Vyaire - Notice of Filing Revised Proposed Confirmation Order
- Date
- 2024-06-09
Summary
Findings of Fact, Conclusions of Law, and Order Approving the Debtors' Disclosure Statement for, and Confirming the Second Amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates, filed November 14, 2024 as Doc 745 in Case No. 24-11217 (BLS) in the United States Bankruptcy Court for the District of Delaware. The order recites the case history from the June 9, 2024 petition date, including the sale orders, the Disclosure Statement Order entered October 2, 2024, and the Plan filed November 11, 2024 at Docket No. 719. It sets out findings on jurisdiction, eligibility, committee appointment and the plan supplement, and overrules unresolved objections on the merits. It approves the Committee Settlement under Bankruptcy Rule 9019 and waives the stay of the order. It is signed by United States Bankruptcy Judge Brendan L. Shannon.
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Case 24-11217-BLS Doc 745 Filed 11/14/24 Page 1 of 57
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
) Re: Docket Nos. 582 & 719
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER APPROVING THE
DEBTORS’ DISCLOSURE STATEMENT FOR, AND CONFIRMING THE SECOND
AMENDED JOINT CHAPTER 11 PLAN OF VYAIRE MEDICAL, INC. AND ITS
DEBTOR AFFILIATES PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
The above-captioned debtors and debtors in possession (collectively, the “Debtors”),
having:2
a. commenced, on June 9, 2024 (the “Petition Date”), these chapter 11 cases (the “Chapter 11
Cases”) by filing voluntary petitions in the United States Bankruptcy Court for the District of
Delaware (the “Bankruptcy Court”) for relief under chapter 11 of title 11 of the United States
Code (the “Bankruptcy Code”);
b. continued to operate and manage their businesses and properties as debtors in possession
pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;
c. obtained, on July 9, 2024, entry of the Order (I) Setting Bar Dates for Filing Proofs of Claim,
Including Under Section 503(b)(9), (II) Establishing Amended Schedules Bar Date and
Rejection Damages Bar Date, (III) Approving the Form of and Manner for Filing Proofs of
Claim, Including Section 503(b)(9) Requests, and (IV) Approving Form and Manner of Notice
Thereof [Docket No. 227];
1 The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire. The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
2 All capitalized terms used but otherwise not defined in these findings of fact, conclusions of law, and order
(collectively, this “Confirmation Order”) have the meanings given to them in the Second Amended Joint
Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code,
attached hereto as Exhibit A. The rules of interpretation set forth in Article I of the Plan shall apply to this
Confirmation Order.
Case 24-11217-BLS Doc 745 Filed 11/14/24 Page 2 of 57
d. obtained, on July 11, 2024, entry of the Final Order (I) Authorizing the Debtors to Obtain
Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral, (III) Granting
Liens and Providing Superpriority Administrative Expense Claims, (IV) Granting Adequate
Protection, (V) Modifying Automatic Stay, and (VI) Granting Related Relief [Docket No. 248]
(the “Final DIP Order”);
e. obtained, on July 11, 2024, entry of the Order (I) Approving Bidding Procedures in Connection
With the Sale of Substantially All of the Debtors’ Assets, (II) Authorizing the Debtors to Enter
Into a Stalking Horse Agreement and Provide Bid Protections, (III) Approving the Form and
Manner of Notice Thereof, (IV) Scheduling an Auction and Sale Hearing, (V) Approving
Procedures for the Assumption and Assignment of Contracts, (VI) Approving the Sale of the
Debtors’ Assets Free and Clear, and (VII) Granting Related Relief [Docket No. 249]
(the “Bidding Procedures Order”);
f. obtained, on September 4, 2024, the entry of (a) the Order (I) Approving the Trudell Asset
Purchase Agreement and Authorizing the Sale of Certain Respiratory Diagnostics Assets of
the Debtors Outside the Ordinary Course of Business, (II) Authorizing the Sale of Assets Free
and Clear of All Liens, Claims, Interests, and Encumbrances, (III) Authorizing the Assumption
and Assignment of Executory Contracts and Unexpired Leases in Connection Therewith, and
(IV) Granting Related Relief [Docket No. 497] (the “Trudell Sale Order”), and (b) the Order
(I) Approving the Zoll Asset Purchase Agreement and Authorizing the Sale of Certain
Ventilation Assets of the Debtors Outside the Ordinary Course of Business, (II) Authorizing
the Sale of Assets Free and Clear of All Liens, Claims, Interests, and Encumbrances,
(III) Authorizing the Assumption and Assignment of Executory Contracts and Unexpired
Leases in Connection Therewith, and (IV) Granting Related Relief [Docket No. 496] (the “Zoll
Sale Order” and together with the Trudell Sale Order, the “Sale Orders”);
g. filed, on September 11, 2024, the Motion of Debtors for Entry of an Order (I) Approving the
Adequacy of the Disclosure Statement on an Interim and Final Basis; (II) Scheduling a
Combined Disclosure Statement Approval and Plan Confirmation Hearing; (III) Approving
the Solicitation and Notice Procedures; (IV) Approving the Combined Hearing Notice, and
(V) Granting Related Relief [Docket No. 520] (the “Disclosure Statement Motion”);
h. filed, on September 30, 2024, (a) the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its
Debtor Affiliates [Docket No. 581], and (b) the Disclosure Statement for the Joint Chapter 11
Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. 582] (the “Disclosure
Statement”);
i. obtained, on October 2, 2024, entry of the Order (I) Approving the Adequacy of the Disclosure
Statement on an Interim Basis, (II) Scheduling a Combined Disclosure Statement Approval
and Plan Confirmation Hearing, (III) Approving the Solicitation and Notice Procedures,
(IV) Approving the Combined Hearing Notice, and (V) Granting Related Relief] [Docket
No. 596] (the “Disclosure Statement Order”), which approved, among other things, solicitation
procedures and related notices (the “Solicitation and Voting Procedures”), forms, Ballots, and
Master Ballots (collectively, the “Solicitation Packages”);
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j. filed, on October 3, 2024, the Notice of Hearing to Consider (I) the Adequacy of the Disclosure
Statement and (II) Confirmation of the Joint Chapter 11 Plan Filed by the Debtors [Docket
No. 601] (the “Combined Hearing Notice”) and caused the Combined Hearing Notice to be
published on the case website on October 3, 2024, and served as further detailed therein;
k. caused the Solicitation Packages, the Non-Voting Status Notice (as defined in the Disclosure
Statement Motion), and the Combined Hearing Notice to be distributed on October 7, 2024,
October 11, 2024, and October 16, 2024, in accordance with the Bankruptcy Code, the Federal
Rules of Bankruptcy Procedures (the “Bankruptcy Rules”), and the Disclosure Statement
Order, as evidenced by, among other things, the Affidavit of Service [Docket No. 707]
(the “Solicitation Affidavit”) and the Voting Report (as defined below);
l. caused the Combined Hearing Notice to be published in the New York Times (national edition)
on October 11, 2024, as evidenced by, among other things, the Proof of Publication
[Docket No. 620] (the “Publication Affidavit” and together with the Solicitation Affidavit, the
“Affidavits”);
m. filed, on October 28, 2024, the Plan Supplement [Docket No. 689];
n. filed on November 11, 2024, the Notice of Filing of First Amended Plan Supplement (as
amended, modified, or supplemented from time to time, the “Plan Supplement”) [Docket No.
720]
o. filed on November 11, 2024, the Second Amended Joint Chapter 11 Plan of Vyaire Medical,
Inc. and Its Debtor Affiliates [Docket No. 719] (the “Plan”);
p. filed, on November 11, 2024, the Debtors’ Memorandum of Law in Support of an Order
(I) Approving the Debtors’ Disclosure Statement on a Final Basis and (II) Confirming the
Debtors’ Joint Chapter 11 Plan [Docket No. 722] (the “Confirmation Brief”);
q. filed, on November 11, 2024, the Declaration of Charles Braley in Support of Confirmation of
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. 721]
(the “Braley Declaration”);
r. caused to be filed, on November 7, 2024, the Declaration of Paul H. Deutch Regarding the
Solicitation and Tabulation of Votes on, and Elections to Opt-In to the Third-Party Release In,
the Joint Chapter 11 Plan of Vyaire Medical, Inc. and Its Debtor Affiliates [Docket No. 712]
(as may be amended, modified, or supplemented, the “Voting Report” and together with the
Braley Declaration, the “Declarations”); and
s. along with the Required DIP Lenders, entered into a resolution with the Committee of all issues
and objections to approval of the Disclosure Statement and confirmation of the Plan (the
“Committee Settlement”), which resolution is embodied in the Plan and this Confirmation
Order.
This Bankruptcy Court having:
a. entered, on October 2, 2024, the Disclosure Statement Order;
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b. set November 4, 2024, at 4:00 p.m., prevailing Eastern Time, as the deadline for filing
objections to the Plan (the “Confirmation Objection Deadline”);
c. set November 4, 2024, at 4:00 p.m., prevailing Eastern Time, as the deadline for voting
on the Plan (the “Voting Deadline”);
d. set November 14, 2024, at 10:00 a.m., prevailing Eastern Time, as the date and time
for the Combined Hearing pursuant to Bankruptcy Rules 3017 and 3018 and sections
1126, 1128, and 1129 of the Bankruptcy Code;
e. considered the Plan, the Plan Supplement, the Disclosure Statement, the Confirmation
Brief, the Declarations, the Combined Hearing Notice, the Affidavits, and all filed
pleadings, exhibits, statements, and comments regarding Confirmation, including all
objections, statements, and reservations of rights filed by parties in interest on the
docket of these Chapter 11 Cases;
f. held the Combined Hearing;
g. heard the statements and arguments made by counsel in respect of approval of the
Disclosure Statement and Confirmation of the Plan and the objections thereto;
h. considered all oral representations, affidavits, testimony, documents, filings, and other
evidence regarding approval of the Disclosure Statement and Confirmation of the Plan;
i. overruled any and all objections to the approval of the Disclosure Statement and to
Confirmation of the Plan and all statements and reservations of rights not consensually
resolved or withdrawn unless otherwise indicated herein; and
j. considered the pleadings and other documents filed and all evidence and arguments
proffered or otherwise.
NOW, THEREFORE, the Bankruptcy Court having found that notice of the Confirmation
Hearing and the opportunity for any party in interest to object to approval of the Disclosure
Statement and Confirmation of the Plan have been adequate and appropriate as to all parties
affected or to be affected by the Plan and the transactions contemplated thereby; and the
Bankruptcy Court having found that the record of these Chapter 11 Cases and the legal and factual
bases set forth in the documents filed in support of approval of the Disclosure Statement and
Confirmation of the Plan and all evidence proffered or adduced by counsel at the Confirmation
Hearing establish just cause for the relief granted herein; and after due deliberation thereon and
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good cause appearing therefor, the Bankruptcy Court hereby makes and issues the following
findings of fact and conclusions of law, and orders:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
IT IS HEREBY DETERMINED FOUND, ADJUDGED, DECREED, AND ORDERED THAT:
A. Findings of Fact and Conclusions of Law
1. The findings of fact and the conclusions of law set forth and incorporated in this
Confirmation Order constitute the Bankruptcy Court’s findings of fact and conclusions of law in
accordance with Bankruptcy Rule 7052, made applicable to this proceeding pursuant to
Bankruptcy Rule 9014. Each finding of fact set forth or incorporated in this Confirmation Order,
to the extent it is or may be deemed a conclusion of law, shall also constitute a conclusion of law.
Each conclusion of law set forth or incorporated in this Confirmation Order, to the extent it is or
may be deemed a finding of fact, shall also constitute a finding of fact.
B. Jurisdiction, Venue, Core Proceeding
2. The Bankruptcy Court has subject matter jurisdiction over this matter under
sections 157 and 1334 of title 28 of the United States Code, 28 U.S.C. §§ 1–4881 (the “Judicial
Code”), and the Amended Standing Order of Reference from the United States District Court for
the District of Delaware, dated February 29, 2012. The Bankruptcy Court has exclusive
jurisdiction to determine whether the Disclosure Statement and the Plan comply with the
applicable provisions of the Bankruptcy Code and should be approved and confirmed,
respectively. Venue is proper before the Bankruptcy Court pursuant to sections 1408 and 1409 of
the Judicial Code. Approval of the Disclosure Statement and Confirmation of the Plan are core
proceedings within the meaning of section 157(b)(2) of the Judicial Code.
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C. Eligibility for Relief
3. The Debtors were at all times during these Chapter 11 Cases and continue to be
entities eligible for relief under section 109 of the Bankruptcy Code, and the Debtors are proper
proponents of the Plan under section 1121(a) of the Bankruptcy Code.
