Notice of Approval of Disclosure Statement and Confirmation Hearing — In re KServicing (Bankr. D. Del.)

Record facts

U.S. Bankruptcy Court for the District of Delaware · No. 22-10951 · Doc. 471 · 2023-01-20 · Docket on CourtListener

Full text

UNITED STATES BANKRUPTCY COURT 
DISTRICT OF DELAWARE 
------------------------------------------------------------ x 
 
 
: 
 
In re 
: 
Chapter 11 
 
: 
 
KABBAGE, INC. d/b/a KSERVICING, et al., : 
Case No. 22-10951 (CTG) 
 
: 
 
 
: 
: 
(Jointly Administered) 
 
Debtors.1 
: 
Obj. Deadline: Feb. 21, 2023 at 4:00 p.m. (ET) 
Hearing Date: Mar. 13, 2023 at 10:00 a.m. (ET) 
------------------------------------------------------------ x 
 
NOTICE OF (I) APPROVAL OF THE DISCLOSURE  
STATEMENT OF THE DEBTORS (II) ESTABLISHMENT  
OF SOLICITATION, VOTING, AND RELATED PROCEDURES,  
(III) SCHEDULING CONFIRMATION HEARING, (IV) ESTABLISHING  
NOTICE AND OBJECTION PROCEDURES FOR CONFIRMATION OF  
PLAN, (V) APPROVAL OF SPECIAL ELECTRONIC NOTICING PROCEDURES  
(VI) APPROVAL OF DEBTORS’ PROPOSED CURE PROCEDURES FOR UNEXPIRED 
LEASES AND EXECUTORY CONTRACTS, AND (VII) GRANTING RELATED RELIEF 
 
PLEASE TAKE NOTICE THAT: 
 
1. 
Approval of Disclosure Statement.  On January 19, 2023, the United States Bankruptcy 
Court for the District of Delaware (the “Bankruptcy Court”) held a hearing (the “Disclosure Statement 
Hearing”) at which it approved the Amended Disclosure Statement for the Amended Joint Chapter 11 Plan 
of Liquidation of Kabbage, Inc. (d/b/a KServicing) and its Debtor Affiliates, filed on January 19, 2023 [D.I. 
467] (as may be amended, modified, or supplemented, the “Disclosure Statement”)2 in connection with 
the chapter 11 cases of Kabbage, Inc. d/b/a KServicing and its debtor affiliates (collectively the “Debtors”), 
and thereafter entered an order [D.I. 470] (the “Order”) with respect thereto.  The Order, among other 
things, authorizes the Debtors to solicit votes to accept or reject the Amended Joint Chapter 11 Plan of 
Liquidation of Kabbage, Inc. (d/b/a KServicing) and its Debtor Affiliates, filed on January 19, 2023 [D.I. 
466] (as may be amended, modified, or supplemented, the “Plan”). 
2. 
Confirmation 
Hearing. 
A 
hearing 
to 
consider 
confirmation 
of 
the 
Plan 
(the “Confirmation Hearing”) has been scheduled before the Honorable Craig T. Goldblatt, United States 
Bankruptcy Judge in the United States Bankruptcy Court for the District of Delaware, 824 North Market 
Street, Third Floor, Courtroom 7, Wilmington, Delaware 19801, on March 13, 2023 at 10:00 a.m. 
(Prevailing Eastern Time).  The Confirmation Hearing may be adjourned or continued from time to time 
by the Bankruptcy Court or the Debtors without further notice other than adjournments announced in open 
 
1  The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification 
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage 
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A 
LLC (8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license; 
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address 
is 925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.   
2  Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion, Disclosure 
Statement or the Plan, as applicable, or as the context otherwise requires.   
RLF1 28502518v.1 
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court or as indicated in any notice of agenda of matters scheduled for hearing filed by the Debtors with the 
Bankruptcy Court. 
3. 
Voting Record Date.  The following holders of Claims against the Debtors as of January 
19, 2023 (the “Voting Record Date”) in the Classes listed in the table below are entitled to vote on the 
Plan:   
Class 
Description 
Class 3 
Reserve Bank Claims 
Class 4 
General Unsecured Claims 
 
