2021-02-11_GENERAL DOCUMENTS - C1980004

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Case 1:20-bk-12043 Doc 604-1 Filed 02/11/21 Entered 02/11/21 10:48:19 Desc Exhibit A - Liquidating Trust Agreement Page 15 of 22 ARTICLE IX MISCELLANEOUS PROVISIONS Section 9.1 Definitions. Unless the context otherwise requires, a capitalized term used but not defined herein shall have the meaning given to such term in the Plan. Section 9.2 Descriptive Headings. The headings contained in this Liquidating Trust Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Liquidating Trust Agreement. Section 9.3 Amendment. After the Effective Date, this Liquidating Trust Agreement may not be amended except by an instrument executed by the Liquidating Trustee with the approval of(a) the Liquidating Trust Board, (b) the Holders of the Class 3 and Class 4 Claims until the Lender Settlement Contribution Amount is paid in full, and (c) the Bankruptcy Court. Section 9.4 Governing Law. This Liquidating Trust Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without regard to the rules of conflict of laws of the State of Ohio or any other jurisdiction. Section 9.5 Counterparts; Effectiveness. This Liquidating Trust Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. This Liquidating Trust Agreement shall become effective when each party hereto shall have received counterparts thereof signed by all the other parties hereto. Section 9.6 Severability, Validity. If any provision of this Liquidating Trust Agreement or the application thereof to any person or circumstance is held invalid or unenforceable, the remainder of this Liquidating Trust Agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Liquidating Trust Agreement are agreed to be severable. Section 9.7 No Waiver by Liquidating Trustee. No failure by the Liquidating Trustee to exercise or delay in exercising any right, power or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any further exercise thereof, or of any other right, power or privilege. Section 9.8 Preservation of Privilege and Defenses. In connection with the rights, claims, and Causes of Action that constitute Liquidating Trust Assets and any objections to Disputed Claims prosecuted or resolved by the Liquidating Trustee in accordance with the Plan (including, without limitation, all defenses, counterclaims, setoffs and recoupments belonging to the Debtors), any applicable privilege or immunity of the Debtors, including, without limitation, any attorney-client privilege or work-product privilege attaching to any documents or communications (whether written or oral) shall vest in the Liquidating Trust. Section 9.9 Bond. The Liquidating Trustee (including any successor Liquidating Trustee) shall obtain a bond in an amount to be determined by the Bankruptcy Court. The cost of such bond shall be an expense of the Liquidating Trust. 15 4852-4646-2934.1