D. Commencement and Joint Administration of these Chapter 11 Cases
4. On the Petition Date, the Debtors commenced these Chapter 11 Cases by filing
voluntary petitions for relief under chapter 11 of the Bankruptcy Code. On June 11, 2024, the
Bankruptcy Court entered the Order (I) Directing the Joint Administration of Chapter 11 Cases
and (II) Granting Related Relief [Docket No. 84] authorizing the joint administration and
procedural consolidation of these Chapter 11 Cases in accordance with Bankruptcy Rule 1015(b).
Since the Petition Date, the Debtors have operated their businesses as debtors in possession
pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No request for the appointment
of a trustee or examiner has been made in these Chapter 11 Cases.
E. Committee Appointment
5. On June 26, 2024, the United States Trustee appointed the Committee pursuant to
section 1102 of the Bankruptcy Code, comprised of the following members: (a) Sunmed Group
Holdings, LLC (d/b/a AirLife); (b) Zensar Technologies Inc.; (c) Cognizant Worldwide Ltd.;
(d) Presido; (e) Vizient, Inc.; (f) David M. Lewis Company; and (g) Data Modul, Inc. [Docket No.
121].
F. Objections
6. This Bankruptcy Court takes judicial notice of the docket of these Chapter 11 Cases
maintained by the Clerk of the Bankruptcy Court, including, without limitation, all pleadings and
other documents Filed and orders entered thereon. The Bankruptcy Court also takes judicial notice
of all evidence proffered or adduced and all arguments made at the hearings held before the
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Bankruptcy Court during the pendency of the Chapter 11 Cases. Any resolution of objections to
Confirmation is hereby incorporated by reference. All unresolved objections, statements, informal
objections, and reservations of rights (except with respect to unresolved cure amounts), if any,
related to the Disclosure Statement or Confirmation of the Plan are overruled on the merits.
G. Plan Supplement
7. The Plan Supplement (including as subsequently amended, supplemented, or
otherwise modified from time to time in accordance with the Plan) complies with the Bankruptcy
Code and the terms of the Plan, and the Debtors provided good and proper notice of the filing of
the Plan Supplement in accordance with the Disclosure Statement Order, the Bankruptcy Code,
the Bankruptcy Rules, the Local Rules of Bankruptcy Practice and Procedure of the United States
Bankruptcy Court for the District of Delaware (the “Local Rules”), and all other applicable rules,
laws, and requirements. All parties required to be given notice of the documents identified in the
Plan Supplement have been provided due, proper, timely, and adequate notice and have had an
opportunity to appear and be heard with respect thereto. The transmittal and notice of the Plan
Supplement (and all documents identified in the Plan Supplement) was appropriate and
satisfactory based upon the circumstances of these Chapter 11 Cases and was conducted in good
faith. No other or further notice with respect to the Plan Supplement (and all documents identified
in the Plan Supplement) is necessary or shall be required. All documents included in the Plan
Supplement, including any amendments, modifications, and supplements thereto, and all
documents and agreements related thereto (including all exhibits and attachments thereto), are
integral to, part of, and incorporated by reference into the Plan. Subject to the terms of Article X
of the Plan, the Debtors reserve the right to alter, amend, update, or modify the Plan Supplement
and any of the documents contained therein or related thereto on or before the Effective Date;
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provided, that such alterations, amendments, updates, and/or modifications shall not be contrary
to, and shall be consistent with in all respects, the terms of the Committee Settlement.
H. Interim Disclosure Statement Order
8. On October 2, 2024, the Bankruptcy Court entered the Disclosure Statement Order,
which, among other things, (a) approved, on an interim basis, the Disclosure Statement as
containing adequate information within the meaning of section 1125 of the Bankruptcy Code and
Bankruptcy Rule 3017, (b) approved the Solicitation and Voting Procedures, (c) approved the form
and manner of the Solicitation Packages, (d) set November 4, 2024, at 4:00 p.m., prevailing Eastern
Time, as the Confirmation Objection Deadline and the Voting Deadline, and (e) set November 14,
2024, at 1:30 p.m., prevailing Eastern Time, as the date and time for the Combined Hearing (which
time was rescheduled by the Bankruptcy Court to November 14, 2024, at 10:00 a.m., prevailing
Eastern Time). The period during which the Debtors solicited acceptances to the Plan is a
reasonable and adequate period of time for Holders of Claims or Interests in the Voting Classes to
have made an informed decision to accept or reject the Plan.
I. Adequacy of the Disclosure Statement
9. The Disclosure Statement contains extensive material information regarding the
Debtors so that parties entitled to vote on the Plan could make informed decisions regarding the
Plan. The Disclosure Statement contains “adequate information” within the meaning of section
1125 of the Bankruptcy Code and complies with any additional applicable requirements of the
Bankruptcy Code, the Bankruptcy Rules, and non-bankruptcy law. The Debtors’ solicitation of
acceptances and rejections of the Plan via transmittal of the Disclosure Statement and the other
materials in the Solicitation Packages was authorized by and complied with the Disclosure
Statement Order and was appropriate under the circumstances.
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J. Solicitation and Notice
10. The Plan was solicited in good faith and in compliance with applicable provisions
of the Bankruptcy Code and Bankruptcy Rules.
11. As described in the Voting Report, the Solicitation Packages were transmitted and
served in compliance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local
Rules, and the Disclosure Statement Order. The solicitation of votes on the Plan complied with
the Solicitation and Voting Procedures, was appropriate and satisfactory based upon the
circumstances of these Chapter 11 Cases, was conducted in “good faith” within the meaning of
section 1125(e) of the Bankruptcy Code, and was in compliance with section 1125, section 1126,
and all other applicable sections of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules,
and all other applicable rules, laws, and regulations.
12. As described in the Voting Report and the Affidavits, all parties required to be given
notice of the Combined Hearing (including the deadline for filing and serving objections to
Confirmation of the Plan) have been provided due, proper, timely, and adequate notice and have
had an opportunity to appear and be heard with respect thereto. Such notice was adequate and
sufficient pursuant to section 1128 of the Bankruptcy Code, Bankruptcy Rules 2002, 3017, and
3020, and other applicable law and rules, and no other or further notice is or shall be required.
K. Voting Report
13. On November 7, 2024, the Debtors filed the Voting Report. As set forth in the
Voting Report, the procedures used to tabulate the Ballots were fair, in good faith, and conducted
in accordance with the Disclosure Statement Order, the Bankruptcy Code, the Bankruptcy Rules,
the Local Rules, and all other applicable rules, laws, and regulations.
14. As set forth in the Plan, Holders of Claims in Classes 4 and 5 (collectively,
the “Voting Classes”) for each of the Debtors were eligible to vote on the Plan pursuant to the
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Solicitation and Voting Procedures. In addition, Holders of Claims in Classes 1, 2, and 3 are
Unimpaired and conclusively presumed to accept the Plan and, therefore, are not entitled to vote
to accept or reject the Plan. Depending on their ultimate treatment by the Debtors, Holders of
Claims and Interests in Classes 7 and 8 are either Unimpaired or Impaired and will be either
conclusively deemed to accept or conclusively deemed to reject the Plan, and in either scenario
are not entitled to vote on the Plan. Holders of Claims and Interests in Classes 6, 9 and 10 are
Impaired under the Plan and are conclusively deemed to have rejected the Plan.
15. As evidenced by the Voting Report, Classes 4 and 5 voted to accept the Plan, and
no Voting Classes voted to reject the Plan.
L. Bankruptcy Rule 3016
16. The Plan is dated and identifies the Entities submitting it, thereby satisfying
Bankruptcy Rule 3016(a). The Debtors appropriately filed the Disclosure Statement and the Plan
with the Bankruptcy Court, thereby satisfying Bankruptcy Rule 3016(b).
M. Burden of Proof
17. The Debtors, as proponents of the Plan, have met their burden of proving the
applicable elements of sections 1129(a) and 1129(b) of the Bankruptcy Code by a preponderance
of the evidence, which is the applicable evidentiary standard for Confirmation of the Plan. Further,
the Debtors have proven the elements of sections 1129(a) and 1129(b) of the Bankruptcy Code by
clear and convincing evidence.
N. Plan Modifications
18. Pursuant to section 1127 of the Bankruptcy Code, the modifications to the Plan
described or set forth in this Confirmation Order constitute technical or clarifying changes,
changes with respect to particular Claims by agreement with holders of such Claims, or
modifications that do not otherwise materially and adversely affect or change the treatment of any
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other Claim or Interest under the Plan. After giving effect to these modifications, the Plan
continues to satisfy the requirements of sections 1122 and 1123 of the Bankruptcy Code and notice
of these modifications was adequate and appropriate under the facts and circumstances of these
Chapter 11 Cases. In accordance with Bankruptcy Rule 3019, these modifications do not require
additional disclosure under section 1125 of the Bankruptcy Code or the resolicitation of votes on
the Plan under section 1126 of the Bankruptcy Code, and they do not require that holders of Claims
or Interests be afforded an opportunity to change previously cast votes accepting or rejecting the
Plan. Accordingly, the Plan is properly before this Court and all votes cast with respect to the Plan
prior to such modification shall be binding and shall apply with respect to the Plan.
O. Presumed Acceptance of Plan as Modified
19. In accordance with section 1127 of the Bankruptcy Code and Bankruptcy Rule
3019, all Holders of Claims who voted to accept the Plan or who are conclusively presumed to
have accepted the Plan are presumed to have accepted the Plan as modified by this Confirmation
Order. No Holder of a Claim who has voted to accept the Plan shall be permitted to change its
vote as a consequence of the any plan modifications as set forth herein. All modifications to the
Plan or Plan Supplement made after the Voting Deadline are hereby approved pursuant to section
1127 of the Bankruptcy Code and Bankruptcy Rule 3019.
P. Compliance with the Bankruptcy Code (11 U.S.C. §§ 1125 and 1127)
20. The Debtors have complied with section 1125 of the Bankruptcy Code with respect
to the Disclosure Statement and the Plan. The requirements of section 1127 of the Bankruptcy
Code have been satisfied.
Q. Plan Compliance with the Bankruptcy Code (11 U.S.C. § 1129)
21. The Plan complies with all applicable provisions of section 1129 of the Bankruptcy
Code.
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a) Compliance with Applicable Provisions of the Bankruptcy Code (11 U.S.C.
§ 1129(a)(1)).
22. The Plan complies with all applicable provisions of the Bankruptcy Code as
required by section 1129(a)(1) of the Bankruptcy Code, including sections 1122 and 1123 of the
Bankruptcy Code. In addition, the Plan is dated and identifies the Entities submitting it, thereby
satisfying Bankruptcy Rule 3016(a).
i. Proper Classification (11 U.S.C. §§ 1122 and 1123(a)(1)).
23. The Plan satisfies sections 1122 and 1123(a)(1) of the Bankruptcy Code, and the
classification of Claims and Interests under the Plan is proper under the Bankruptcy Code.
Article III of the Plan provides for the separate classification of Claims and Interests into ten
Classes, based on differences in the legal nature or priority of such Claims and Interests (other than
Administrative Claims, Professional Fee Claims, DIP Claims, Priority Tax Claims, and payment
of U.S. Trustee statutory fees, which are addressed in Article II of the Plan and which are not
required to be designated as separate Classes pursuant to section 1123(a)(1) of the Bankruptcy
Code). Valid business, factual, and legal reasons exist for the separate classification of the various
Classes of Claims and Interests created under the Plan. The classifications were not promulgated
for any improper purpose, and the creation of such Classes does not unfairly discriminate between
or among Holders of Claims or Interests. In accordance with section 1122(a) of the Bankruptcy
Code, each Class of Claims and Interests contains only Claims or Interests that are substantially
similar to the other Claims or Interests within that Class. The Plan, therefore, satisfies the
requirements of sections 1122(a), 1122(b), and 1123(a)(1) of the Bankruptcy Code.
ii. Specified Unimpaired and Impaired Classes (11 U.S.C. §§ 1123(a)(2) and
1123(a)(3)).
24. The Plan satisfies sections 1123(a)(2) and 1123(a)(3) of the Bankruptcy Code.
Article III of the Plan specifies that Claims in Classes 1, 2, and 3 are Unimpaired. Article III of
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the Plan also specifies the treatment of each voting Impaired Class under the Plan, which are
Classes 4 and 5. Holders of Claims and Interests in Classes 7 and 8 are deemed to accept or
deemed to reject the Plan depending on whether such Claims or Interests are reinstated or canceled
and released without any distribution on account of such Claims or Interests. Holders of Claims
and Interests in Classes 6, 9, and 10 are Impaired under the Plan and are conclusively deemed to
have rejected the Plan.
iii. No Discrimination (11 U.S.C. § 1123(a)(4)).
25. The Plan satisfies the requirements of section 1123(a)(4) of the Bankruptcy Code.
Article III of the Plan provides the same treatment for each Claim or Interest within a particular
Class unless the Holder of a particular Claim or Interest has agreed to a less favorable treatment
with respect to such Claim or Interest.
iv. Implementation of the Plan (11 U.S.C. § 1123(a)(5)).
