Kabbage - COC re Further Revised DS Order
- Date
- 2023-01-19
Summary
Exhibit 1, filed January 19, 2023 as Doc 470-1 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), in the U.S. Bankruptcy Court for the District of Delaware, is a form of Notice of Confirmation Hearing. The notice states that the court approved the Amended Disclosure Statement on January 19, 2023 and authorized solicitation of votes on the Amended Joint Chapter 11 Plan of Liquidation. It sets the confirmation hearing before Judge Craig T. Goldblatt for March 13, 2023, sets a voting and objection deadline of February 21, 2023, and names Class 3 and Class 4 as the voting classes. It reproduces the plan's injunction and release provisions and describes cure procedures for executory contracts and unexpired leases. Richards, Layton & Finger, P.A. and Weil, Gotshal & Manges LLP sign as counsel for the Debtors.
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Case 22-10951-CTG Doc 470-1 Filed 01/19/23 Page 1 of 10
EXHIBIT 1
Notice of Confirmation Hearing
Case 22-10951-CTG Doc 470-1 Filed 01/19/23 Page 2 of 10
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)
:
:
Debtors.1 : (Jointly Administered)
:
: 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 (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
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.
Case 22-10951-CTG Doc 470-1 Filed 01/19/23 Page 3 of 10
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
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.
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Case 22-10951-CTG Doc 470-1 Filed 01/19/23 Page 4 of 10
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
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.
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(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
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,
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Case 22-10951-CTG Doc 470-1 Filed 01/19/23 Page 6 of 10
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. 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
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any document, instrument, or agreement (including those set forth in the Plan Supplement) executed
to implement the Plan.
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,
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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
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
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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
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 ___, 2023
Wilmington, Delaware
8
Case 22-10951-CTG Doc 470-1 Filed 01/19/23 Page 10 of 10
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
-and-
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 Debtors
and Debtors in Possession
9
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