4. 
Voting Deadline.  All votes to accept or reject the Plan must be actually received by the 
Debtors’ voting agent, Omni Agent Solutions (“Omni”), by no later than February 21, 2023 at 5:00 p.m. 
(Prevailing Eastern Time) (the “Voting Deadline”).  Any failure to follow the voting instructions 
included with your Ballot may disqualify your Ballot and your vote.  
5. 
Parties in Interest Not Entitled to Vote.  Class 1 (Priority Non-Tax Claims), Class 2 (Other 
Secured Claims), and Class 6 (Intercompany Interests) (if so treated) are holders of unimpaired claims or 
interests and are deemed to accept the Plan. Class 5 (Intercompany Claims), Class 6 (Intercompany 
Interests) (if so treated), Class 7 (Subordinated Securities Claims), and Class 8 (KServicing Equity 
Interests) are holders of impaired claims or interests and are deemed to reject the Plan.  Holders in such 
claims and interests are not entitled to vote on the Plan, and will not receive a Ballot. In accordance with 
section 1123(a)(1) of the Bankruptcy Code, Administrative Expense Claims, Fee Claims, and Priority Tax 
Claims, have not been classified and, therefore, holders of such Claims are not entitled to vote and will not 
receive a Ballot.   
6. 
Temporary Allowance of Claim for Voting.  If you disagree with the amount set forth by 
the Debtors for your Claim in the Schedules, or if you have filed a proof of claim and disagree with either 
(i) the Debtors’ objection to your Claim and believe that you should be entitled to vote on the Plan; or 
(ii) the Debtors’ classification or request for estimation of your Claim and believe that you should be 
entitled to vote on the Plan in a different amount or Class, then you must serve, by email, on the Objection 
Notice Parties identified in paragraph 8 below and file with the Bankruptcy Court a motion (a “Rule 3018(a) 
Motion”) for an order pursuant to Rule 3018(a) of the Federal Rules of Bankruptcy Procedure (the 
“Bankruptcy Rules”) requesting temporary allowance of your Claim in a different amount or in a different 
Class for purposes of voting to accept or reject the Plan.  All Rule 3018(a) Motions must be filed on or 
before February 21, 2023 at 4:00 p.m. (Prevailing Eastern Time).  Rule 3018(a) Motions that are not 
timely filed and served in the manner set forth above shall not be considered.  Holders of Claims or Interests 
may 
contact 
Omni 
by 
(i) 
visiting 
Omni’s 
website 
for 
these 
Chapter 
11 
Cases 
at 
www.omniagentsolutions.com/kservicing (ii) writing to Kabbage, Inc. d/b/a KServicing, et al., c/o Omni 
Agent Solutions, Solicitation Team, 5955 De Soto Ave., Suite 100, Woodland Hills, CA 91367, (iii) by 
email at kservicinginquiries@omniagnt.com, or (iv) by telephone at 866-956-2138 (U.S. & Canada toll 
free) or 747-226-5953 (international) to receive an appropriate Ballot for any Claim for which a proof of 
claim has been timely filed and a Rule 3018(a) Motion has been granted.  Any objection to a Rule 3018(a) 
Motion must be filed by February 28, 2023.  Any Rule 3018(a) Motion and related objections shall be 
considered by the Bankruptcy Court at the Confirmation Hearing.   
7. 
Objections to Confirmation.  The deadline to object or respond to confirmation of the Plan 
is February 21, 2023 at 4:00 p.m. (Prevailing Eastern Time) (the “Plan Objection Deadline”).  
Objections and responses, if any, to confirmation of the Plan, must:  (i) be in writing; (ii) conform to the 
Bankruptcy Rules and the Local Rules; (iii) set forth the name of the objecting party and the nature and 
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amount of Claims or Interests held or asserted by the objecting party against the Debtors’ estates or 
property; (iv) provide the basis for the objection and the specific grounds therefor; and (v) be filed with the 
Bankruptcy Court. 
8. 
In addition, any objections or responses must also be served by email so that they are 
actually received by the following Objection Notice Parties no later than the Plan Objection Deadline: (a) 
the Debtors, Kabbage, Inc. d/b/a KServicing, 925B Peachtree Street NE, Suite 383, Atlanta, GA 30309, 
Attn: Holly Loiseau, General Counsel (hloiseau@kservicecorp.com); (b) Counsel to Debtors, (i) Weil, 
Gotshal & Manges LLP, Attn: Ray C. Schrock (ray.schrock@weil.com), Candace M. Arthur 
(candace.arthur@weil.com), Natasha Hwangpo (natasha.hwangpo@weil.com), and Chase Bentley 
(chase.bentley@weil.com) and (ii) Richards, Layton & Finger, P.A., Attn: Daniel J DeFranceschi 
(defranceschi@rlf.com), Amanda R. Steele (steele@rlf.com), and Zachary I. Shapiro (shapiro@rlf.com); 
(c) the Office of the United States Trustee for the District of Delaware, 844 King Street, Suite 2207, 
Wilmington, DE 19801, Attn: Richard Schepacarter (richard.schepacarter@usdoj.gov) and Rosa Sierra-
Fox (rosa.sierra-fox@usdoj.gov); and (d) counsel to any official committee appointed in these Chapter 11 
Cases.  
9. 
IF ANY OBJECTION TO CONFIRMATION OF THE PLAN IS NOT FILED AND 
SERVED STRICTLY AS PRESCRIBED HEREIN, THE OBJECTING PARTY MAY BE BARRED 
FROM OBJECTING TO CONFIRMATION OF THE PLAN AND MAY NOT BE HEARD AT THE 
CONFIRMATION HEARING.    
10. 
Additional Information.  Any party in interest wishing to obtain a copy of the Disclosure 
