Vyaire - Notice of Filing Redline Version of Second Amended Plan
- Date
- 2024-09-11
Summary
A notice of filing a redline version of the Second Amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and its Debtor Affiliates, filed November 12, 2024 as Doc 723 in In re: Vyaire Medical, Inc., et al., Case No. 24-11217 (BLS), in the United States Bankruptcy Court for the District of Delaware. The notice recounts that the debtors filed the Plan on September 11, 2024 [Docket No. 518], an amended plan on September 30, 2024 [Docket No. 581] and a second amended plan on November 11, 2024 [Docket No. 719]. Exhibit A is a redline comparing the second amended plan against the amended plan. The plan's table of contents covers defined terms, treatment of claims and interests, a liquidating trust and plan administrator, executory contracts, distributions, releases and retention of jurisdiction. Among the definitions, it adds an Administrative Claims Reserve Amount of not less than $3,054,577.
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Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 1 of 82
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. 518, 581, & 719
NOTICE OF FILING REDLINE VERSION OF SECOND AMENDED JOINT
CHAPTER 11 PLAN OF VYAIRE MEDICAL, INC. AND ITS DEBTOR AFFILIATES
PLEASE TAKE NOTICE that, on September 11, 2024, Vyaire Medical, Inc. and
certain of its affiliates, the debtors and debtors in possession in the above-captioned cases
(collectively, the “Debtors”) filed the Joint Chapter 11 Plan of Vyaire Medical, Inc. and its Debtor
Affiliates [Docket No. 518] (the “Plan”) with the United States Bankruptcy Court for the District
of Delaware (the “Court”).
PLEASE TAKE FURTHER NOTICE that, on September 30, 2024, the Debtors filed
the first amended Joint Chapter 11 Plan of Vyaire Medical, Inc. and its Debtor Affiliates
[Docket No. 581] (the “Amended Plan”)
PLEASE TAKE FURTHER NOTICE that, on November 11, 2024, the Debtors filed a
second amended version of the Plan [Docket No. 719] (as amended, the “Second Amended Plan”).
PLEASE TAKE FURTHER NOTICE that a redline comparing the Second Amended
Plan against the Amended Plan is attached hereto as Exhibit A.
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.
Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 2 of 82
Dated: November 12, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C. KIRKLAND & ELLIS LLP
Patrick J. Reilley (No. 4451) KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410 Joshua A. Sussberg, P.C. (admitted pro hac vice)
Wilmington, Delaware 19801 601 Lexington Ave
Telephone: (302) 652-3131 New York, New York 10022
Facsimile: (302) 652-3117 Telephone: (212) 446-4800
Email: preilley@coleschotz.com Facsimile: (212) 446-4900
Email: joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice) Spencer A. Winters, P.C. (admitted pro hac vice)
Court Plaza North, 25 Main Street Yusuf U. Salloum (admitted pro hac vice))
Hackensack, New Jersey 07601 333 West Wolf Point Plaza
Telephone: (201) 489-3000 Chicago, Illinois 60654
Facsimile: (201) 489-1536 Telephone: (312) 862-2000
Email: msirota@coleschotz.com Facsimile: (312) 862-2200
wusatine@coleschotz.com Email: spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
Co-Counsel to the Debtors Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
2
Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 3 of 82
Exhibit A
Redline
Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 4 of 82
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)
)
SECOND AMENDED JOINT CHAPTER 11 PLAN OF VYAIRE MEDICAL, INC. AND
ITS DEBTOR AFFILIATES
KIRKLAND & ELLIS LLP COLE SCHOTZ P.C.
KIRKLAND & ELLIS INTERNATIONAL Patrick J. Reilley, Esq. (DE Bar No. 4451)
LLP
Joshua A. Sussberg, P.C. (admitted pro hac vice) 500 Delaware Avenue, Suite 1410
601 Lexington Ave Wilmington, Delaware 19801
New York, New York 10022 Telephone: (302) 652-3131
Telephone: (212) 446-4800 Facsimile: (302) 652-3117
Facsimile: (212) 446-4900 Email: preilley@coleschotz.com
Email: joshua.sussberg@kirkland.com
- and -
- and -
Michael D. Sirota, Esq. (admitted pro hac vice)
Spencer A. Winters, P.C. (admitted pro hac vice) Warren A. Usatine, Esq (admitted pro hac vice)
Yusuf U. Salloum (admitted pro hac vice) Court Plaza North, 25 Main Street
333 West Wolf Point Plaza Hackensack, New Jersey 07601
Chicago, Illinois 60654 Telephone: (201) 489-3000
Telephone: (312) 862-2000 Facsimile: (201) 489-1536
Facsimile: (312) 862-2200 Email: msirota@coleschotz.com
Email: spencer.winters@kirkland.com wusatine@coleschotz.com
yusuf.salloum@kirkland.com
Co-Counsel for the Debtors Co-Counsel for the Debtors
and Debtors in Possession and Debtors in Possession
Dated: September 30November 11, 2024
TABLE OF CONTENTS
1
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.