26. The Plan and the various documents included in the Plan Supplement (collectively,
the “Plan Documents”) satisfy the requirements of section 1123(a)(5) of the Bankruptcy Code.
The Plan and the Plan Documents provide adequate and proper means for the Plan’s
implementation, including by providing for, among other things, consummation of the
Restructuring Transactions and the appointment of a Plan Administrator.
v. Non-Voting Equity Securities (11 U.S.C. § 1123(a)(6)).
27. On the Effective Date, the Wind-Down Debtor Assets shall be transferred to and
vest in the Wind-Down Debtor. Following the Effective Date, the Plan Administrator shall serve
as the sole director and sole officer of the Wind-Down Debtor. The Plan does not provide for the
issuance of equity or other securities by the Debtors or the Wind-Down Debtor. Accordingly, the
requirements of section 1123(a)(6) are inapplicable in these Chapter 11 Cases.
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vi. Designation of Directors and Officers (11 U.S.C. § 1123(a)(7)).
28. The Plan satisfies the requirements of section 1123(a)(7) of the Bankruptcy Code.
The Plan discharges all of the Debtors’ officers, directors, members, and managers from their
duties effective as of the Effective Date without any further action. The Plan further provides for
the formation of the Wind-Down Debtor managed by the Plan Administrator. The selection of the
Plan Administrator is consistent with the Plan and the interests of Holders of Claims and Interests
and public policy. Accordingly, the Plan satisfies the requirements of section 1123(a)(7) of the
Bankruptcy Code.
vii. Discretionary Contents of the Plan (11 U.S.C. § 1123(b)).
29. The Plan satisfies the requirements of section 1123(b) of the Bankruptcy Code. The
other provisions of the Plan are appropriate and consistent with the applicable provisions of the
Bankruptcy Code.
(b) Executory Contracts and Unexpired Leases (11 U.S.C.
§ 1123(b)(2)).
30. Pursuant to sections 365 and 1123(b)(2) of the Bankruptcy Code, upon the
occurrence of the Effective Date, Article V.A of the Plan provides that, except as otherwise
provided in the Plan or in the Sale Orders, each Executory Contract or Unexpired Lease not
previously assumed, assumed and assigned, or rejected shall be deemed automatically rejected,
pursuant to sections 365 and 1123 of the Bankruptcy Code, unless such Executory Contract or
Unexpired Lease is: (1) a TSA Contract (subject to the provisions set forth in Article V.B of the
Plan in all respects); (2) the subject of a motion to assume (or assume and assign) such Executory
Contract that is pending on the Confirmation Date; (3) a contract, instrument, release, indenture,
or other agreement or document entered into in connection with the Plan; (4) an Insurance Policy;
(5) an Asset Purchase Agreement; or (6) to be assumed by the Debtors and assigned to any
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Purchaser in connection with any Sale Transaction and pursuant to any Sale Transaction
Documentation. Neither the Plan nor this Confirmation Order is intended to or shall be construed
as limiting the Debtors’ authority under the Sale Orders to assume and assign Executory Contracts
and Unexpired Leases to the Purchaser(s) pursuant to the Asset Purchase Agreement(s).
31. The Debtors’ determinations regarding the assumption or rejection of Executory
Contracts and Unexpired Leases are based on and within the sound business judgment of the
Debtors, are necessary to the implementation of the Plan, and are in the best interests of the
Debtors, their Estates, Holders of Claims or Interests and other parties in interest in these Chapter
11 Cases.
(c) Releases, Exculpation, Injunction, and Preservation of Claims
and Causes of Action (11 U.S.C. § 1123(b)(3)).
32. Debtor Release. Consistent with sections 157 and 1334(a) and (b) of title 28 of
the Judicial Code, and sections 105(a), 1123(b)(3), and 1123(b)(6) of the Bankruptcy Code, the
Bankruptcy Court has jurisdiction and constitutional adjudicatory authority to approve the release
set forth in Article VIII.B of the Plan (the “Debtor Release”). The Debtor Release is an essential
component of the Plan. The scope of the Debtor Release is appropriately tailored under the facts
and circumstances of these Chapter 11 Cases. The Debtor Release is given and made after due
notice and opportunity for hearing. The Debtors’ pursuit of any such claims against the Released
Parties is not in the best interests of the Estates’ various constituencies because the costs involved
would likely outweigh any potential benefit from pursuing such claims. The Debtor Release is
fair, equitable, reasonable, and in the best interests of the Debtors, their Estates, and Holders of
Claims and Interests.
33. The Debtor Release represents a valid exercise of the Debtors’ business judgment
and is the result of a good-faith and arms’ length negotiation between sophisticated parties that
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had representation from able counsel and advisors. The Debtor Release appropriately offers
protection to parties that participated in the Debtors’ chapter 11 process, and such participation in
these Chapter 11 Cases is critical to the Debtors’ successful emergence from bankruptcy. Each of
the Released Parties shares a common goal with the Debtors in seeing the Plan succeed and
implementing the transactions contemplated in the Plan. The record shows that the releases
relating to the Debtors’ current and former directors, officers, affiliates, and principals have an
identity of interest in supporting the release because the Debtors will assume certain
indemnification obligations under the Plan, and the Wind-Down Debtors will honor such
obligations in accordance with the terms of the Plan. The evidence establishes that the Debtors
conducted a thorough analysis of the Debtors’ claims and causes of action in determining to grant
the Debtor Release and that the Debtors have satisfied the business judgment standard in granting
the Debtor Release under the Plan.
34. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference each of the
related provisions and definitions contained in the Plan, and further, shall constitute the
Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for the good and valuable
consideration provided by the Released Parties, including, the Released Parties’ contribution to
facilitating the Restructuring Transactions and implementing the Plan; (2) a good faith settlement
and compromise of the Claims released by the Debtor Release; (3) in the best interests of the
Debtors, the Wind-Down Debtor, and all Holders of Claims and Interests; (4) fair, equitable, and
reasonable; (5) given and made after due notice and opportunity for a hearing; and (6) a bar to any
of the Debtors, the Wind-Down Debtor, or the Debtors’ Estates asserting any Claim or Cause of
Action released pursuant to the Debtor Release. In light of, among other things, the value provided
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by the Released Parties to the Debtors’ Estates and the critical nature of the Debtor Release to the
Plan, the Debtor Release is approved.
35. Releases by Holders of Claims and Interests. Consistent with sections 157 and
1334(a) and (b) of title 28 of the Judicial Code, and sections 105(a), 1123(b)(3), and 1123(b)(6) of
the Bankruptcy Code, the Bankruptcy Court has jurisdiction and constitutional adjudicatory
authority to approve the release set forth in Article VIII.C of the Plan (the “Third-Party Release”).
The Third-Party Release is given and made after due notice and opportunity for hearing.
36. The Third-Party Release is consensual with respect to the Releasing Parties. The
Ballots sent to all Holders of Claims and Interests entitled to vote, the Non-Voting Status Notice
sent to Holders of Claims and Interests not entitled to vote, and the notice of the Combined Hearing
sent to parties in interest unambiguously provided in bold letters that the Third-Party Release was
contained in the Plan. Entry of the Confirmation Order shall constitute the Bankruptcy Court’s
approval, pursuant to Bankruptcy Rule 9019, of the Third-Party Release, which includes by
reference each of the related provisions and definitions contained in the Plan, and further, shall
constitute the Bankruptcy Court’s finding that the Third-Party Release is: (1) consensual; (2)
essential to the Confirmation of the Plan; (3) given in exchange for the good and valuable
consideration provide by the Released Parties; (4) a good faith settlement and compromise of the
Claims released by the Third-Party Release; (5) in the best interests of the Debtors, the Wind-
Down Debtor, and the Estates; (6) fair, equitable, and reasonable; (7) given and made after due
notice and opportunity for a hearing; and (8) a bar to any of the Releasing Parties asserting any
Claim or Cause of Action released pursuant to the Third-Party Release.
37. Exculpation. Consistent with sections 157 and 1334(a) and (b) of title 28 of the
Judicial Code, and sections 105(a), 1123(b)(3), and 1123(b)(6) of the Bankruptcy Code, the
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Bankruptcy Court has jurisdiction and authority to approve the exculpation set forth in
Article VIII.D of the Plan (the “Exculpation”). The Exculpation is essential to the Plan. The
evidence before the Bankruptcy Court demonstrates that the Plan’s Exculpation was critical to the
parties’ willingness to support the Debtors’ chapter 11 efforts and that these parties would not have
been so inclined to participate in the Plan process without the promise of exculpation, and such
parties did so in reliance upon the protections afforded in the Exculpation. The Exculpation
appropriately affords protection to those parties who constructively participated in and contributed
to the Debtors’ chapter 11 process consistent with their duties under the Bankruptcy Code, and it
is appropriately tailored to protect the Exculpated Parties from inappropriate litigation.
38. Injunction. Section 105(a) and section 1123(b)(3) and (b)(6) of the Bankruptcy
Code permit issuance of the injunction provisions set forth in Article VIII.E of the Plan
(the “Injunction”) and are within the jurisdiction of this Bankruptcy Court under sections 1334(a),
1334(b), and 1334(d) of the Judicial Code. The Injunction is essential to the Plan and is necessary
to implement the Plan and to preserve and enforce the Debtor Release, the Third-Party Release,
and the Exculpation provisions in Article VIII of the Plan. Such Injunction is appropriately tailored
to achieve those purposes.
viii. Cure of Defaults (11 U.S.C. § 1123(d)).
39. Article V of the Plan provides for the satisfaction of Cure Claims associated with
Executory Contracts and Unexpired Leases, if assumed or assumed and assigned, in accordance
with section 365(b)(1) of the Bankruptcy Code. Any monetary defaults under each Assumed
Executory Contract or Unexpired Lease pursuant to the Plan (it being understood that the
assumption and assignment of the Executory Contracts or Unexpired Leases pursuant to the Asset
Purchase Agreements shall be authorized and governed by the Bidding Procedures Order and
applicable Sale Order, and, in the event of any inconsistency between the Plan, Bidding Procedures
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Order, and Sale Orders concerning the assumption and assignment of such Executory Contracts or
Unexpired Leases, the terms of the applicable Sale Order shall govern and control) shall be
satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, or on such other terms as the
parties to such Executory Contracts or Unexpired Leases may otherwise agree. Any disputed cure
amounts will be determined in accordance with the procedures set forth in Article V of the Plan,
and applicable bankruptcy and non-bankruptcy law. As such, the Plan provides that the Debtors,
the Wind-Down Debtor, or the Purchaser, as applicable, will cure defaults with respect to assumed
Executory Contracts and Unexpired Leases in accordance with section 365(b)(1) of the
Bankruptcy Code. Thus, the Plan complies with section 1123(d) of the Bankruptcy Code.
b) The Debtors’ Compliance with the Bankruptcy Code (11 U.S.C. § 1129(a)(2)).
40. The Debtors, as Plan proponents, have complied with all applicable provisions of
the Bankruptcy Code as required by section 1129(a)(2) of the Bankruptcy Code, including sections
1122, 1123, 1124, 1125, 1126, and 1128, and Bankruptcy Rules 3017, 3018, and 3019.
41. The Debtors and their agents solicited votes to accept or reject the Plan after the
Bankruptcy Court entered the Disclosure Statement Order approving the Solicitation Packages and
Solicitation and Voting Procedures.
42. The Debtors and their agents have solicited and tabulated votes on the Plan and
have participated in the activities described in section 1125 of the Bankruptcy Code fairly and in
good faith within the meaning of section 1125(e) of the Bankruptcy Code, and in a manner
consistent with the applicable provisions of the Disclosure Statement Order, the Disclosure
Statement, the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and all other applicable
rules, laws, and regulations, and are entitled to the protections afforded by section 1125(e) of the
Bankruptcy Code and the Exculpation provisions set forth in Article VIII.D. of the Plan.
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c) Plan Proposed in Good Faith (11 U.S.C. § 1129(a)(3)).
43. The Plan satisfies the requirements of section 1129(a)(3) of the Bankruptcy Code.
The Debtors have proposed the Plan and Plan Documents in good faith and not by any means
forbidden by law. In determining that the Plan has been proposed in good faith, the Bankruptcy
Court has examined the totality of the circumstances surrounding the filing of these Chapter 11
Cases, the Plan itself, the process leading to its formulation, and the transactions to be implemented
pursuant thereto. Consistent with the overriding purpose of chapter 11, these Chapter 11 Cases
were filed, and the Plan was proposed, with the legitimate purpose of allowing the Debtors to
maximize the value of the Debtors’ Estates. The Debtors’ good faith is evident from the facts and
record of these Chapter 11 Cases, the Disclosure Statement, the Disclosure Statement Hearing,
and all the other proceedings held in these Chapter 11 Cases and before the Bankruptcy Court.
44. The Plan was proposed with the legitimate and honest purpose of maximizing the
value of the Debtors’ Estates and to effectuate a successful chapter 11 proceeding for the Debtors.