Statement and the Plan should contact Omni Agent Solutions, the Debtors’ solicitation agent, (i) in writing 
at Kabbage, Inc. d/b/a KServicing, et al., c/o Omni Agent Solutions, Solicitation Team, 5955 De Soto Ave., 
Suite 100, Woodland Hills, CA 91367, (ii) by email at kservicinginquiries@omniagnt.com, or (iii) by 
telephone at 866-956-2138 (U.S. & Canada toll free) or 747-226-5953 (international).  Interested parties 
may 
also 
review 
the 
Disclosure 
Statement 
and 
the 
Plan 
free 
of 
charge 
at 
www.omniagentsolutions.com/kservicing.  In addition, the Disclosure Statement and Plan are on file with 
the Bankruptcy Court and may be reviewed for a fee by accessing the Bankruptcy Court’s website: 
www.deb.uscourts.gov.  Note that a PACER password and login are needed to access documents on the 
Bankruptcy Court’s website.  A PACER password can be obtained at www.pacer.psc.uscourts.gov.   
Notice Regarding Certain Release, Exculpation, and Injunction Provisions in Plan 
11. 
Please be advised that Article X of the Plan contains certain release, exculpation, and 
injunction provisions, including those set forth below.  YOU ARE ADVISED TO CAREFULLY 
REVIEW AND CONSIDER THE PLAN, INCLUDING THE INJUNCTION, RELEASE, AND 
EXCULPATION PROVISIONS, AS YOUR RIGHTS MAY BE AFFECTED. 
Section 10.3 of the Plan:  Plan Injunction 
(a) 
Upon entry of the Confirmation Order, all holders of Claims and Interests 
and other parties in interest, along with their respective present or former employees, agents, officers, 
directors, principals, and affiliates, shall be enjoined from taking any actions to interfere with the 
implementation or consummation of the Plan in relation to any Claim extinguished, discharged, or 
released pursuant to the Plan. 
(b) 
Except as expressly provided in the Plan, the Definitive Documents, the 
Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors 
and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may 
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hold Claims against or Interests in the Debtors (whether proof of such Claims or Interests has been 
filed or not and whether or not such Entities vote in favor of, against or abstain from voting on the 
Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in 
interest, along with their respective present or former employees, agents, officers, directors, 
principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with 
respect to any Claims, Interests, and Causes of Action that will be or are treated by the Plan from (i) 
commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or 
other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral, 
administrative or other forum) against or affecting the Debtors, the Wind Down Estates, or the Wind 
Down Officer, as applicable, or the property of any of the Debtors, the Wind Down Estates, or the 
Wind Down Officer, as applicable; (ii) enforcing, levying, attaching (including, without limitation, 
any prejudgment attachment), collecting, or otherwise recovering by any manner or means, whether 
directly or indirectly, any judgment, award, decree, or order against the Debtors, the Wind Down 
Estates, or the Wind Down Officer; or the property of any of the Debtors, or the Wind Down Estates, 
as applicable; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, 
any encumbrance of any kind against the Debtors, the Wind Down Estates, or the property of any of 
the Debtors, the Wind Down Estates, or the Wind Down Officer, as applicable; (iv) asserting any 
right of setoff, directly or indirectly, against any obligation due from the Debtors, or the Wind Down 
Estates, as applicable, or against property or interests in property of any of the Debtors, or the Wind 
Down Estates, except as contemplated or Allowed by the Plan; and (v) acting or proceeding in any 
manner, in any place whatsoever, that does not conform to or comply with the provisions of the Plan. 
(c) 
By accepting distributions pursuant to the Plan, each holder of an Allowed 
Claim or Interest extinguished, discharged, or released pursuant to the Plan will be deemed to have 
affirmatively and specifically consented to be bound by the Plan, including, without limitation, the 
injunctions set forth in this Section 10.3. 
(d) 
The injunctions in this Section 10.3 shall extend to any successors of the 
Debtors, or the Wind Down Estates, as applicable, and their respective property and interests in 
property. 
(e) 
Notwithstanding the foregoing, nothing in this Section 10.3 shall enjoin the 
assertion of a defensive right of recoupment.  
(f) 
Nothing in the Plan or Confirmation Order shall (1) enjoin, release, impair or 
otherwise preclude the United States (i) from pursuing any criminal action or any police or regulatory 
action, (ii) from pursuing any liability to the United States that is not a Claim, (iii) from exercising 
any rights of setoff or recoupment subsequent to confirmation of the Plan or any order granting 
substantive consolidation, and such rights are preserved, and (iv) from pursuing any claim of the 
United States arising on or after the Confirmation Date; and (2) grant the Debtors a discharge 
pursuant to section 1141(d) of the Bankruptcy Code.  
Section 10.5 of the Plan:  Releases by Debtors 