i
Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 5 of 82
INTRODUCTION 1
ARTICLE I . DEFINED TERMS, RULES OF INTERPRETATION,
COMPUTATION OF TIME, AND GOVERNING LAW 1
A. Defined Terms. 1
B. Rules of Interpretation. 1921
C. Computation of Time. 2022
D. Governing Law. 2023
E. Reference to Monetary Figures. 2123
F. Reference to the Debtors or the Wind-Down Debtors. 2123
G. No Substantive Consolidation; Limited Administrative Consolidation. 2123
H. Controlling Document. 2123
ARTICLE II . ADMINISTRATIVE CLAIMS, PROFESSIONAL FEE CLAIMS,
DIP CLAIMS, AND PRIORITY TAX CLAIMS 2124
A. General Administrative Claims. 2124
B. Professional Fee Claims. 2225
C. DIP Claims. 2426
D. Priority Tax Claims. 2427
E. Statutory Fees. 2527
ARTICLE III . CLASSIFICATION AND TREATMENT OF CLAIMS AND
INTERESTS 2527
A. Classification of Claims and Interests. 2527
B. Treatment of Claims and Interests. 2628
C. Special Provision Governing Unimpaired Claims. 3033
D. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy
Code. 3133
E. Subordinated Claims. 3133
F. Elimination of Vacant Classes; Presumed Acceptance by Non-Voting Classes. 3134
G. Intercompany Interests. 3134
H. Controversy Concerning Impairment. 3234
ARTICLE IV . MEANS FOR IMPLEMENTATION OF THE PLAN 3234
A. Restructuring Transactions. 3234
B. Sources of Consideration for Plan Distributions. 3235
C. Wind-Down Debtors. 3335
D. Liquidating Trust. 3336
E. Plan Administrator. 3538
F. Exculpation, Indemnification, Insurance, and Liability Limitation. 3639
G. Tax Returns. 3639
H. Dissolution of the Wind-Down Debtors. 3639
I. Statutory Committee and Cessation of Fee and Expense Payment. 3739
J. Cancellation of Securities and Agreements. 3740
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K. Corporate Action. 3740
L. Effectuating Documents; Further Transactions. 3841
M. Section 1146 Exemption. 3841
N. Director and Officer Liability Insurance; Other Insurance. 3941
O. Causes of Action. 3942
P. Section 1145 Exemption. 3942
ARTICLE V . TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED
LEASES 4043
A. Assumption and Rejection of Executory Contracts and Unexpired Leases. 4043
B. TSA Contracts 43
BC. Claims Based on Rejection of Executory Contracts or Unexpired Leases. 4145
C. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases. 41
D. Insurance Policies. 4245
E. Indemnification Obligations. 4346
F. Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired
Leases. 4347
G. Modifications, Amendments, Supplements, Restatements, or Other Agreements. 4347
H. Reservation of Rights. 4347
I. Nonoccurrence of Effective Date. 4447
ARTICLE VI . PROVISIONS GOVERNING DISTRIBUTIONS 4448
A. Timing and Calculation of Amounts to Be Distributed. 4448
B. Disbursing Agent. 4448
C. Rights and Powers of the Disbursing Agent. 4448
D. Delivery of Distributions and Undeliverable or Unclaimed Distributions. 4549
E. Manner of Payment. 4650
F. Compliance with Tax Requirements. 4650
G. Allocations. 4650
H. No Postpetition or Default Interest on Claims. 4650
I. Foreign Currency Exchange Rate. 4750
J. Setoffs and Recoupment. 4751
K. No Double Payment of Claims. 4751
L. Satisfaction of Claims. 51
LM. Claims Paid or Payable by Third Parties. 4751
ARTICLE VII . PROCEDURES FOR RESOLVING CONTINGENT,
UNLIQUIDATED, AND DISPUTED CLAIMS 4852
A. Allowance of Claims and Interests. 4852
B. Claims and Interests Administration Responsibilities. 4953
C. Estimation of Claims and Interests. 4953
D. Adjustment to Claims or Interests Without Objection. 4953
E. Time to File Objections to Claims 5054
F. Disallowance of Claims. 5054
G. Amendments to Proofs of Claims or Interests. 5054
H. No Distributions Pending Allowance. 5054
I. Distributions After Allowance. 5155
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Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 7 of 82
J. Single Satisfaction of Claims. 5155
K. Claims Not Receiving a Distribution. 5155
ARTICLE VIII . SETTLEMENT, RELEASE, INJUNCTION, AND RELATED
PROVISIONS 5155
A. Release of Liens. 5155
B. Releases by the Debtors. 5256
C. Releases by Holders of Claims and Interests. 5357
D. Exculpation. 5559
E. Injunction. 5559
F. Protections Against Discriminatory Treatment. 5660
G. Document Retention. 5661
H. Reimbursement or Contribution. 5661
I. Term of Injunctions or Stays. 5761
ARTICLE IX . CONDITIONS PRECEDENT TO CONFIRMATION AND THE
EFFECTIVE DATE 5761
A. Conditions Precedent to the Effective Date. 5761
B. Waiver of Conditions. 5863
C. Effect of Failure of Conditions. 5863
ARTICLE X . MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE
PLAN 5863
A. Modifications and Amendments. 5863
B. Effect of Confirmation on Modifications. 5964
C. Revocation or Withdrawal of the Plan. 5964
ARTICLE XI . RETENTION OF JURISDICTION 5964
ARTICLE XII . MISCELLANEOUS PROVISIONS 6267
A. Immediate Binding Effect. 6267
B. Additional Documents. 6267
C. Reservation of Rights. 6267
D. Successors and Assigns. 6267
E. Service of Documents. 6268
F. Enforcement of Confirmation Order. 6470
G. Entire Agreement. 6470
H. Exhibits. 6470
I. Nonseverability of Plan Provisions. 6470
J. Closing of Chapter 11 Cases. 6570
iv
Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 8 of 82
INTRODUCTION
Vyaire Medical, Inc. and the above-captioned debtors and debtors in possession (each,
a “Debtor” and, collectively, the “Debtors”) propose this Plan for the resolution of the
outstanding claims against, and equity interests in, the Debtors. The Chapter 11 Cases have been
consolidated for procedural purposes only and are being jointly administered pursuant to an order
of the Bankruptcy Court. This Plan constitutes a separate chapter 11 plan for each Debtor and,
unless otherwise set forth herein, the classifications and treatment of Claims and Interests apply
to each individual Debtor.