The Plan was the product of extensive negotiations conducted at arm’s length among the Debtors
and certain of their key stakeholders including, but not limited to, the Committee and the
Consenting Stakeholders. Further, the Plan’s classification, settlement, exculpation, release, and
injunction provisions have been negotiated in good faith and at arm’s length, are consistent with
sections 105, 1122, 1123(b)(3)(A), 1123(b)(6), 1125(e), 1129, and 1142 of the Bankruptcy Code,
and are each necessary for the Debtors to consummate a value-maximizing conclusion to these
Chapter 11 Cases. Accordingly, the requirements of section 1129(a)(3) of the Bankruptcy Code
are satisfied.
d) Payment for Services or Costs and Expenses (11 U.S.C. § 1129(a)(4)).
45. Payments made or to be made by the Debtors for services or for costs and expenses
incurred in or in connection with these Chapter 11 Cases, or in connection with the Plan and
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incident to these Chapter 11 Cases, have been approved by, or are subject to the approval of, the
Bankruptcy Court as reasonable. The Plan, therefore, satisfies the requirements of
section 1129(a)(4) of the Bankruptcy Code.
e) Directors, Officers, and Insiders (11. U.S.C. § 1129(a)(5)).
46. Because the Plan provides for the orderly wind-down of the Debtors and resignation
of the Debtors’ officers, directors, and managers, section 1129(a)(5) of the Bankruptcy Code does
not apply. To the extent section 1129(a)(5) of the Bankruptcy Code applies to the Wind-Down
Debtor, the Debtors have satisfied the requirements of this provision by, among other things,
disclosing the identity of the Plan Administrator in the Plan Supplement.
f) No Rate Changes (11 U.S.C. § 1129(a)(6)).
47. The Plan does not contain any rate changes subject to the jurisdiction of any
governmental regulatory commission and will not require governmental regulatory approval.
Therefore, section 1129(a)(6) of the Bankruptcy Code does not apply to the Plan.
g) Best Interests of Creditors (11 U.S.C. § 1129(a)(7)).
48. The Plan satisfies the requirements of section 1129(a)(7) of the Bankruptcy Code.
The evidence in support of the Plan and the facts and circumstances of these Chapter 11 Cases
establish that each Holder of Allowed Claims or Interests in each Class will recover as much or
more value under the Plan on account of such Claim or Interest, as of the Effective Date, than the
amount such Holder would receive if the Debtors were liquidated on the Effective Date under
chapter 7 of the Bankruptcy Code. The Liquidation Analysis (as defined in the Disclosure
Statement and attached as Exhibit B thereto [Docket No. 532]), and the other evidence related
thereto are persuasive and credible. The Liquidation Analysis demonstrates that recoveries under
the Plan are at least as high as they would be in a hypothetical liquidation. The methodology used
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and assumptions made in the Liquidation Analysis are reasonable. The Plan, therefore, satisfies
the requirements of section 1129(a)(7) of the Bankruptcy Code.
h) Acceptance by Certain Classes (11 U.S.C. § 1129(a)(8)).
49. The Plan satisfies section 1129(a)(8) of the Bankruptcy Code. Classes 1, 2, and 3
are Unimpaired Classes of Claims, each of which is conclusively presumed to have accepted the
Plan in accordance with section 1126(f) of the Bankruptcy Code. Class 4 (First Lien Claims) and
Class 5 (Second Lien Claims) voted to accept the Plan. Class 7 and Class 8 are either Unimpaired
by the Plan and conclusively presumed to have accepted the Plan or Impaired and deemed to have
rejected the Plan. Classes 6 (General Unsecured Claims), 9, and Class 10 are Impaired Classes
that will not receive or retain any property under the Plan on account of the Claim in each such
Class, are not entitled to vote on the Plan, and are deemed to reject the Plan. To the extent a Class
contains Claims or Interests eligible to vote and no Holders of Claims or Interests eligible to vote
in such Class vote to accept or reject the Plan, such Class shall be considered vacant and deemed
eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of
determining acceptance or rejection of the Plan by such Class pursuant to section 1129(a)(8) of
the Bankruptcy Code. Nevertheless, as set forth below, the Debtors satisfy the requirements under
section 1129(b) of the Bankruptcy Code with respect to the Claims that have rejected or are deemed
to reject the Plan.
i) Treatment of Claims Entitled to Priority Pursuant to Section 507(a) of the
Bankruptcy Code (11 U.S.C. § 1129(a)(9)).
50. The treatment of Administrative Claims, Professional Fee Claims, DIP Claims,
Priority Tax Claims, and payment of U.S. Trustee statutory fees under Article II of the Plan
satisfies the requirements of, and complies in all respects with, section 1129(a)(9) of the
Bankruptcy Code.
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j) Acceptance by at Least One Impaired Class of Claims (11 U.S.C. § 1129(a)(10)).
51. The Plan satisfies the requirements of section 1129(a)(10) of the Bankruptcy Code.
As set forth in the Voting Report, all Voting Classes are Impaired, and the requisite number and
amount of Claims specified under the Bankruptcy Code voted to accept the Plan, determined
without including any acceptance of the Plan by any insider (as that term is defined in section
101(31) of the Bankruptcy Code). Further, as set forth in the Voting Report, the Classes that are
not entitled to receive or retain any property under the Plan are, therefore, deemed to have rejected
the Plan pursuant to section 1126(g) of the Bankruptcy Code.
k) Feasibility of the Plan (11 U.S.C. § 1129(a)(11)).
52. The evidence in the Declarations and the Confirmation Brief: (a) is reasonable,
persuasive, and credible as of the dates such evidence was prepared, presented, and/or proffered;
(b) has not been controverted by other evidence; (c) establishes that the Plan is feasible; and
(d) establishes that the Debtors or the Wind-Down Debtor will have sufficient funds available to
meet their obligations under the Plan. The Plan, therefore, satisfies the requirements of section
1129(a)(11) of the Bankruptcy Code.
l) Payment of Statutory Fees (11 U.S.C. § 1129(a)(12)).
53. The Plan provides for the payment of all fees payable by the by the Wind-Down
Debtor (or the Disbursing Agent on behalf of the Wind-Down Debtor) under section 1930(a) of
the Judicial Code. The Plan, therefore, satisfies the requirements of section 1129(a)(12) of the
Bankruptcy Code.
m) Non-Applicability of Certain Sections (11 U.S.C. §§ 1129(a)(13), 1129(a)(14), (15), and
(16)).
54. The Debtors do not owe retiree benefit obligations, any domestic support
obligations, are not individuals, and are not nonprofit corporations. Therefore, sections
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1129(a)(13), 1129(a)(14), 1129(a)(15), and 1129(a)(16) of the Bankruptcy Code do not apply to
these Chapter 11 Cases.
n) Section 1129(b)—Confirmation of Plan Over Nonacceptance of Impaired Classes
55. Notwithstanding the fact that the deemed rejecting classes have not accepted the
Plan, the Plan may be confirmed pursuant to section 1129(b)(1) of the Bankruptcy Code. First,
all of the requirements of section 1129(a) of the Bankruptcy Code other than section 1129(a)(8)
have been met. Second, the Plan is fair and equitable with respect to the deemed rejecting Classes.
The Plan has been proposed in good faith, is reasonable, and meets the requirements that (i) no
Holder of any Impaired Claim or Interest that is junior to such Impaired Class will receive or retain
any property under the Plan on account of such junior Claim or Interest and (ii) no Holder of a
Claim or Interest in a Class senior to such Impaired Class is receiving more than 100 percent on
account of its Claim or Interest. Accordingly, the Plan is fair and equitable to all Holders of Claims
and Interests in the deemed rejecting Classes. Third, the Plan does not discriminate unfairly with
respect to the deemed rejecting Classes because similarly situated creditors in such Classes that
have not accepted the Plan will receive substantially similar treatment on account of their Claim
or Interest irrespective of Class. Finally, Holders of Claims in Classes 4 and 5 voted to accept the
Plan in sufficient number and in sufficient amount to constitute accepting classes under the
Bankruptcy Code. As a result, the Plan satisfies the requirements of section 1129(b) of the
Bankruptcy Code and can be confirmed.
o) Only One Plan (11 U.S.C. § 1129(c)).
56. Other than the Plan (including previous versions thereof), no other plan has been
filed for the Debtors in these Chapter 11 Cases. The Plan, therefore, satisfies the requirements of
section 1129(c) of the Bankruptcy Code.
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p) Principal Purpose of the Plan (11 U.S.C. § 1129(d)).
57. The principal purpose of the Plan is not the avoidance of taxes or the avoidance of
the application of Section 5 of the Securities Act, 15 U.S.C. § 77e. The Plan, therefore, satisfies
the requirements of section 1129(d) of the Bankruptcy Code.
q) Not a Small Business Case (11 U.S.C. § 1129(e)).
58. These Chapter 11 Cases are not small business cases, and accordingly
section 1129(e) of the Bankruptcy Code is inapplicable in these Chapter 11 Cases.
r) Satisfaction of Confirmation Requirements.
59. Based upon the foregoing and all other pleadings and evidence proffered, the Plan
satisfies the requirements for plan confirmation set forth in section 1129 of the Bankruptcy Code.
R. Likelihood of Satisfaction of Conditions Precedent to the Effective Date
60. Each of the conditions precedent to the Effective Date, as set forth in Article IX.A
of the Plan, has been or is reasonably likely to be satisfied or waived in accordance with
Article IX.B of the Plan.
S. Implementation
61. The Plan, all documents contained in the Plan Supplement, and all other relevant
and necessary documents have been negotiated in good faith and at arm’s length, are fair and
reasonable, are supported by reasonably equivalent value and fair consideration, are in the best
interests of the Debtors, their Estates, and the Wind-Down Debtor, and shall, upon completion of
documentation and execution in accordance with the terms and conditions of the Plan, be valid,
binding, and enforceable documents and agreements not in conflict with any federal, state, or local
law. The documents and agreements are essential elements of the Plan and the Debtors have
exercised reasonable business judgment in determining which documents and agreements to enter
into and have provided sufficient and adequate notice of such documents and agreements.
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T. Good Faith Solicitation (11 U.S.C. § 1125(e))
62. The Debtors have proposed the Plan in good faith, with the legitimate and honest
purpose of maximizing the value of the Debtors’ Estates for the benefit of their stakeholders. The
Plan accomplishes this goal. Accordingly, the Debtors, the Released Parties, and the Exculpated
Parties have been, are, and will continue to be acting in good faith if they proceed to:
(a) consummate the Plan and the agreements, transactions, transfers, and other actions
contemplated thereby, regardless of whether such agreements, transactions, transfers, and other
actions are expressly authorized by this Confirmation Order; and (b) take any actions authorized
and directed or contemplated by this Confirmation Order. Therefore, the Plan has been proposed
in good faith to achieve a result consistent with the objectives and purposes of the
Bankruptcy Code and the aforementioned parties have also acted in good faith within the meaning
of section 1125(e) of the Bankruptcy Code and are entitled to the protections afforded by section
1125(e) of the Bankruptcy Code and the Exculpation provision set forth in Article VIII.D of the
Plan. 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 votes and distributions 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 acceptance of rejections of the Plan or such distributions
made pursuant to the Plan.
U. Executory Contracts and Unexpired Leases
63. Pursuant to sections 365 and 1123(b)(2) of the Bankruptcy Code, the Plan provides
for the assumption or rejection of certain Executory Contracts and Unexpired Leases, effective as
of the Effective Date except as otherwise provided in the Plan or the Asset Purchase Agreements.
The Debtors’ determinations regarding the assumption or rejection of Executory Contracts and
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Unexpired Leases are based on and within the sound business judgment of the Debtors, are
necessary to the implementation of the Plan, and are in the best interests of the Debtors, their
Estates, Holders of Claims and Interests, and other parties in interest in these Chapter 11 Cases.
ORDER
BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS
THEREFORE ORDERED, JUDGED, AND DECREED THAT:
V. Findings of Fact and Conclusions of Law
64. The above-referenced findings of fact and conclusions of law are hereby
incorporated by reference as though fully set forth in this Confirmation Order and constitute
findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable by
Bankruptcy Rule 9014. To the extent that any finding of fact is determined to be a conclusion of
law, it is deemed so, and vice versa.
W. Final Approval of Disclosure Statement
65. The Disclosure Statement shall be, and hereby is, approved on a final basis as
containing adequate information within the meaning of section 1125 of the Bankruptcy Code and
sufficient information of a kind necessary to satisfy the disclosure requirements of any applicable
non-bankruptcy laws, rules, and regulations.
