating Trust in accordance with Section 5 02 above and the Liquidating Trust Agreement have been liquidated and converted into Cash (other than those assets previously abandoned by the Debtors or abandoned by the Liquidating Trust), and such Cash has been distributed in accordance with the Liquidating Trust Agreement and this Plan, the Liquidating "trustee shall seek authority from the Bankruptcy Court to close the Main Case in accordance with the Bankruptcy Code, the Bankruptcy Rules and the terms of this Plan Section 6.06 Operations of the Debtors Between the Confirmation Date and the Effective Date During the period from the Confirmation Date through and until the Effective Date, the Debtors shall continue to manage their estates as debtors in possession, subject to the oversight of the Bankruptcy Court as provided in the Bankruptcy Code, the Bankruptcy Rules, and all orders of the Bankruptcy Court that are then in full force and effect Section 6.07 Dissolution of the Creditors' Committee On the Effective Date the Creditors' Committee shall be deemed dissolved and subject to Section 11.03 of this Plan, its members shall be deemed released of their duties, responsibilities and obligations, roo vided, however, that the Creditors' Committee shall remain in existence with respect to (a) any Professional Fee Claims, and (b) any appeals of the Confirmation Order or Professional Fee Claims Section 6.08 Destruction of Books and Records The Liquidating Trustee has the right to seek authority to destroy or abandon any books and records of the Debtors constituting Liquidating Trust Assets The Liquidating Trustee, however, shall not destroy or abandon any such books and records without obtaining prior approval of the Bankruptcy Court