Holders of Claims and Interests should refer to the Disclosure Statement for a discussion
of the Debtors’ history, businesses, assets, results of operations, and historical financial
information, projections, and future operations, as well as a summary and description of this Plan
and certain related matters. Each Debtor is a proponent of the Plan contained herein within the
meaning of section 1129 of the Bankruptcy Code.
ALL HOLDERS OF CLAIMS ENTITLED TO VOTE ON THE PLAN ARE
ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE STATEMENT IN THEIR
ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.
ARTICLE I.
DEFINED TERMS, RULES OF
INTERPRETATION,
COMPUTATION OF TIME, AND GOVERNING
LAW
A. Defined Terms.
As used in this Plan, capitalized terms have the meanings given to them below.
1. “1L Ad Hoc Group” means, collectively, those Holders of First Lien Claims
represented by the 1L Ad Hoc Group Advisors, that are signatories to the Restructuring Support
Agreement or any subsequent Holder of First Lien Claims that becomes party thereto as a
member of the 1L Ad Hoc Group, in accordance with the terms of the Restructuring Support
Agreement.
2. “1L Ad Hoc Group Advisors” means (a) Gibson, Dunn & Crutcher LLP; (b)
Rothschild & Co.; and (c) Pachulski Stang Ziehl & Jones LLP.
3. “2L Consenting Creditors” means, collectively, those Holders of Second Lien
Claims that are signatories to the Restructuring Support Agreement or any subsequent Holder of
Second Lien Claims that becomes party thereto, in accordance with the terms of the
Restructuring Support Agreement.
4. “Administrative Claim” means a Claim against a Debtor arising on or after the
Petition Date and before the Effective Date for the costs and expenses of administration of the
Chapter 11 Cases under sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the
Bankruptcy Code, including: (a) the actual and necessary costs and expenses of preserving the
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Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 9 of 82
Estates and operating the businesses of the Debtors incurred on or after the Petition Date and
through the Effective Date; (b) Allowed Professional Fee Claims in the Chapter 11 Cases;
(c) all fees and charges assessed against the Estates pursuant to section 1930 of chapter 123 of
title 28 of the United States Code, 28 U.S.C. §§ 1911–1930; and (d) adequate protection claims
provided for in the DIP Orders.
5. “Administrative Claims Bar Date” means the applicable deadline for Filing
requests for payment of Administrative Claims (other than requests for payment of Professional
Fee Claims and fees and charges assessed against the Estates pursuant to section 1930 of chapter
123 of title 28 of the United States Code), which shall be 30 days after the Effective Date for
Administrative Claims that may have arisen, accrued, or otherwise become due and payable at
any time on and subsequent to the Petition Date.
6. “Administrative Claims Objection Bar Date” means the means the deadline for
Filing objections to requests for payment of Administrative Claims (other than requests for
payment of Professional Fee Claims and fees and charges assessed against the Estates pursuant
to section 1930 of chapter 123 of title 28 of the United States Code), which shall be the later of
(a) 60 days after the Effective Date and (b) 60 days after the Filing of the applicable request for
payment of the Administrative Claims.
7. “Administrative Claims Reserve Amount” means a reserve, in the amount of not
less than $3,054,577 of the funds available solely under the Wind-Down Budget, which shall be
dedicated to the payment of Allowed Administrative Claims, with any residual amounts up to the
Residual Claims Recovery Pool Cap in such reserve being transferred to the Residual Claims
Recovery Pool.
8. 7. “Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code.
With respect to any Entity that is not a Debtor, the term “Affiliate” shall apply to such Entity as
if the Entity were a Debtor.
9. 8. “Agent” means each of, and in each case in its capacity as such, the First Lien
Agent, the Notes Agent, the Second Lien Agent, and the DIP Agent.
10. 9. “Allowed” means with respect to any Claim or Interest, except as otherwise
provided herein: (a) a Claim or Interest in a liquidated amount as to which no objection has been
Filed prior to the applicable claims objection deadline and that is evidenced by a Proof of Claim
or Interest, as applicable, timely Filed by the Claims Bar Date or that is not required to be
evidenced by a Filed Proof of Claim or Interest, as applicable, under the Plan, the Bankruptcy
Code, or pursuant to a Final Order; (b) a Claim or Interest that is listed in the Schedules as not
contingent, not unliquidated, and not Disputed, and for which no Proof of Claim or Interest, as
applicable, has been timely Filed in an unliquidated or a different amount; or (c) a Claim or
Interest that is upheld or otherwise Allowed (i) pursuant to the Plan, (ii) in any stipulation that is
approved by the Bankruptcy Court, (iii) pursuant to any contract, instrument, indenture, or other
agreement entered into or assumed (or assumed and assigned) in connection with the Plan, or
(iv) by Final Order of the Bankruptcy Court (including any such Claim to which the Debtors had
objected or which the Bankruptcy Court had disallowed prior to such Final Order). With respect
to any Claim or Interest described in clauses (a) and (c) above, such Claim or Interest shall be
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Case 24-11217-BLS Doc 723 Filed 11/12/24 Page 10 of 82
considered Allowed only if and to the extent that, (w) no objection to the Allowance of such
Claim or Interest has been or, in the Debtors’ or Wind-Down Debtors’ reasonable good faith
judgment may be, interposed on or before the Claims Objection Deadline (which shall have the
meaning set forth in Article VII.E.) or Administrative Claims Objection Bar Date, as appliable,
(x) an objection to such Claim or Interest is asserted and such Claim or Interest is subsequently
Allowed pursuant to a Final Order, (y) such Claim or Interest is settled pursuant to, or is
authorized under, a Final Order, or (z) such Claim or Interest is Allowed pursuant to the Plan or
the Confirmation Order. For the avoidance of doubt, unless otherwise ordered by the Bankruptcy
Court or agreed to by the Debtors or the Wind-Down Debtors, as applicable, a Proof of Claim
Filed after the Claims Bar Date shall not be Allowed for any purposes whatsoever. “Allow,”
“Allowing,” and “Allowance” shall have correlative meanings.