X. Confirmation of the Plan
66. The Plan, attached hereto as Exhibit A, including all exhibits thereto, shall be, and
hereby is, confirmed under section 1129 of the Bankruptcy Code. The Debtors are authorized to
enter into and execute all documents and agreements related to the Plan (including all exhibits and
attachments thereto and documents referred to therein, including the Plan Supplement), and the
execution, delivery, and performance thereafter by the Wind-Down Debtor, are hereby approved
and authorized. The Debtors and the Wind-Down Debtor, as applicable, are authorized to take all
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actions necessary or appropriate to enter into, implement, and consummate the contracts,
instruments, releases, leases, indentures, and other agreements or documents created in connection
with the Plan, including without limitation entry into any agreements contained in the Plan
Supplement, as applicable, as may be modified by the Debtors in their business judgment subject
to the terms and conditions of the Plan. The terms of the Plan (including the Plan Supplement)
shall be effective and binding as of the Effective Date.
67. The failure to include or refer to any particular article, section, or provision of the
Plan, the Plan Supplement or any related document, agreement, or exhibit does not impair the
effectiveness of that article, section, or provision; it being the intent of the Bankruptcy Court that
the Plan, the Plan Supplement, and any related document, agreement, or exhibit are approved in
their entirety.
Y. Objections
68. To the extent that any objections (including any reservations of rights contained
therein) to Confirmation of the Plan or approval of the Disclosure Statement have not been
withdrawn, waived, or settled before entry of this Confirmation Order, are not cured by the relief
granted in this Confirmation Order, or have not been otherwise resolved, all such objections
(including any reservation of rights contained therein) are hereby overruled in their entirety and
on the merits in all respects.
Z. The Releases, Injunction, Exculpation, and Related Provisions Under the Plan
69. The release, exculpation, injunction, and related provisions set forth in Article VIII
of the Plan are incorporated herein in their entirety, are hereby approved and authorized in their
entirety, and shall be immediately effective and binding upon the Effective Date without further
action or notice by this Bankruptcy Court, any of the Parties subject to such provisions, or any
other party, including, but not limited to:
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a. Liens. The release of liens provisions set forth in Article VIII.A of the Plan are hereby
approved.
b. Releases by the Debtors. The Debtor Release provisions set forth in Article VIII.B of
the Plan are hereby approved.
c. Third-Party Releases. The Third-Party Release provisions set forth in Article VIII.C
of the Plan are hereby approved.
d. Exculpation. The Exculpation provisions set forth in Article VIII.D of the Plan are
hereby approved.
e. Injunction. The Injunction provisions set forth in Article VIII.E of the Plan are hereby
approved.
AA. Classifications of Claims and Interests
70. The terms of the Plan shall govern the classification of Claims and Interests for
purposes of the distributions to be made thereunder. The classifications set forth on the Ballots
tendered to or returned by the Holders of Claims or Interests in connection with voting on the Plan:
(a) were set forth thereon solely for purposes of voting to accept or reject the Plan; (b) do not
necessarily represent, and in no event shall be deemed to modify or otherwise affect, the actual
classification of Claims and Interests under the Plan for distribution purposes; (c) may not be relied
upon by any Holder of a Claim or Interest as representing the actual classification of such Claim
or Interest under the Plan for distribution purposes; and (d) shall not be binding on the Debtors
except for voting purposes.
BB. Plan Supplement
71. The documents contained in the Plan Supplement, and any amendments,
modifications, and supplements thereto (including all exhibits and attachments thereto and
documents referred to in the Plan Supplement), and the execution, delivery, and performance
thereof by the Debtors, the Wind-Down Debtor, and their successors are authorized when they are
finalized, executed, and delivered. Subject to Article X of the Plan and the terms of the Committee
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Settlement, without further order or authorization of this Bankruptcy Court, the Debtors, the Wind-
Down Debtor, and their successors are authorized and empowered to make all modifications to all
documents included as part of the Plan Supplement that are consistent with the Plan. Execution
versions of the documents comprising or contemplated by the Plan Supplement shall constitute
legal, valid, binding, and authorized obligations of the respective parties thereto, enforceable in
accordance with their terms and, to the extent applicable, shall create all mortgages, Liens, deeds
of trust, pledges, and security interests purported to be created thereby to the extent set forth in this
Confirmation Order.
CC. Restructuring Transactions
72. On or before the Effective Date, the applicable Debtors or the Wind-Down Debtor
shall enter into any transaction and shall take any actions as may be necessary or appropriate to
effect the transactions described herein, including, as applicable, consummation of the Sale
Transactions pursuant to the Asset Purchase Agreements or any transactions set forth in the
Restructuring Transactions Memorandum, the issuance of all certificates and other documents
required to be issued pursuant to the Plan, one or more intercompany mergers, consolidations,
amalgamations, arrangements, continuances, restructurings, conversions, dispositions,
dissolutions, transfers, liquidations, spinoffs, intercompany sales, purchases, contributions,
distributions, novations, setoffs, or other corporate transactions (collectively, the “Restructuring
Transactions”). The actions to implement the Restructuring Transactions may include: (1) the
execution and delivery of appropriate agreements or other documents of merger, consolidation,
amalgamation, arrangement, continuance, restructuring, conversion, disposition, dissolution,
transfer, liquidation, spinoff, sale, or purchase containing terms that are consistent with the terms
of the Plan and Asset Purchase Agreements and that satisfy the applicable requirements of
applicable Law and any other terms to which the applicable Entities may agree; (2) the execution
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and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any
asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Plan
and having other terms for which the applicable Entities agree; (3) the filing of appropriate
certificates or articles of incorporation, reincorporation, formation, merger, consolidation,
conversion, amalgamation, arrangement, continuance, or dissolution pursuant to applicable state
or provincial law; and (4) all other actions that the applicable Entities determine to be necessary
or appropriate, including making filings or recordings that may be required by applicable Law in
connection with the Plan. To the extent practicable and if applicable, the Restructuring
Transactions contemplated herein shall be structured so as to obtain the most beneficial tax
structure for the Debtors subject to the consent of the Required DIP Lenders and the applicable
Purchasers. The Confirmation Order shall, and shall be deemed to, pursuant to sections 363 and
1123 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or
appropriate to effectuate any transaction described in, contemplated by, or necessary to effectuate
the Plan.
DD. Sources of Consideration for Plan Distribution
73. The Debtors shall fund or make distributions under the Plan, subject to the terms of
the Sale Orders and the Asset Purchase Agreements, as applicable, from: (i) the proceeds from the
Sale Transactions (after, for the avoidance of doubt, giving effect to the DIP Paydown Amount,
payment in full of the Prepetition First Lien RCF Loan Paydown Amount and funding the Wind-
Down Debtor Account in accordance with the Wind-Down Budget); (ii) the Debtors’ Cash on
hand; and (iii) in accordance with the Wind-Down Budget, proceeds from the Wind Down,
including the Wind-Down Debtor Assets. The Allowed DIP Claims shall be satisfied in
accordance with Article II.C. of the Plan.
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EE. Wind-Down Debtor
74. The Debtors shall continue in existence after the Effective Date as the Wind-Down
Debtor solely for the purposes of (i) winding down the Debtors’ businesses and affairs as
expeditiously as reasonably possible, and liquidating all Wind-Down Debtor Assets, (ii)
performing any obligations under any Transition Services Agreements entered into before, on, or
after the Effective Date, including pursuant to any of the Asset Purchase Agreements;
(iii) enforcing and prosecuting Claims, interests, rights, and privileges under the Retained Causes
of Action in an efficacious manner and only to the extent the benefits of such enforcement or
prosecution are reasonably believed to outweigh the costs associated therewith; (iv) resolving any
Disputed Claims, (v) paying or otherwise satisfying Allowed Claims, (vi) filing appropriate tax
returns (and, for the avoidance of doubt, may pursue any refunds, credits, or other tax benefits to
which the Debtors and/or the Wind-Down Debtor are entitled and file any tax returns or other
filings as are required in connection therewith), (vii) complying with its continuing obligations
under the Asset Purchase Agreements, if any, (viii) otherwise administering the Plan in an
efficacious manner, and (ix) undertaking any restructuring transactions as are necessary or
advisable in connection with the foregoing. The Wind-Down Debtor shall be deemed to be
substituted as the party-in-lieu of the Debtors in all matters, including (x) motions, contested
matters, and adversary proceedings pending in the Bankruptcy Court and (y) all matters pending
in any courts, tribunals, forums, or administrative proceedings outside of the Bankruptcy Court, in
each case without the need or requirement for the Plan Administrator to File motions or
substitutions of parties or counsel in each such matter.
75. On the Effective Date, the Wind-Down Debtor Assets shall vest in the Wind-Down
Debtor for the primary purpose of liquidating the Wind-Down Debtor Assets and winding down
the Debtors’ Estates, with no objective to continue or engage in the conduct of a trade or business,
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other than performance under the Transition Services Agreements. The Wind-Down Debtor will,
in an expeditious but orderly manner, subject to the requirements of the Transition Services
Agreements, liquidate and convert to Cash the Wind-Down Debtor Assets, make timely
distributions pursuant to the Plan and Confirmation Order, and not unduly prolong its duration.
The Wind-Down Debtor Assets shall be held free and clear of all Liens, Claims, and Interests of
Holders of Claims and Interests, except as otherwise provided in the Plan. The Wind-Down Debtor
shall be deemed to be fully bound by the terms of the Plan and the Confirmation Order.
FF. Plan Administrator3
76. On the Effective Date, the authority, power, and incumbency of the persons acting
as directors and officers of each of the Debtors shall be deemed to have been terminated and such
persons shall be deemed to have resigned, solely in their capacities as such, and the Plan
Administrator shall be appointed by each Debtor, with the consent of the Required DIP Lenders,
as the sole director and the sole officer of such Wind-Down Debtor and shall succeed to the powers
of such Debtor’s directors and officers. The Plan Administrator shall be the sole representative of
and shall act for each Wind-Down Debtor in the same fiduciary capacity as applicable to officers
and members of a board of directors or managers, subject to the provisions hereof (and all
Governance Documents are deemed amended by the Plan to permit and authorize the same). For
the avoidance of doubt, the Plan Administrator shall administer the Wind-Down and terms of the
Plan in accordance with the Wind-Down Budget and shall have the authority to authorize, make,
or cause to be made payments in accordance the Wind-Down Budget to satisfy certain claims and
3 Notwithstanding anything herein to the contrary and as qualified in the Plan Administrator Agreement, the Plan
Administrator’s Wind-Down of the Wind-Down Debtor Assets and any payments, distributions, or disbursements
that the Plan Administrator seeks to make or (cause to be made) as part of the Wind-Down shall be subject in all
respects to the Wind-Down Budget and the terms of and applicable consent rights set forth in the Plan and this
Confirmation Order, including, for the avoidance of doubt and without limitation, any Distributable Value.
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liabilities of the Debtors’ non-Debtor Affiliates as deemed necessary in the Plan Administrator’s
reasonable judgment; provided that in no event shall payments to satisfy claims or liabilities of the
Debtors’ non-Debtor Affiliates solely under the Wind-Down Budget exceed $12 million in the
aggregate until such time as all Allowed Administrative Claims have been satisfied or such time
as the Debtors or the Wind-Debtor Debtor, as applicable, has reserved sufficient funds solely under
the Wind-Down Budget to satisfy all such Allowed Administrative Claims. The Plan
Administrator shall use commercially reasonable efforts to adhere to (or outperform) the Wind-
Down Budget; provided that the Plan Administrator shall have the authority to reallocate funding
between line items within the Wind-Down Budget without further order of the Bankruptcy Court;
provided, however, that in no event shall the Debtors, the Wind-Down Debtor, or the Plan
Administrator, as applicable, utilize funds solely under the Wind-Down Budget in excess of $12
million in the aggregate to satisfy claims or liabilities of the Debtors’ non-Debtor Affiliates unless
all Allowed Administrative Claims have been satisfied or such time as the Debtors or the Wind-
Down Debtor, as applicable, reserved sufficient funds solely under the Wind-Down Budget
sufficient to satisfy all such Allowed Administrative Claims.
77. The Plan Administrator shall have the right to retain the services of attorneys,
accountants, and other professionals that, in the discretion of the Plan Administrator, are necessary
to assist the Plan Administrator in the performance of his or her duties. The reasonable fees and
expenses of such professionals shall be paid by the Wind-Down Debtor, upon the monthly
submission of statements to the Plan Administrator and in accordance with the Wind-Down
Budget. The payment of the reasonable fees and expenses of the Plan Administrator’s retained
professionals shall be made in the ordinary course of business and shall not be subject to the
approval of the Bankruptcy Court.