As of the Effective Date, the Debtors, and each of their respective Affiliates, on behalf of 
themselves and their respective Estates, including any successor to the Debtors or any Estate 
representative appointed or selected pursuant to section 1123(b)(3) of the Bankruptcy Code, 
including the Wind Down Estate, shall be deemed to have conclusively, absolutely, unconditionally, 
irrevocably, and forever released, and waived each Released Party from any and all claims, interests, 
obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever (including 
any derivative claims asserted or that may be asserted on behalf of any of the Debtors or their 
Estates), whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, 
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equity, or otherwise, based on or relating to, or in any manner arising from, in whole or in part, the 
Debtors, the Chapter 11 Cases, the Plan (including the Plan Supplement), the Disclosure Statement, 
the restructuring of Claims or Interests in the Chapter 11 Cases, the formulation, preparation, 
dissemination, negotiation of any of the foregoing or any contract, instrument, release, or other 
agreement or document created or entered into in connection with any of the foregoing, the pursuit 
of confirmation of the Plan, the solicitation of votes on the Plan, the pursuit of consummation of the 
Effective Date, the administration and implementation of the Plan, including the issuance or 
distribution of securities pursuant to the Plan, the subject matter of or the transactions or events 
giving rise to any Claim or Interest that is treated in the Plan, or the distribution of property under 
the Plan or any other related agreement, or upon any other act or omission, transaction, agreement, 
event, or other occurrence taking place on or before the Effective Date related or relating to the 
foregoing, except for Causes of Action arising from an act or omission of a Released Party that is 
judicially determined in a Final Order to have constituted actual fraud, gross negligence, criminal 
misconduct or willful misconduct.  The releases set forth in this paragraph shall not extend to any 
Claim or Cause of Action against any Debtor or Affiliate arising out of the American Express 
Transaction or the distribution of any consideration or value received on account of the American 
Express Transaction. Notwithstanding anything to the contrary in the foregoing, (i) the releases set 
forth above shall not be construed as releasing any post-Effective Date obligations of any party or 
entity under the Plan, or any document, instrument, or agreement (including those set forth in the 
Plan Supplement) executed to implement the Plan and (ii) the releases by the Debtors set forth above 
shall not impair any Estate Causes of Action against a non-Released Party. 
Section 10.6 of the Plan:  Releases by Holders of Claims and Interests 
As of the Effective Date, except (a) for the right to enforce the Plan or (b) as otherwise 
expressly provided in the Plan or in the Confirmation Order, to the fullest extent permissible under 
applicable law, as such law may be extended or integrated after the date upon which the Bankruptcy 
Court enters the Confirmation Order, on or after the Effective Date, each Released Party shall be 
deemed expressly, conclusively, absolutely, unconditionally, irrevocably and forever, released, and 
waived by each of the Releasing Parties from any and all claims, interests, obligations, rights, suits, 
damages, Causes of Action, remedies, and liabilities whatsoever (including any derivative claims 
asserted or that may be asserted on behalf of any of the Debtors or their Estates), whether known or 
unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, based 
on or relating to, or in any manner arising from, in whole or in part, the Debtors, the Chapter 11 
Cases, the Plan (including the Plan Supplement), the Disclosure Statement, the restructuring of 
Claims or Interests in the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation 
of any of the foregoing or any contract, instrument, release, or other agreement or document created 
or entered into in connection with any of the foregoing, the pursuit of confirmation of the Plan, the 
solicitation of votes on the Plan, the pursuit of consummation of the Effective Date, the administration 
and implementation of the Plan, including the issuance or distribution of securities pursuant to the 
Plan, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is 
treated in the Plan, or the distribution of property under the Plan or any other related agreement, or 
upon any other act or omission, transaction, agreement, event, or other occurrence taking place on 
or before the Effective Date related or relating to the foregoing, except for Causes of Action arising 
from an act or omission of a Released Party that is judicially determined in a Final Order to have 
constituted actual fraud, gross negligence, criminal misconduct or willful misconduct.  
Notwithstanding anything to the contrary in the foregoing, the releases set forth above shall not be 
construed as releasing any post-Effective Date obligations of any party or entity under the Plan, or 