11. 10. “Approved DIP Budget” means the “Approved DIP Budget” as such term is
used in the DIP Orders.
12. 11. “Asset Purchase Agreements” means the Zoll APA and the Trudell APA, as
approved by the Sale Orders, including all exhibits, appendices, supplements, and documents,
schedules, and agreements thereto, and as may be amended, modified, or supplemented in
accordance with the terms thereof.
13. 12. “Auction” means the auction, if any, for some or all of the Debtors’ assets,
conducted in accordance with the Bidding Procedures.
14. 13. “Available Cash” means, collectively, all Cash on hand held by the Debtors
and the Wind-Down Debtors on and after the Effective Date, including the proceeds from the
Sale Transactions (following application of the DIP Paydown Amount and payment in full of the
Prepetition First Lien RCF Loan Paydown Amount and the First Lien Agent Adequate Protection
Claims), which shall include the proceeds reserved to fund the Wind Down as set forth in the
Wind-Down Budget.
15. 14. “Avoidance Actions” means any and all avoidance, recovery, or subordination
actions or remedies that may be brought by or on behalf of the Debtors or their Estates under the
Bankruptcy Code or applicable non-bankruptcy law, including actions or remedies under
sections 544, 547, 548, 549, 550, 551, 552, or 553 of the Bankruptcy Code.
16. 15. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C.
§§ 101–1532, as now in effect or hereafter amended, and the rules and regulations promulgated
thereunder.
17. 16. “Bankruptcy Court” means the United States Bankruptcy Court for the
District of Delaware having jurisdiction over the Chapter 11 Cases and, to the extent of the
withdrawal of reference under section 157 of the Judicial Code, the United States District Court
for the District of Delaware.
18. 17. “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure
promulgated under section 2075 of the Judicial Code, and the general, local, and chambers’ rules
of the Bankruptcy Court.
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19. 18. “Bar Date Order” means 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] (as the same may be amended, supplemented, or modified from time
to time after entry thereof), entered by the Bankruptcy Court on July 9, 2024.
20. 19. “Bidding Procedures” means the procedures governing the sale and marketing
process for the Sale Transactions as approved pursuant to the Bidding Procedures Order.
21. 20. “Bidding Procedures Order” means 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 Assignments of Contracts,
(VI) Approving the Sale of the Debtors’ Assets Free and Clear, and (VII) Granting Related
Relief [Docket No. 249] (as may be modified, amended, or supplemented by further Final Order),
entered by the Bankruptcy Court on July 11, 2024.
22. 21. “Business Day” means any day, other than a Saturday, Sunday, or “legal
holiday” (as defined in Bankruptcy Rule 9006(a)(6)).
23. 22. “Cash” means cash and cash equivalents, including bank deposits, checks,
and other similar items in legal tender of the United States of America.
24. 23. “Cash Collateral” has the meaning ascribed to it under section 363(a) of the
Bankruptcy Code.
25. 24. “Cause of Action” or “Causes of Action” means any actions, claims,
cross-claims, third-party claims, interests, damages, controversies, remedies, disputes, causes of
action, debts, judgments, demands, rights, actions, suits, obligations, liabilities, accounts,
defenses, offsets, powers, privileges, licenses, Liens, indemnities, interests, guaranties, and
franchises of any kind or character whatsoever, whether known or unknown, foreseen or
unforeseen, existing or hereinafter arising, contingent or non-contingent, matured or unmatured,
suspected or unsuspected, liquidated or unliquidated, Disputed or undisputed, secured or
unsecured, assertable directly or derivatively, whether arising before, on, or after the Petition
Date, in contract or in tort, in Law or in equity, or pursuant to any other theory of Law or
otherwise. “Causes of Action” also include: (a) any rights of setoff, counterclaims, or
recoupments, and any claims under contracts or for breaches of duties imposed by Law or in
equity; (b) any and all claims based on or relating to, or in any manner arising from, in whole or
in part, tort, breach of contract, breach of fiduciary duty, violation of state or federal Law, or
breach of any duty imposed by Law or in equity, including Securities laws, negligence, and gross
negligence; (c) any and all rights to dispute, object to, compromise, or seek to recharacterize,
reclassify, subordinate, or disallow Claims or Interests; (d) any claims pursuant to section 362 or
chapter 5 of the Bankruptcy Code (including, for the avoidance of doubt, Avoidance Actions);
(e) any claims or defenses, including fraud, mistake, duress, and usury, and any other defenses
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set forth in section 558 of the Bankruptcy Code; and (f) any state or foreign Law fraudulent
transfer or similar claims.