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GG. Tax Returns
78. After the Effective Date, the Plan Administrator shall complete and file all final or
otherwise required federal, state, and local tax returns for each of the Debtors and the Wind-Down
Debtor (including, as applicable, with respect to tax refunds or credits), and, pursuant to section
505(b) of the Bankruptcy Code, may request an expedited determination of any unpaid tax liability
of such Debtor or its Estate for any tax incurred during the administration of such Debtor’s Chapter
11 Case, as determined under applicable tax laws.
HH. Dissolution of the Wind-Down Debtor
79. Upon a certification to be Filed with this Bankruptcy Court by the Plan
Administrator of all distributions having been made and completion of all its duties under the Plan
and entry of a final decree closing the last of these Chapter 11 Cases, the Wind-Down Debtor shall
be deemed to be dissolved without any further action by the Wind-Down Debtor, including the
Filing of any documents with the secretary of state for the state in which the Wind-Down Debtor
is formed or any other jurisdiction. The Plan Administrator, however, shall have authority to take
all necessary actions to dissolve the Wind-Down Debtor in and withdraw the Wind-Down Debtor
from applicable states.
II. Cancellation of Securities and Agreements
80. On the Effective Date, except as otherwise specifically provided for in the Plan:
(1) the obligations of the Debtors under the Prepetition Loan Documents and any other certificate,
Security, share, note, bond, indenture, purchase right, option, warrant, or other instrument or
document directly or indirectly evidencing or creating any indebtedness or obligation of or
ownership interest in the Debtors giving rise to any Claim or Interest (except (i) such certificates,
notes, or other instruments or documents evidencing indebtedness or obligation of or ownership
interest in the Debtors that are Reinstated pursuant to the Plan and (ii) any indemnification
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obligations set forth in Article V.E of the Plan) shall be cancelled solely as to the Debtors and their
Affiliates, and the Wind-Down Debtor shall not have any continuing obligations thereunder; and
(2) the obligations of the Debtors and their Debtor affiliates pursuant, relating, or pertaining to any
agreements, indentures, certificates of designation, bylaws, or certificate or articles of
incorporation or similar documents governing the shares, certificates, notes, bonds (but not
including any surety bonds issued on behalf of any of the Debtors), indentures, purchase rights,
options, warrants, or other instruments or documents evidencing or creating any indebtedness or
obligation of or ownership interest in the Debtors (except such agreements, certificates, notes, or
other instruments evidencing indebtedness or obligation of or ownership interest in the Debtors
that are specifically Reinstated pursuant to the Plan) shall be released and discharged.
Notwithstanding the foregoing, no Executory Contract or Unexpired Lease that has been, or will
be, assumed pursuant to section 365 of the Bankruptcy Code and Article V.A and/or V.B of the
Plan shall be terminated or cancelled on the Effective Date.
JJ. Corporate Action
81. Upon the Effective Date, all actions contemplated under the Plan, regardless of
whether taken before, on or after the Effective Date, shall be deemed authorized and approved in
all respects, including: (1) selection of the Plan Administrator; (2) implementation of the
Restructuring Transactions; (3) consummation of the Sale Transactions under the Asset Purchase
Agreements; (4) funding of all applicable reserves, escrows, and accounts; (5) implementation of
the Wind-Down; and (6) all other actions contemplated under the Plan (whether to occur before,
on, or after the Effective Date). All matters provided for in the Plan or deemed necessary or
desirable by the Debtors before, on, or after the Effective Date involving the corporate structure
of the Debtors or the Wind-Down Debtor, as applicable, and any corporate action required by the
Debtors or the Wind-Down Debtor, as applicable, in connection with the Plan or corporate
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structure of the Debtors or Wind-Down Debtor shall be deemed to have occurred and shall be in
effect on the Effective Date, without any requirement of further action by the security holders,
directors, managers, or officers of the Debtors or the Wind-Down Debtor, as applicable. Before,
on, or after the Effective Date, the appropriate officers of the Debtors or the Wind-Down Debtor,
as applicable, shall be authorized to issue, execute, and deliver the agreements and documents,
securities, and instruments contemplated under the Plan (or necessary or desirable to effect the
transactions contemplated under the Plan) in the name of and on behalf of the Wind˗Down Debtor.
The authorizations and approvals contemplated by Article IV.K of the Plan shall be effective
notwithstanding any requirements under non-bankruptcy law.
KK. Effectuating Documents; Further Transactions
82. On and after the Effective Date, the Plan Administrator and the Agents may issue,
execute, deliver, file, or record such contracts, Securities, instruments, releases, and other
agreements or documents and take such actions as may be necessary or appropriate to effectuate,
implement, and further evidence the terms and conditions of the Plan, this Confirmation Order,
and the Restructuring Transactions, without the need for any approvals, authorization, or consents
except for those expressly required pursuant to the Plan of this Confirmation Order.
LL. Section 1146 Exemption
83. To the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any
transfers (whether from a Debtor to the Wind-Down Debtor, or to any other Person or from any of
the Wind Down-Debtor to the Liquidating Trust or any other Person) of property under the Plan
or pursuant to: (1) the issuance, distribution, transfer, or exchange of any debt, equity security,
property, or other interest in the Debtors or the Wind-Down Debtor; (2) the Restructuring
Transactions; (3) any Sale Transactions; (4) the creation, modification, consolidation, termination,
refinancing, and/or recording of any mortgage, deed of trust, or other security interest, or the
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securing of additional indebtedness by such or other means; (5) the making, assignment, or
recording of any lease or sublease; or (6) the making, delivery, or recording of any deed or other
instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds,
bills of sale, assignments, or other instrument of transfer executed in connection with any
transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject
to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage
tax, real estate or bulk transfer tax, mortgage recording tax, Uniform Commercial Code Filing or
recording fee, regulatory Filing or recording fee, or other similar tax or governmental assessment,
and upon entry of this Confirmation Order, the appropriate state or local governmental officials or
agents shall forgo the collection of any such tax or governmental assessment and accept for Filing
and recordation any of the foregoing instruments or other documents without the payment of any
such tax, recordation fee, or governmental assessment. All Filing or recording officers (or any
other Person with authority over any of the foregoing), wherever located and by whomever
appointed, shall comply with the requirements of section 1146(a) of the Bankruptcy Code, shall
forgo the collection of any such tax or governmental assessment, and shall accept for Filing and
recordation any of the foregoing instruments or other documents without the payment of any such
tax or governmental assessment. No provision of the Plan or of the Confirmation Order shall be
construed to broaden the tax exemption under section 1146(a) beyond what the statute allows.
MM. Director and Officer Liability Insurance; Other Insurance
84. Any D&O Liability Insurance Policies shall be assumed by the Debtors on behalf
of the applicable Debtor and assigned to the Wind-Down Debtor effective as of the Effective Date,
pursuant to sections 105, 365, and 1123 of the Bankruptcy Code, unless such insurance policy
previously was rejected by the Debtors or the Estates pursuant to a Final Order or is the subject of
a motion to reject pending on the Effective Date, and coverage for defense and indemnity under
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any such policies shall remain available to all individuals within the definition of “Insured” in any
such policies, subject to the terms and conditions of such D&O Liability Insurance Policies. In
addition, on and after the Effective Date, all officers, directors, agents, or employees who served
in such capacity at any time before the Effective Date shall be entitled to the full benefits of any
D&O Liability Insurance Policy in effect or purchased as of the Effective Date for the full term of
such policy regardless of whether such officers, directors, agents, and/or employees remain in such
positions on or after the Effective Date, in each case, to the extent set forth in such policies.
NN. Treatment of Executory Contracts and Unexpired Leases
85. The provisions governing the treatment of Executory Contracts and Unexpired
Leases set forth in Article V of the Plan (including the procedures regarding TSA Contracts in
Article V.B of the Plan, or any and all disputes concerning the assumption, assumption and
assignment, or rejection, as applicable, of such TSA Contracts, Executory Contracts, and
Unexpired Leases) shall be, and hereby are, approved in their entirety.
86. On the Effective Date, except as otherwise provided in the Plan or in the Sale
Orders, each Executory Contract or Unexpired Lease not previously assumed, assumed and
assigned, or rejected shall be deemed automatically rejected, pursuant to sections 365 and 1123 of
the Bankruptcy Code, unless such Executory Contract or Unexpired Lease: (1) a TSA Contract
(subject to the provisions set forth in Article V.B of the Plan in all respects); (2) the subject of a
motion to assume (or assume and assign) such Executory Contract that is pending on the
Confirmation Date; (3) a contract, instrument, release, indenture, or other agreement or document
entered into in connection with the Plan; (4) an Insurance Policy; (5) an Asset Purchase
Agreement; or (6) to be assumed by the Debtors and assigned to any Purchaser in connection with
any Sale Transaction and pursuant to any Sale Transaction Documentation.
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87. Entry of this Confirmation Order by the Bankruptcy Court shall constitute a
Final Order approving the assumptions, assumptions and assignments, or rejections of the
Executory Contracts or Unexpired Leases pursuant to the Plan; provided that neither the Plan nor
this Confirmation Order is intended to or shall be construed as limiting the Debtors’ authority
under the Sale Orders to assume and assign Executory Contracts and Unexpired Leases to the
Purchasers in accordance with the Asset Purchase Agreements. Any motions to assume Executory
Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by this
Bankruptcy Court on or after the Effective Date by a Final Order but may be withdrawn, settled,
or otherwise prosecuted by the Wind-Down Debtor. Each Executory Contract and Unexpired
Lease assumed pursuant to Article V of the Plan or by any order of this Bankruptcy Court, which
has not been assigned to a third party prior to the Confirmation Date, if any, shall revest in and be
fully enforceable by the Wind-Down Debtor in accordance with its terms, except as such terms are
modified by the provisions of the Plan or any order of this Bankruptcy Court authorizing and
providing for its assumption under applicable federal law.
OO. Provisions Governing Distributions
88. The procedures governing distributions contained in Article VI of the Plan shall be,
and hereby are, approved in their entirety. Except as otherwise set forth in the Plan or this
Confirmation Order, the Distributions under the Plan shall be made by the Disbursing Agent, or
the Entity or Entities selected by the Debtors or the Wind-Down Debtor, as applicable, to make or
facilitate distributions contemplated under the Plan, including the Plan Administrator, if
applicable.
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PP. Procedures for Resolving Disputed, Contingent, and Unliquidated Claims or Equity
Interests
89. The procedures for resolving disputed, contingent, and unliquidated claims or
equity interests contained in Article VII of the Plan shall be, and hereby are, approved in their
entirety.
QQ. Conditions to Effective Date
90. The provisions governing the conditions precedent to the Effective Date set forth
in Article IX of the Plan shall be, and hereby are, approved in their entirety. The Debtors are
authorized to consummate the Plan at any time after the entry of this Confirmation Order, subject
to satisfaction or waiver of such provisions, subject in all events to the Committee’s and Required
DIP Lenders’ consent rights as set forth in Article IX.B of the Plan.
RR. Retention of Jurisdiction
91. The provisions governing the retention of jurisdiction set forth in Article XI of the
Plan shall be, and hereby are, approved in their entirety. This Bankruptcy Court may, and upon
the Effective Date shall, retain exclusive jurisdiction over the matters arising in, and under, and
related to, these Chapter 11 Cases, as set forth in Article XI of the Plan.
SS. Immediate Binding Effect
92. Subject to Article IX of the Plan and notwithstanding Bankruptcy Rules 3020(e),
6004(h), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of the Plan
and the Plan Supplement shall be immediately effective and enforceable to the fullest extent
permitted under the Bankruptcy Code and applicable nonbankruptcy law and deemed binding upon
the Debtors, the Wind-Down Debtor, and any and all Holders of Claims or Interests (irrespective
of whether their Claims or Interests are deemed to have accepted the Plan), the Purchasers and its
affiliates, all Entities that are parties to or are subject to the settlements, compromises, releases,
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and injunctions described in the Plan, each Entity acquiring property under the Plan and any and
all non-Debtor parties to Executory Contracts and Unexpired Leases with the Debtors. All Claims
and debts shall be as fixed, adjusted, or compromised, as applicable, pursuant to the Plan regardless
of whether any Holder of a Claim or debt has voted on the Plan.
TT. Additional Documents
93. On or before the Effective Date, the Debtors may File with the Bankruptcy Court
such agreements and other documents as may be necessary or appropriate to effectuate and further
evidence the terms and conditions of the Plan. The Debtors or Wind-Down Debtor, as applicable,
and all Holders of Claims or Interests receiving distributions pursuant to the Plan, and all other
parties in interest may, from time to time, prepare, execute, and deliver any agreements or
documents and take any other actions as may be necessary or advisable to effectuate the provisions
and intent of the Plan.
UU. Payment of Statutory Fees
94. Quarterly Fees due and payable before the Effective Date shall be paid by the
Debtors in full in Cash when due and payable. On and after the Effective Date the Debtors or the
Wind-Down Debtors (or the Disbursing Agent on behalf of the Wind-Down Debtors), as
applicable, shall pay or cause to be paid any and all Quarterly Fees in full in Cash when due and
payable, and shall File with the Bankruptcy Court quarterly reports using UST Form 11-PCR.