any document, instrument, or agreement (including those set forth in the Plan Supplement) executed 
to implement the Plan. 
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PLEASE BE ADVISED THAT IF YOUR CLAIM IS (I) UNIMPAIRED UNDER THE PLAN AND 
YOU ARE DEEMED TO ACCEPT THE PLAN, (II) IMPAIRED UNDER THE PLAN AND 
DEEMED TO REJECT THE PLAN, OR (III) UNCLASSFIED UNDER THE PLAN, YOU WILL 
BE DEEMED TO HAVE GRANTED  THE RELEASES CONTAINED IN SECTION 10.6 OF 
THE PLAN UNLESS YOU TIMELY OBJECT TO SUCH RELEASES BY THE PLAN 
OBJECTION DEADLINE IN ACCORDANCE WITH PARAGRAPH 7 OF THIS NOTICE. 
Section 10.7 of the Plan:  Exculpation 
To the maximum extent permitted by applicable law, no Exculpated Party shall have or incur 
liability for, and each Exculpated Party is hereby released and exculpated from any and all Claims, 
Interests, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, 
arising between the Commencement Date and the Effective Date, whether known or unknown, 
foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, based on or 
relating to, or in any manner arising from, in whole or in part, the Debtors, the Chapter 11 Cases, 
the Plan (including the Plan Supplement), the Disclosure Statement, the restructuring of Claims or 
Interests in the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation of any of 
the foregoing or any contract, instrument, release, or other agreement or document created or 
entered into in connection with any of the foregoing, the pursuit of confirmation of the Plan, the 
solicitation of votes on the Plan, the pursuit of consummation of the Effective Date, the administration 
and implementation of the Plan, including the issuance or distribution of securities pursuant to the 
Plan, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is 
treated in the Plan, or the distribution of property under the Plan or any other related agreement, 
except for Claims or Causes of Action arising from an act or omission that is judicially determined 
in a Final Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all 
respects, such Exculpated Parties shall be entitled to reasonably rely upon the advice of counsel with 
respect to their duties and responsibilities. 
To the extent section 1125(e) of the Bankruptcy Code applies, the Exculpated Parties have, 
and upon completion of the Plan, shall be deemed to have, participated in good faith and in 
compliance with the applicable laws with regard to the solicitation of, and distribution of 
consideration pursuant to, the Plan and, therefore, are not, and on account of such distributions shall 
not be, liable at any time for the violation of any applicable law, rule, or regulation governing the 
solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan.  
This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, 
exculpations, and any other applicable laws, rules, or regulations protecting such Exculpated Parties 
from liability.  Notwithstanding anything to the contrary in the foregoing, the exculpation set forth 
above shall not be construed as exculpating any party or entity from its post-Effective Date 
obligations under the Plan, or any document, instrument, or agreement (including those set forth in 
the Plan Supplement) executed to implement the Plan. 
Section 10.8 of the Plan:  Waiver of Statutory Limitation on Releases. 
EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE PLAN 
(INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT 
ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH 
THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, 
WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH 
THE PARTY RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT 
IN DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE 
OF SUCH UNKNOWN LOSSES OR CLAIMS.  WITHOUT LIMITING THE GENERALITY OF 
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THE FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL 
RIGHTS CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES 
THAT A RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT 
KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE 
RELEASE, WHICH IF KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS 
SETTLEMENT WITH THE RELEASED PARTY, INCLUDING THE PROVISIONS OF 
CALIFORNIA CIVIL CODE SECTION 1542. THE RELEASES CONTAINED IN SECTION 10 
OF THE PLAN ARE EFFECTIVE REGARDLESS OF WHETHER THOSE RELEASED 
MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED OR UNSUSPECTED, 
FORESEEN OR UNFORESEEN.  
Notice of Assumption of Executory Contracts and 
Unexpired Leases of Debtors and Related Procedures 
11. 
Section 8 of the Plan provides, as of and subject to the occurrence of the Effective Date, 
all executory contracts and unexpired leases to which any of the Debtors are parties shall be deemed 
rejected, unless such contract or lease (i) was previously assumed or rejected by the Debtors pursuant to an 
order of the Bankruptcy Court; (ii) previously expired or terminated pursuant to its own terms or by 
agreement of the parties thereto; (iii) is the subject of a motion to assume filed by the Debtors on or before 
the Confirmation Date; (iv) is identified in Section 8.4 of the Plan; or (v) is identified for assumption on the 
Assumption Schedule included in the Plan Supplement.   
 