26. 25. “Chapter 11 Cases” mean (a) when used with reference to a particular Debtor,
the case pending for that Debtor under chapter 11 of the Bankruptcy Code, and (b) when used
with reference to all Debtors, the procedurally consolidated chapter 11 cases pending for the
Debtors in the Bankruptcy Court.
27. 26. “Claim” means any claim, as such term is defined in section 101(5) of the
Bankruptcy Code, against a Debtor or a Debtor’s Estate.
28. 27. “Claims and Noticing Agent” means Omni Agent Solutions, Inc. in its
capacity as claims and noticing agent for the Debtors and any successor.
29. 28. “Claims Bar Date” means, collectively, the date established by the
Bankruptcy Court in the Bar Date Order by which Proofs of Claim must be Filed with respect to
such Claims, other than Administrative Claims, Claims held by Governmental Units, or other
Claims for which the Bankruptcy Court entered an order excluding the Holders of such Claims
from the requirement of Filing Proofs of Claim.
30. 29. “Claims Register” means the official register of Claims maintained by the
Claims and Noticing Agent.
31. 30. “Class” means a class of Claims or Interests as set forth in Article III hereof in
accordance with section 1122(a) of the Bankruptcy Code.
32. 31. “Committee” means the statutory committee of unsecured creditors of the
Debtors, appointed in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code by
the U.S. Trustee on June 26, 2024, as set forth in the Notice of Appointment of Committee of
Unsecured Creditors [Docket No. 121].
33. “Committee Settlement” means the Debtors’, the Required DIP Lenders’, and the
Committee’s settlement pursuant to Bankruptcy Rule 9019 and section 1123 of the Bankruptcy
Code regarding the release provisions as set forth herein, the treatment of Administrative Claims
and Allowed General Unsecured Claims, and establishment of the Residual Claims Recovery
Pool and Residual GUC Recovery Pool, and distributions therefrom, as applicable.
34. 32. “Conditional Approval Order” means the order of the Bankruptcy Court
approving the Disclosure Statement on a conditional basis as having sufficient information under
section 1125(a) of the Bankruptcy Code.
35. 33. “Confirmation” means the Bankruptcy Court’s entry of the Confirmation
Order on the docket of the Chapter 11 Cases within the meaning of Bankruptcy Rules 5003 and
9021.
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36. 34. “Confirmation Date” means the date upon which the Bankruptcy Court enters
the Confirmation Order on the docket of the Chapter 11 Cases, within the meaning of
Bankruptcy Rules 5003 and 9021.
37. 35. “Confirmation Hearing” means the hearing held by the Bankruptcy Court to
consider Confirmation of the Plan pursuant to Bankruptcy Rule 3020(b)(2) and sections 1128
and 1129 of the Bankruptcy Code, as such hearing may be continued from time to time.
38. 36. “Confirmation Order” means the order of the Bankruptcy Court confirming
the Plan pursuant to section 1129 of the Bankruptcy Code, which shall be in form and substance
acceptable to the Required DIP Lenders.
39. 37. “Consenting Creditors” means, collectively, each member of the 1L Ad Hoc
Group and the 2L Consenting Creditors.
40. 38. “Consenting Stakeholders” means, collectively, the Consenting Creditors and
the Sponsor.
41. 39. “Consummation” means the occurrence of the Effective Date.
42. 40. “Cure” or “Cure Claim” means a Claim (unless waived or modified by the
applicable counterparty) based upon a Debtor’s defaults on an Executory Contract or Unexpired
Lease at the time such Executory Contract or Unexpired Lease is assumed by such Debtor
pursuant to section 365 of the Bankruptcy Code, other than with respect to a default that is not
required to be cured under section 365(b)(2) of the Bankruptcy Code.
43. 41. “Cure Notice” means, with respect to an Executory Contract or Unexpired
Lease to be assumed under the Plan or assumed and assigned under an Asset Purchase
Agreement pursuant to section 365 of the Bankruptcy Code, a notice that (a) sets forth the
proposed amount to be paid on account of a Cure Claim in connection with the assumption of
such Executory Contract or Unexpired Lease; (b) notifies the counterparty to such Executory
Contract or Unexpired Lease that such party’s Executory Contract or Unexpired Lease may be
assumed under the Plan or assumed and assigned to a Purchaser in connection with a Sale
Transactions; (c) sets forth the procedures for objecting to the proposed assumption or
assumption and assignment of Executory Contracts and Unexpired Leases, including the
proposed objection deadline, and for the resolution by the Bankruptcy Court of any such
disputes; and (d) states that the proposed assignee (if applicable) has demonstrated its ability to
comply with the requirements of adequate assurance of future performance of the Executory
Contract(s) or Unexpired Leases to be assigned, including the assignee’s financial wherewithal
and willingness to perform under such Executory Contract or Unexpired Lease.
44. 42. “D&O Liability Insurance Policies” means all insurance policies (including
any “tail policy” or run-offrun-off endorsement) that have been issued (or provide coverage) at
any time to any of the Debtors (or any of their predecessors) providing directors’, members’,
trustees’, officers’, or managers’ liability coverage and all agreements, documents, or
instruments related thereto.
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45. 43. “Debtor” means one or more of the Debtors, as debtors and debtors in
possession, each in its respective individual capacity as a debtor and debtor in possession in the
Chapter 11 Cases.
46. 44. “Debtor Release” means the releases given on behalf of the Debtors and their
Estates as set forth in the Article VIII.B hereof.