Each Debtor or Wind-Down Debtor (or the Disbursing Agent on behalf of the Wind-Down
Debtors), as applicable, and the Liquidating Trust (if established), shall remain obligated to pay
quarterly fees to the U.S. Trustee until the earliest of the applicable Debtor’s or Wind-Down
Debtor’s Chapter 11 Case being closed, dismissed, or converted to a case under chapter 7 of the
Bankruptcy Code. Notwithstanding anything to the contrary in the Plan or Plan Supplement, (i)
Quarterly Fees are Allowed; (ii) the U.S. Trustee shall not be required to file any proof of claim
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or any other request(s) for payment with respect to Quarterly Fees; and (iii) the U.S. Trustee shall
not be treated as providing any release under the Plan. This Article II.E shall govern and control
to the extent it conflicts with or is in any way inconsistent with any other provision of the Plan or
Plan Supplement.
VV. Reservation of Rights
95. Except as expressly set forth in the Plan, the Plan shall have no force or effect until
entry of this Confirmation Order, and this Confirmation Order shall have no force or effect if the
Effective Date does not occur. None of the Filing of the Plan, any statement or provision contained
in the Plan or the taking of any action by any Debtor with respect to the Plan, the Disclosure
Statement, this Confirmation Order, or the Plan Supplement shall be or shall be deemed to be an
admission or waiver of any rights of any Debtor with respect to the Holders of Claims or Interests
unless and until the Effective Date has occurred.
WW. Notices
96. After the Effective Date, the Wind-Down Debtor may notify Entities that, in order
to continue to receive documents pursuant to Bankruptcy Rule 2002, such Entity must File a
renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective
Date, the Debtors are authorized to limit the list of Entities receiving documents pursuant to
Bankruptcy Rule 2002 to those (i) Entities who have Filed such renewed requests; and (ii) those
Entities whose rights are affected by such documents.
XX. Non-Severability of Plan Provisions Upon Confirmation
97. The provisions of the Plan, including its release, injunction, exculpation and
compromise provisions, are mutually dependent and non-severable. This Confirmation Order shall
constitute a judicial determination 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: (1) valid and
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enforceable pursuant to its terms; (2) integral to the Plan and may not be deleted or modified
without the consent of the Debtors, consistent with the terms set forth herein; and (3) non-severable
and mutually dependent, provided that, notwithstanding the inclusion of the Asset Purchase
Agreements or any documents ancillary thereto in the Plan Supplement, the Sale Transactions
contemplated in the Asset Purchase Agreements are severable from the Plan and this Confirmation
Order, and the non-Confirmation or non-Consummation of the Plan shall not require or result in
the voiding, rescission, reversal, or unwinding of the Sale Transactions contemplated in the Asset
Purchase Agreements or the revocation of the Debtors’ authority under the Sale Orders to
consummate such Sale Transactions.
YY. Governmental Approvals Not Required
98. Except as otherwise specifically provided in this Confirmation Order, this
Confirmation Order shall constitute all approvals and consents required, if any, by the laws, rules,
or regulations of any state or other governmental authority with respect to the implementation or
consummation of the Plan and Disclosure Statement, any documents, instruments, or agreements,
and any amendments or modifications thereto, and any other acts referred to in, or contemplated
by, the Plan and the Disclosure Statement.
ZZ. Recording
99. The Debtors and the Wind-Down Debtor hereby are authorized to deliver a notice
or short form of this Confirmation Order, with the Plan and Asset Purchase Agreements attached
(in a form complying with any applicable non-bankruptcy rules or regulations), to any state or
local recording officer.
AAA. Effect of Conflict Between Plan and Confirmation Order
100. In the event of an inconsistency between the Plan and the Disclosure Statement, the
terms of the Plan shall control in all respects. In the event of an inconsistency between the Plan
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and the Plan Supplement, the terms of the relevant provision in the Plan Supplement shall control
(unless stated otherwise in such Plan Supplement document or in this Confirmation Order). In the
event of an inconsistency between this Confirmation Order and the Plan or Plan Supplement, this
Confirmation Order shall control. Notwithstanding anything in this Confirmation Order, the Plan,
the Plan Supplement or in any other document, all of the consent rights of the Required DIP
Lenders under the Plan shall remain in full force and effect and shall not be, in any way, limited
or impacted by this Confirmation Order and shall supersede, override, and govern in all respect
with respect to any provision set forth in the Plan, the Confirmation Order, any Plan Supplement
document or any other agreement or document related thereto.
BBB. Documents, Mortgages, and Instruments
101. Each federal, state, commonwealth, local, foreign, or other governmental agency is
authorized to accept any and all documents, mortgages, and instruments necessary or appropriate
to effectuate, implement, or consummate the Plan, including the Restructuring Transactions, and
this Confirmation Order.
CCC. Authorization to Consummate
102. The Debtors are authorized to consummate the Plan at any time after the entry of
this Confirmation Order subject to the satisfaction or waiver (by the required parties) of the
conditions precedent to the Effective Date set forth in Article IX of the Plan.
DDD. Debtors’ Actions Post-Confirmation Through the Effective Date
103. During the period from entry of this Confirmation Order through and until the
Effective Date, each of the Debtors shall continue to operate their business as a debtor in
possession, subject to the oversight of this Bankruptcy Court as provided under the Bankruptcy
Code, the Bankruptcy Rules, and this Confirmation Order and any order of this Bankruptcy Court
that is in full force and effect. During such period, the Debtors and all other parties in interest
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under the Plan are authorized to execute such documents, agreements, or filings that are
contemplated by the Plan, the Plan Supplement or the Restructuring Transactions without any
further order of this Bankruptcy Court or corporate action, and to take any actions necessary or
advisable or appropriate to implement the documents, agreements, or filings that are contemplated
by the Plan, the Plan Supplement, or the Restructuring Transactions, in each case subject to the
terms and conditions of the Plan. Notwithstanding anything to the contrary herein or in the Plan,
upon entry of this Confirmation Order, the Debtors shall be released from any and all reporting
obligations arising under any order of the Bankruptcy Court entered in connection with any of the
First Day Pleadings.
EEE. Notices of Confirmation and Effective Date
104. The Wind-Down Debtor shall serve notice of entry of this Confirmation Order,
substantially in the form attached hereto as Exhibit B (the “Confirmation Order Notice”) in
accordance with Bankruptcy Rules 2002 and 3020(c), on all known Holders of Claims and
Interests and the Bankruptcy Rule 2002 service list within five Business Days after the Effective
Date. As soon as reasonably practicable after the Effective Date, the Wind-Down Debtor shall file
notice of the Effective Date and shall serve a copy of the same on the above-referenced parties.
The notice of the Effective Date may be included in the Confirmation Order Notice.
Notwithstanding the above, no notice of Confirmation or Consummation or service of any kind
shall be required to be mailed or made upon any Entity to whom the Debtors mailed notice of the
Confirmation Hearing, but received such notice returned marked “undeliverable as addressed,”
“moved, left no forwarding address,” or “forwarding order expired,” or similar reason, unless the
Debtors have been informed in writing by such Entity, or are otherwise aware, of that Entity’s new
address. Further, the Wind-Down Debtor shall be permitted to serve the Confirmation Order
Notice by electronic mail where available.
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105. After the Effective Date, the Plan Administrator or Wind-Down Debtor may notify
parties that, in order to continue to receive service of documents pursuant to Bankruptcy Rule
2002, such party must File a renewed request to receive service of documents pursuant to
Bankruptcy Rule 2002. After the Effective Date, the Plan Administrator or Wind-Down Debtor,
as applicable, is authorized to limit the list of parties receiving such service pursuant to Bankruptcy
Rule 2002 to those parties who have Filed such renewed requests; provided that the Notice of the
Effective Date discloses that parties who wish to continue to receive service of documents must
file a renewed request for service under Bankruptcy Rule 2002.
FFF. Return of Adequate Assurance Deposits.
106. On the Effective Date, all funds in the Adequate Assurance Account as defined and
established by the Debtors in the Final Order (I) Approving the Debtors' Proposed Adequate
Assurance of Payment for Future Utility Services, (II) Approving the Debtors' Proposed
Procedures for Resolving Additional Assurance Requests, (III) Prohibiting Utility Providers from
Altering, Refusing or Discontinuing Services, and (IV) Granting Related Relief [Docket No. 221]
shall be returned to the Wind-Down Debtor.
GGG. Dissolution of Statutory Committees
107. On the Effective Date, any statutory committee appointed in the Chapter 11 Cases,
including the Committee, shall dissolve and members thereof shall be released and discharged
from all rights and duties from or related to the Chapter 11 Cases, except (a) in connection with
applications for compensation and objections thereto, and (b) in connection with the Trudell APA,
solely to the extent that the Trudell Sale Transaction has not been consummated by the Trudell
Sale Outside Date. The Wind-Down Debtors shall no longer be responsible for paying any fees
or expenses incurred by any statutory committee, including the Committee, after the Effective
Date, except in connection with (x) applications for payment of any fees or expenses for services
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rendered prior to the Effective Date that are Allowed by the Bankruptcy Court; (y) objections to
applications for payment of fees and expenses rendered prior to the Effective Date; and (z) fees
incurred in connection with (b).
HHH. Provision Regarding SunMed Group Holdings, LLC
108. Notwithstanding anything contained in this Confirmation Order or the Plan, the
“Transferred Assets,” as defined in that certain Stock and Asset Purchase Agreement dated as of
March 27, 2023 (the “SAPA”), by and between Vyaire Holding Company and SunMed Group
Holdings, LLC d/b/a AirLife (“AirLife”), do not and shall not (i) constitute property of the
Debtors’ estates, (ii) vest with any Wind-Down Debtor, or (iii) constitute a Wind-Down Debtors’
Asset or Liquidating Trust Asset. Notwithstanding anything contained in this Order or the Plan,
to the extent any Transferred Assets remain with, or are disbursed, transferred, or remitted to the
Debtors, the Wind-Down Debtors, or the Plan Administrator following entry of the Confirmation
Order or the Effective Date, the Plan Administrator shall deliver all such Transferred Assets to
AirLife within five (5) business days of discovery of such remittance or receipt of notice from
AirLife to the Debtors, the Wind-Down Debtors, or the Plan Administrator. For the avoidance of
doubt, nothing contained in this Confirmation Order or the Plan shall release the Debtors, the
Wind-Down Debtors, the Plan Administrator or any other Released Party from their obligations to
return the Transferred Assets to AirLife as set forth in this paragraph 108, and AirLife shall not
release or relinquish any rights, claims, interests, Causes of Action held or otherwise maintained
by AirLife in the Transferred Assets arising under or relating to the SAPA irrespective of whether
AirLife elects to opt in to granting the releases set forth in Article VIII.C of the Plan.
III. Provision Regarding the United States Trustee
109. Notwithstanding that Amazon Web Services, Inc., Fischer USA, Inc., and
Trelleborg Sealing Solutions US Inc. (the “Opt-In Parties”) opted-in to the Third-Party Release,
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the Opt-In Parties shall only be deemed to release the Debtors and Wind-Down Debtors under
Article VIII.C. of the Plan for so long as the injunction under Article VIII.E. of the Plan continues
to apply to the Debtors and Wind-Down Debtors as Released Parties. For the avoidance of doubt,
notwithstanding this paragraph 109, the injunction under Article VIII.C. provision applies to the
Opt-In Parties with respect to the Debtors and Wind-Down Debtors as Exculpated Parties.