12. 
Subject to the occurrence of the Effective Date, entry of the Confirmation Order by the 
Bankruptcy Court shall constitute approval of the assumptions, assumptions and assignments, or rejections 
provided for in the Plan pursuant to sections 365(a) and 1123 of the Bankruptcy Code and a determination 
by the Bankruptcy Court that Wind Down Estates, as applicable, have provided adequate assurance of future 
performance under such assumed executory contracts and unexpired leases.  Each executory contract and 
unexpired lease assumed or assumed and assigned pursuant to the Plan shall vest in and be fully enforceable 
by the Wind Down Estates, as applicable, in accordance with its terms, except as modified by the provisions 
of the Plan, any order of the Bankruptcy Court authorizing and providing for its assumption, or applicable 
law.  For the avoidance of doubt, the Program Agreements are not executory contracts or unexpired leases. 
 
13. 
Any Cure Amount shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, 
by payment of the Cure Amount, as reflected in the applicable cure notice, in Cash on the Effective Date, 
subject to the limitations described below, or on such other terms as the parties to such executory contracts 
or unexpired leases and the Debtors may otherwise agree.   
 
14. 
The Debtors shall file, as part of the Plan Supplement, the Assumption Schedule.  At least 
fourteen (14) days before the Confirmation Hearing, the Debtors shall serve a notice on parties to executory 
contracts or unexpired leases to be assumed or assumed and assigned reflecting the Debtors’ intention to 
potentially assume or assume and assign the contract or lease in connection with this Plan and, where 
applicable, setting forth the proposed Cure Amount (if any).  Any objection by a counterparty to an 
executory contract or unexpired lease to the proposed assumption, assumption and assignment, or 
related Cure Amount must be filed, served, and actually received by the Debtors within ten (10) days 
of the service of the assumption notice, or such shorter period as agreed to by the parties or 
authorized by the Bankruptcy Court.  Any counterparty to an executory contract or unexpired lease that 
does not timely object to the notice of the proposed assumption of such executory contract or unexpired 
lease shall be deemed to have assented to assumption of the applicable executory contract or unexpired 
lease notwithstanding any provision thereof that purports to (i) prohibit, restrict, or condition the transfer 
or assignment of such contract or lease; (ii) terminate or modify, or permit the termination or modification 
of, a contract or lease as a result of any direct or indirect transfer or assignment of the rights of any Debtor 
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under such contract or lease or a change, if any, in the ownership or control to the extent contemplated by 
the Plan; (iii) increase, accelerate, or otherwise alter any obligations or liabilities of any Debtor, or any 
Wind Down Estate, under such executory contract or unexpired lease; or (iv) create or impose a Lien upon 
any property or Asset of any Debtor, or Wind Down Estates, as applicable.  Each such provision shall be 
deemed to not apply to the assumption of such executory contract or unexpired lease pursuant to the Plan 
and counterparties to assumed executory contracts or unexpired leases that fail to object to the proposed 
assumption in accordance with the terms set forth in this Section 8.2(b), shall forever be barred and enjoined 
from objecting to the proposed assumption or to the validity of such assumption (including with respect to 
any Cure Amounts or the provision of adequate assurance of future performance), or taking actions 
prohibited by the foregoing or the Bankruptcy Code on account of transactions contemplated by the Plan. 
 