47. 45. “Debtors” means, collectively: Vyaire Medical, Inc.; Bird Products
Corporation; Breathe US Holdco, Inc.; Breathe US Holdings LP; EME Medical, Inc.;
Revolutionary Medical Devices, Inc.; SensorMedics Corporation; VIASYS Holdings Inc.; VM
Finance Sub, LLC; Vyaire Company; Vyaire Finance B.V.; Vyaire Financial Holdings LLC;
Vyaire Holding Company; Vyaire Medical 202, Inc.; Vyaire Medical 203, Inc.; Vyaire Medical
205, Inc.; Vyaire Medical 206, Inc.; Vyaire Medical 211, Inc.; Vyaire Medical BR LLC; Vyaire
Medical Capital LLC; Vyaire Medical Consumables LLC; Vyaire Medical International LLC;
Vyaire Medical LLC; Vyaire Medical Payroll LLC; Vyaire Receivables LLC; Vyaire Respiratory
Diagnostics LLC; Vyaire TSR MidCo LLC; and Vyaire TSR Sub LLC.
48. 46. “Definitive Documents” means, collectively, (a) this Plan and all exhibits
hereto; (b) the Disclosure Statement; (c) the Disclosure Statement Order; (d) the Confirmation
Order; (e) the DIP Facility Documents; (c) all motions, filings, documents, and agreements
related to the Sale Transactions, including without limitation, the Asset Purchase Agreements,
the Sale Order(s), the Bidding Procedures, and the Bidding Procedures Order; (d) all material
pleadings and motions filed by the Debtors in connection with the Chapter 11 Cases, but
excluding any applications to retain any professionals; and (e) any and all other deeds,
agreements, filings, notifications, pleadings, orders, certificates, letters, instruments or other
documents reasonably necessary or desirable to consummate and document the Restructuring
Transactions (including any exhibits, amendments, modifications, or supplements from time to
time).
49. 47. “DIP Agent” means Wilmington Savings Fund Society, FSB, in its capacity as
administrative agent and collateral agent under the DIP Facility.
50. 48. “DIP Claims” means any and all Claims arising under, derived from, or based
upon the DIP Facility Documents, the DIP Facility, and the DIP Orders, including all Claims for
principal amounts outstanding, interest, fees, expenses, costs indemnification, obligations,
reimbursement obligations, and other charges of the DIP Agent and the DIP Lenders arising
under or related to the DIP New Money Loans, the DIP Roll-Up Loans, DIP Facility Documents,
the DIP Facility, or the DIP Orders, each in accordance with and subject to the Sale Orders.
51. 49. “DIP Credit Agreement” means that certain Senior Secured Superpriority
Debtor-in-Possession Credit Agreement, dated on or about June 12, 2024, by and among Vyaire
Company, as Holdings, Vyaire Medical, Inc., as U.S. Borrower, Vyaire Finance B.V., as Dutch
Borrower, the guarantors party thereto, the lenders from time to time party thereto, and the DIP
Agent.
52. 50. “DIP Facility” means the senior secured superpriority debtor-in-possession
credit facility documented provided under the DIP Facility Documents.
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53. 51. “DIP Facility Documents” means the DIP Credit Agreement together with the
schedules and exhibits attached thereto, and all security agreements, pledge agreements, and
related agreements, documents, and instruments and amendments executed and delivered in
connection therewith, including the DIP Orders. For the avoidance of doubt, the Restructuring
Support Agreement is not a DIP Facility Document.
54. 52. “DIP Lenders” means the banks, financial institutions, and other lenders
under the DIP Credit Agreement.
55. 53. “DIP New Money Loans” means the term loans made under that certain
superpriority senior secured multiple draw term loan credit facility pursuant to the DIP Credit
Agreement, in the currently outstanding principal amount of $[37.5] million.
56. 54. “DIP Orders” means the Interim DIP Order and the Final DIP Order.
57. 55. “DIP Paydown” means the payment by the Debtors to the DIP Agent of the
DIP Paydown Amount from the Cash proceeds of the Sale Transactions in partial satisfaction of
the Allowed DIP Claims pursuant to the Ventilation Assets Sale Order and the Respiratory
Diagnostics Sale Order.
58. 56. “DIP Paydown Amount” means Cash proceeds of the Sale Transactions in the
aggregate amount of $56 million remitted to the DIP Agent pursuant to the Ventilation Assets
Sale Order and the Reparatory Diagnostics Sale Order, as dollar-for-dollar partial satisfaction of
the Allowed DIP Claims; provided that the DIP Paydown Amount shall not include any amounts
on account of the DIP Roll-Up Loans unless and until the Prepetition First Lien RCF Loan
Paydown Amount and the First Lien Agent Adequate Protection Claims have been paid in full in
cash.
59. 57. “DIP Roll-Up Loans” means the roll-up loans issued under that certain
superpriority term loan facility pursuant to the DIP Credit Agreement, in the currently
outstanding principal amount of $[135] million.
60. 58. “Disbursing Agent” means the Debtors, the Wind-Down Debtors, the Plan
Administrator, or the Entity or Entities selected by the Debtors or the Wind-Down Debtors, as
applicable, to make or facilitate distributions contemplated under the Plan, including the Plan
Administrator, if applicable.
61. 59. “Disclosure Statement” means the disclosure statement for the Plan, including
all exhibits and schedules attached thereto, and as amended, modified, or supplemented from
time to time in accordance with the terms thereof.
62. 60. “Disclosure Statement Orders” means the Conditional Approval Order and
the Final Approval Order.
63. 61. “Disputed” means, with respect to any Claim or Interest, any Claim or
Interest: (a) that is not Allowed, (b) as to which a dispute is being adjudicated by a court of
competent jurisdiction in accordance with non-bankruptcy law, or (c) that is Filed in the
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Bankruptcy Court and not withdrawn, as to which a timely objection or request for estimation
has been Filed.