JJJ. Provision Regarding the United States
110. Notwithstanding any provision to the contrary in the Plan, Plan Supplement, this
Confirmation Order, or any documents implementing the Plan, Plan Supplement, or this
Confirmation Order (collectively, “Documents”), as to the United States, nothing in the
Documents shall: (1) discharge, release, enjoin, impair or otherwise preclude (a) any liability to
the United States that is not a “claim” within the meaning of section 101(5) of the Bankruptcy
Code (“claim”), (b) any claim of the United States arising after the Effective Date, or (c) any
liability of any entity or person under police or regulatory statutes or regulations to any
Governmental Unit (as defined by section 101(27) of the Bankruptcy Code) as the owner, lessor,
lessee or operator of property or rights to property that such entity owns, operates or leases after
the Effective Date; (2) release, nullify, preclude or enjoin the enforcement of any police or
regulatory power; (3) modify the scope of Bankruptcy Code Section 525; (4) authorize the
assumption, sale, assignment or other transfer of any federal (i) grants, (ii) grant funds, (iii)
contracts, (iv) property, including but not limited to, intellectual property and patents, (v) leases,
(vi) agreements, including but not limited to, any Medicare Coverage Gap Discount Program
Agreement, or other interests of the federal government (collectively, “Federal Interests”) without
compliance by the Debtors and the Purchaser with all terms of the Federal Interests and with all
applicable non-bankruptcy law; (5) be interpreted to set cure amounts or to require the United
States to novate, approve or otherwise consent to the assumption, transfer or assignment of any
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Federal Interests; (6) authorize the assumption, transfer or assignment of any governmental (i)
license, (ii) permit, (iii) registration, (iv) authorization or (v) approval, or the discontinuation of
any obligation thereunder, without compliance with all applicable legal requirements, obligations
and approvals under non-bankruptcy laws; (7) confer exclusive jurisdiction to the Bankruptcy
Court with respect to the Federal Interests, claims, liabilities and Causes of Action, except to the
extent set forth in 28 U.S.C. § 1334 (as limited by any other provisions of the United States Code);
(8) waive, alter or otherwise limit the United States’ property rights with respect to the Federal
Interests, including but not limited to, inventory, patents, intellectual property, licenses, and data;
(9) release, exculpate, enjoin, impair or discharge any non-Debtor from any claim, liability, suit,
right or Cause of Action of the United States; (10) affect any setoff or recoupment rights of the
United States and such rights are preserved; (11) require the United States to file an administrative
claim in order to receive payment for any liability described in Section 503(b)(1)(B) and (C)
pursuant to Section 503(b)(1)(D) of the Bankruptcy Code; (12) constitute an approval or consent
by the United States without compliance with all applicable legal requirements and approvals
under non-bankruptcy law; (13) be construed as a compromise or settlement of any liability, claim,
Cause of Action or interest of the United States; (14) modify the scope of sections 505, 1145 and
502 of the Bankruptcy Code; (15) cause rejection damage claims to have to be filed before the
government bar date or alter the treatment of such rejection claims under the Bankruptcy Code; or
(16) enjoin or estop the United States from asserting against the Debtors claims, liabilities and
obligations assumed by the Purchaser that the United States would otherwise be entitled to assert
against the Debtors and the Debtors’ estates under applicable law if such claims, liabilities and
obligations are not satisfied by the Purchaser.
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KKK. Provision Regarding Covington & Burling LLP and Reed Smith LLP
111. Nothing in Article IX.C or any other provision of the Plan or Confirmation Order,
shall affect the attorney’s liens and ownership interests asserted by Covington & Burling LLP and
Reed Smith LLP (“Law Firms”), as counsel to Vyaire Medical, Inc. and Vyaire Holding Company,
in the claims asserted in that certain insurance coverage action pending in the Supreme Court of
the State of New York (Index No. 652428/2020) (“Coverage Claims”), the related attorney files,
and any proceeds resulting from the Coverage Claims. For the avoidance of doubt, nothing in this
Confirmation Order shall be deemed a finding or determination as to whether any such liens or
ownership interests exists. Both the Law Firms and the Debtors and/or Wind-Down Debtors
reserve all rights and defenses with respect to such claims, liens, and ownership interests.
LLL. Provision Regarding Texas Comptroller of Public Accounts
112. Notwithstanding anything else to the contrary in the Plan or this Confirmation
Order, the Texas Comptroller of Public Accounts (the “Texas Comptroller”) reserves the following
rights: (1) any statutory or common law setoff rights in accordance with 11 U.S.C. § 553; (2) any
rights to pursue any non-debtor third parties for tax debts or claims; (3) the payment of interest on
the Texas Comptroller’s allowed administrative expense tax claims, if any; (4) to the extent that
interest is payable with respect to any allowed administrative expense, priority, or secured tax
claim of the Texas Comptroller, payment of the statutory rate of interest pursuant to Texas Tax
Code § 111.060; and (5) the Texas Comptroller is not required to file a motion or application for
payment of administrative expense claims pursuant to 11 U.S.C. § 503(b)(1)(D). Should the Plan
Administrator fail to make any payments as required in this Plan or this Confirmation Order, or
remain current on post-petition and/or post-confirmation ordinary course tax reporting and
payment obligations, the Texas Comptroller shall provide written notice of that default to the Plan
Administrator and the Plan Administrator’s attorney advising of that default and providing the
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Plan Administrator with a period of twenty-one (21) days to cure the default. In the event the
default is not cured within twenty-one (21) days, the Texas Comptroller may seek appropriate
relief with the Bankruptcy Court seeking to compel payment and/or performance with such
reporting and payment obligations.
MMM. Provisions Regarding Hartford Fire Insurance Company
113. Notwithstanding anything to the contrary in the Plan or the Confirmation Order and
any related documents, on the Effective Date, any rights, claims and obligations, including without
limitation, trust and/or subrogation rights arising under any surety bonds issued by Hartford Fire
Insurance Company (the “Surety”) shall continue in full force and effect including, to the extent
applicable, the following: (a) any indemnity agreement or related instruments issued and/or
executed on behalf of or at the request of any of the Debtors in favor of Surety; (b) any funds the
Surety or any bond beneficiary is holding and/or that are being held for or for the benefit of the
Surety or any bond beneficiary presently or in the future, whether in trust, as security, or otherwise;
(c) any substitutions or replacements of said funds including accretions to and interest earned on
said funds; (d) any collateral being held by any bond beneficiary or letter of credit, related to any
indemnity, collateral trust, bond, arrangement, contract or other agreements between or involving
the Surety and any of the Debtors; (e) any rights, remedies and/or defenses the Surety may now or
in the future have with respect to any and all bonds and/or related instruments issued and/or
executed by the Surety on behalf of any of the Debtors; and (f) current or future setoff and/or
recoupment rights and/or lien rights and/or trust fund claims of the Surety or any party to whose
rights the Surety has or may be subrogated, and/or any existing or future subrogation or other
common law rights of the Surety.
114. In addition, notwithstanding anything in the Plan to the contrary, the rights, claims,
and defenses of the Debtors and any subrogee on and/or beneficiary or current or future claimant
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under any bond (“Bond Subrogee(s)”), including, but not limited to, the Surety’s and/or its Bond
Subrogee(s)’ rights under any properly perfected lien and/or claims and/or claim for equitable
rights of subrogation, and rights of the Debtors, and of any successors in interest to any of the
Debtors, and any creditors, to object to any such liens, claims, and/or equitable subrogation and
other rights, are fully preserved.
115. Article 6 (L)(1) (Claims Paid by Third Parties) should not apply to the Surety or its
Bond Subrogee(s) or to the amounts owed to these parties. Article 8(C) (Release by Holders of
Claims and Interests) should also not apply to the Surety as the Surety is deemed not to have opted-
in to the third-party release provisions of the Plan. Article 8(E), part (d) (Injunction) should not
apply to the Surety or any bond beneficiary. Finally, Article 8(H) (Reimbursement or Contribution)
of the Plan which restricts a Claimants’ rights under 502 (j) of the Bankruptcy Code, shall not
apply to any Claim of the Surety and/or any Claim to which the Surety may be subrogated.
116. Solely to the express extent permitted by the terms of any applicable surety bonds
and indemnity agreement, the Surety shall be permitted access to the specific portions of any and
all books and records held by the Debtors, Plan Administrator and/or Purchaser relating to the
Surety’s Bonds., and the Surety shall receive no less than thirty (30) days’ written notice by the
entity holding such books and records prior to destruction or abandonment of any such books and
records. Without limitation to any other rights of the Surety, if a claim or claims are asserted
against any Bond(s) and/or related instruments, then the Surety shall be granted access to, and may
make copies of, the specific portions of any books and records related to such Bonds upon the
Surety’s request.
NNN. Provisions Regarding Cigna Health and Life Insurance Company
117. Under an Administrative Services Only Agreement and a Stop Loss Policy (jointly,
the “ASO Agreement”), Cigna Health and Life Insurance Company (“Cigna”) provides
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administrative services for Debtors' self-insured employee healthcare benefits plan (“Benefits
Plan”). Under the ASO Agreement, Cigna processes healthcare claims of Debtors' employees and
their dependents (“Benefits Claims”), and causes the Benefits Claims that are eligible for payment
under the Benefits Plan (“Payable Claims”) to be funded through Debtors' segregated Plan bank
account at JPMorgan Chase Bank, Account No. XXXXX2328 (“Benefits Plan Bank Account”).
118. Cigna Behavior Health, Inc. and the Debtors are parties to an Agreement for
Employee Assistance Program (the “EAP Agreement”).
119. Notwithstanding anything to the contrary in the Plan, any Notice related thereto, or
this Confirmation Order to the contrary, the following paragraphs shall govern the disposition and
treatment of the ASO Agreement and the EAP Agreement.
120. In accordance with the Debtors' direction, coverage under the Benefits Plan shall
terminate as of 12:01 a.m. on January 1, 2025, or such other date as may be agreed in writing by
the Debtors and Cigna (“Termination Date”). The Debtors have elected to provide for Benefits
Claims incurred, but not submitted, processed and paid prior to the Termination Date (“Run-Out
Claims”), to be processed by Cigna and funded for a twelve (12) month period following the
Termination Date.
121. To fund the payment of the Run-Out Claims, Debtors shall, prior to the Termination
Date, deposit funds into the Benefits Plan Bank Account sufficient to bring the balance of the
Benefits Plan Bank Account to no less than $275,000 (the “Deposit”). From and after the
Termination Date, the Wind Down Debtors and Plan Administrator shall be prohibited from
withdrawing any funds deposited into the Benefits Plan Bank Account until the Run-Out Claims
Termination Date.
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122. Conditioned upon the Deposit, Cigna shall process Run-Out Claims that are
received by Cigna in sufficient time to be processed and paid prior to the last day of the month that
is twelve (12) months from the Termination Date (“Run-Out Claims Termination Date”), and shall
cause such Run-Out Claims that are Payable Claims to be paid to the extent that a sufficient balance
remains in the Benefits Plan Bank Account to fund such payment. Cigna shall not be required to
process Run-Out Claims received after the Run-Out Claims Termination Date, or to cause any
Payable Claims to be paid to the extent that the balance of the Benefits Plan Bank Account is
insufficient to fund the payment of such claims.
123. If, at any time, Cigna determines that there are insufficient funds in the Benefits
Plan Bank Account to fund the continued payment of Payable Claims, Cigna shall cease processing
Run-Out Claims, and Cigna shall promptly provide the Plan Administrator (or a successor thereto,
whose identity and contact information shall be provided to Cigna in writing) with written notice
of the amount reasonably expected by Cigna to be necessary to fund the payment of remaining
Run-Out Claims (“'Supplemental Funding Amount”). If the Supplemental Funding Amount is not
deposited into the Benefits Plan Bank Account within ten (10) calendar days of such notice, then
the date of such notice shall be deemed the Run-Out Claims Termination Date.
124. Not later than 45 days following the Run-Out Termination Date, the Plan
Administrator shall request Cigna to take action necessary to have any balance remaining in the
Benefits Plan Bank Account, less any outstanding check liability, transferred to a bank account
designated by the Plan Administrator, and Cigna shall cooperate as necessary to facilitate that
transfer. Any such balance shall be the property of the Wind Down Debtors.
125. Provided that Cigna has completed its obligations hereunder, Cigna's
responsibilities under the ASO Agreement shall be deemed fully performed as of the Run-Out
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Claims Termination Date, and Cigna shall be deemed released from any liability, including
liability under 11 U.S.C. § 547, 548, 549 and 550, arising from or relating to the ASO Agreement.
126. The ASO Agreement shall be deemed assumed under the Plan but shall be deemed
validly terminated effective as of the Termination Date; provided, however, that Debtors shall, on
or before the Effective Date of the Plan, to the extent not previously paid, pay all post-petition
amounts due under the ASO Agreement for the period prior to the Termination Date. The EAP
Agreement shall be deemed validly terminated as of the Termination Date.
OOO. Committee Settlement
127. This Confirmation Order constitutes approval pursuant to Bankruptcy Rule 9019 of
the Debtors’ entry into, and the terms of, the Committee Settlement embodied in the Plan, and no
provision of the Plan relating to the terms of the Committee Settlement may be modified without
the consent of the Committee and the Required DIP Lenders, as applicable under the Plan,
including, without limitation, the provisions of the Plan relating to the Administrative Claims
Reserve Amount, the Released Preference Actions, the Residual Claims Recovery Pool, the
Residual GUC Recovery Pool, the treatment and classification of Claims in Class 6, the Zoll
Claims Funding Obligations, the Trudell Claims Funding Obligations, and any and all conditions
precedent to the Effective Date relating to the foregoing or any other terms of the Committee
Settlement.
PPP. Headings
128. Headings utilized in this Confirmation Order are for convenience and reference
only, and do not constitute a part of the Plan or this Confirmation Order for any other purpose.
QQQ. Final Order and Waiver of Stay
129. For good cause shown, the stay of this Confirmation Order provided by any
Bankruptcy Rule is waived, and this Confirmation Order shall be effective and enforceable
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immediately upon its entry by this Bankruptcy Court. This Confirmation Order is a Final Order
and shall take effect immediately be effective and enforceable immediately upon entry, and its
provisions shall be self-executing, and the period in which an appeal must be filed shall commence
upon the entry hereof. In the absence of any Person obtaining a stay pending appeal, the Debtors
are authorized to consummate the Plan.
Dated: November 14th, 2024 BRENDAN L. SHANNON
Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE
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