15. 
If there is an Assumption Dispute pertaining to assumption of an executory contract or 
unexpired lease (other than a dispute pertaining to a Cure Amount), such dispute shall be heard by the 
Bankruptcy Court prior to such assumption being effective; provided, that the Debtors or Wind Down 
Estates, as applicable, may settle any Assumption Dispute without any further notice to any party or any 
action, order, or approval of the Bankruptcy Court.  
  
16. 
To the extent an Assumption Dispute relates solely to the Cure Amount, the Debtors may 
assume and/or assume and assign the applicable executory contract or unexpired lease prior to the resolution 
of the Assumption Dispute; provided, that the Debtors or the Wind Down Estate, as applicable, reserve 
Cash in an amount sufficient to pay the full amount reasonably asserted as the required cure payment by 
the non-Debtor party to the extent such executory contract or unexpired lease (or such smaller amount as 
may be fixed or estimated by the Bankruptcy Court or otherwise agreed to by such non-Debtor party and 
the applicable Reorganized Debtor or the Wind Down Estate, as applicable).  The Debtors or Wind Down 
Estates, as applicable, may settle any dispute regarding the Cure Amount or the nature thereof without any 
further notice to any party or any action, order, or approval of the Bankruptcy Court. 
17. 
Assumption or assumption and assignment of any executory contract or unexpired lease 
pursuant to the Plan or otherwise shall result in the full release and satisfaction of any Claims against any 
Debtor or defaults by any Debtor, 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 that the Debtors 
assume or assume and assign such executory contract or unexpired lease.  Any proofs of Claim filed with 
respect to an executory contract or unexpired lease that has been assumed or assumed and assigned shall be 
deemed Disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy 
Court or any other Entity, upon the assumption of such executory contract or unexpired leases. 
 
Dated: January 20, 2023 
 
RICHARDS, LAYTON & FINGER, P.A. 
Daniel J. DeFranceschi, Esq. (No. 2732) 
Amanda R. Steele, Esq. (No. 5530) 
Zachary I. Shapiro, Esq. (No. 5103) 
Matthew P. Milana, Esq. (No. 6681) 
One Rodney Square 
920 North King Street 
Wilmington, Delaware 19801 
Telephone: (302) 651-7700 
WEIL, GOTSHAL & MANGES LLP 
Ray C. Schrock, P.C. (admitted pro hac vice) 
Candace M. Arthur, Esq. (admitted pro hac vice) 
Natasha S. Hwangpo, Esq. (admitted pro hac vice) 
Chase A. Bentley, Esq. (admitted pro hac vice) 
767 Fifth Avenue 
New York, New York 10153 
Telephone:  (212) 310-8000 
 
Attorneys for the Debtors and Debtors in Possession 
Case 22-10951-CTG    Doc 471    Filed 01/20/23    Page 8 of 8

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