64. 62. “Distributable Value” means an amount equal to, in accordance with the Sale
Orders and after giving effect to the DIP Paydown, payment in full of the Prepetition First Lien
RCF Loan Paydown Amount, payment in full of the First Lien Agent Adequate Protection
Claims, and funding the Wind-Down Debtor Account with the Wind-Down Debtor Account
Amount, the aggregate proceeds of the Sale Transactions, the Debtors’ Cash on hand, and any
other property of any of the Debtors plus net proceeds from the liquidation of the Wind-Down
Debtor Assets, minus the sum of: the aggregate amounts required, in each case, in accordance
with the terms of the Plan, to (i) subject to the reasonable consent of the Required DIP Lenders,
pay in full satisfaction all Claims required to be satisfied pursuant to section 1129 of the
Bankruptcy Code to confirm the Plan (which, for the avoidance of doubt, shall include payment
of Administrative Claims, Priority Tax Claims, and Other Priority Claims, in each case, solely to
the extent Allowed), (ii) subject to the reasonable consent of the Required DIP Lenders, make
any other required payments in order to implement the terms of the Plan, and (iii) with the
consent of the Required DIP Lenders, any other fees, costs, or expenses in excess of the
Wind-Down Budget reasonably necessary to liquidate, monetize, or collect the Wind-Down
Debtor Assets.
65. 63. “Distribution Record Date” means the record date for purposes of
determining which Holders of Allowed Claims against or Allowed Interests in the Debtors are
eligible to receive distributions under the Plan, which date shall be the Effective Date, or such
other date as is determined by the Debtors or designated in a Final Order.
66. 64. “Effective Date” means the date that is the first Business Day after the
Confirmation Date on which (a) no stay of the Confirmation Order is in effect, and (b) all
conditions precedent to the occurrence of the Effective Date set forth in Article IX.A of the Plan
have been satisfied or waived in accordance with Article IX.B of the Plan.
67. 65. “Entity” means any entity, as defined in section 101(15) of the Bankruptcy
Code.
68. 66. “Estate” means, as to each Debtor, the estate created on the Petition Date for
the Debtor in its Chapter 11 Case pursuant to section 541 of the Bankruptcy Code and all
property (as defined in section 541 of the Bankruptcy Code) acquired by the Debtors after the
Petition Date through the Effective Date.
69. 67. “Exculpated Parties” means, collectively, and in each case solely in its
capacity as such: (a) each of the Debtors; (b) the Independent Directors; (c) the Committee and
its members; and (d) with respect to the Debtors and the Committee, each of their respective
current and former directors, managers, officers, attorneys, financial advisors, consultants, or
other professionals or advisors, as applicable, that served in such capacity between the Petition
Date and Effective Date.
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70. 68. “Executory Contract” means a contract to which one or more of the Debtors is
a party that is subject to assumption, assumption and assignment, or rejection under section 365
or 1123 of the Bankruptcy Code.
71. 69. “Existing Equity Interests” means, collectively, all Interests in TopCo
outstanding immediately prior to the Effective Date.
72. 70. “Federal Judgment Rate” means the federal judgment interest rate in effect as
of the Petition Date calculated as set forth in section 1961 of the Judicial Code.
73. 71. “File,” “Filed,” or “Filing” means file, filed, or filing in the Chapter 11 Cases
with the Bankruptcy Court or, with respect to the filing of a Proof of Claim, the Claims and
Noticing Agent or the Bankruptcy Court.
74. 72. “Final Approval Order” means the order of the Bankruptcy Court approving
the Disclosure Statement on a final basis as having sufficient information under section 1125(a)
of the Bankruptcy Code.
75. 73. “Final DIP Order” means 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 the Automatic Stay, and (VI) Granting Related Relief
[Docket No. 248] (as may be modified, amended, or supplemented by further Final Order).
76. 74. “Final Order” means, as applicable, an order or judgment of the Bankruptcy
Court or other court of competent jurisdiction with respect to the relevant subject matter, which
has not been reversed, stayed, modified or amended, and as to which the time to appeal, petition
for certiorari, or move for reargument, reconsideration, or rehearing has expired and no appeal,
petition for certiorari, or motion for reargument, reconsideration, or rehearing has been timely
taken or Filed, or as to which any appeal, petition for certiorari, or motion for reargument,
reconsideration, or rehearing that has been taken or any petition for certiorari that has been or
may be Filed has been resolved by the highest court to which the order or judgment could be
appealed or from which certiorari could be sought or the new trial, reargument or rehearing shall
have been denied, resulted in no modification of such order or has otherwise been dismissed with
prejudice.
77. 75. “First Day Pleadings” means the first day pleadings that the Debtors Filed
with the Bankruptcy Court upon the commencement of the Chapter 11 Cases.
78. 76. “First Lien Agent” means Bank of America, N.A., in its capacity as
administrative agent and collateral agent under the First Lien Credit Agreement, or any successor
administrative agent or collateral agent by the terms set forth in the First Lien Credit Agreement.
79. 77. “First Lien Agent Adequate Protection Claims” the amount of any accrued
and unpaid First Lien Adequate Protection Fees (as defined in the Final DIP Order) of the First
Lien Agent as of the Effective Date.
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80. 78. “First Lien Claim” means, collectively, the First Lien Term Loan Claims and
the Notes Claims.
81. 79. “First Lien Credit Agreement” means that certain First Lien Credit
Agreement, dated as of April 16, 2018, by and between, among other parties, Holdings, the
Borrowers, certain other Company Parties as Guarantors (each, as defined therein), the First Lien
Agent, and the lenders from time to time party thereto, providing for the First Lien Term Loans
and First Lien RCF Loans, as amended, supplemented, or modified from time to time in
accordance with its terms.
82. 80. “First Lien RCF Claims” means any Claim on account of First Lien RCF
Loans (which, for the avoidance of doubt shall include interest, fees, and all other amounts due
and owing on account of the First Lien RCF Loans).
83. 81. “First Lien RCF Loans” means any revolving credit facility loans issued
pursuant to the First Lien Credit Agreement.
84. 82. “First Lien Term Loan Claim” means any Claim on account of First Lien
Term Loans (which, for the avoidance of doubt shall include interest, fees, and all other amounts
due and owing on account of the First Lien Term Loans).
85. 83. “First Lien Term Loans” means the term loans issued pursuant to the First
Lien Credit Agreement, in the currently outstanding principal amount of $204.3 million.
86. 84. “General Unsecured Claim” means any Claim that is not: (a) an
Administrative Claim; (b) a Professional Fee Claim; (c) a Priority Tax Claim; (d) an Other
Priority Claim; (e) a DIP Claim (f) a Secured Claim; (g) an Other Secured Claim; (h) a First Lien
Claim (i) a Second Lien Claim; (j) an Intercompany Claim; (k) a Section 510(b) Claim; or (l) any
Claim to the extent satisfied prior to the Effective Date.
87. 85. “Governing Body” means, in each case in its capacity as such, the board of
directors, board of managers, manager, general partner, investment committee, special
committee, or such similar governing body of any of the Debtors or any Wind-Down Debtors, as
applicable.
88. 86. “Governmental Bar Date” means December 9, 2024, at 11:59 p.m. (prevailing
Eastern Time), which is the date by which Proofs of Claim must be Filed with respect to such
Claims held by Governmental Units pursuant to the Bar Date Order.
89. 87. “Governmental Unit” means any governmental unit, as defined in section
101(27) of the Bankruptcy Code.
90. 88. “Holder” means an Entity holding a Claim against or an Interest in any
Debtor.
91. 89. “Impaired” means, with respect to a Class of Claims or Interests, a Class of
Claims or Interests that is impaired within the meaning of section 1124 of the Bankruptcy Code.
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92. 90. “Independent Directors” means David Barse, Paul Aronzon, Bret Wise, and
Ron Labrum, in their capacities as current or former independent directors of certain of the
Debtors.
93. “Insurance Policies” means all insurance policies, including the D&O Liability
Insurance Policies, that have been issued (or provide coverage) at any time to any of the Debtors
(or any of their predecessors) and all agreements, documents, or instruments relating thereto.
94. “Insurer” means any company or other entity that issued an Insurance Policy and
any third-party administrator of or for any Insurance Policy, along with any predecessors and/or
successor thereof.
95. 91. “Intercompany Claim” means any Claim held by a Debtor or an Affiliate of a
Debtor against a Debtor arising before the Petition Date.
96. 92. “Intercompany Interest” means an Interest in a Debtor held by a Debtor or an
Affiliate of a Debtor. For the avoidance of doubt, no Interest transferred to a Purchaser in
connection with the Sale Transactions shall be an Intercompany Interest.
97. 93. “Interest” means any equity security in a Debtor as defined in section 101(16)
of the Bankruptcy Code, including all issued, unissued, authorized, or outstanding shares of
capital stock of the Debtors and any other rights, options, warrants, stock appreciation rights,
phantom stock rights, restricted stock units, redemption rights, repurchase rights, convertible,
exercisable, or exchangeable securities, or other agreements, arrangements, or commitments of
any character relating to, or whose value is related to, any such interest or other ownership
interest in any Debtor whether or not arising under or in connection with any employment
agreement and whether or not certificated, transferable, preferred, common, voting, or
denominated “stock” or a similar security, including any Claims against any Debtor subject to
subordination pursuant to section 510(b) of the Bankruptcy Code arising from or related to any
of the foregoing.
98. 94. “Interim Compensation Order” means the Order (I) Establishing Procedures
for Interim Compensation and Reimbursement of Expenses For Retained Professionals and (II)
Granting Related Relief [Docket No. 218].
99. 95. “Interim DIP Order” means the Interim 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, (VI) Scheduling a Final Hearing, and (VI)
Granting Related Relief [Docket No. 103].
100. 96. “IRS” means the United States Internal Revenue Service.
101. 97. “Judicial Code” means title 28 of the United States Code, 28 U.S.C.
§§ 1–4001, as now in effect or hereafter amended, and the rules and regulations promulgated
thereunder.
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102. 98. “Law” means any federal, state, local, or foreign law (including common law),
statute, code, ordinance, rule, regulation, order, ruling, or judgment, in each case, that is validly
adopted, promulgated, issued, or entered by a governmental authority of competent jurisdiction
(including the Bankruptcy Court).
103. 99. “Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code.
104. 100. “Liquidating Trust” shall have the meaning ascribed to such term in Article
IV.E herein.
105. 101. “Liquidating Trust Assets” means any assets transferred from the
Wind-Down Debtors to the Liquidating Trust in accordance with Article IV.E herein.
106. 102. “Note Purchase Agreement” means that certain Note Purchase Agreement,
dated as of May 3, 2019, by and among the Obligated Subsidiaries (as defined therein), as
issuers, the Notes Agent, and the purchasers party thereto from time to time, providing for the
Notes, as amended, supplemented, or modified from time to time in accordance with its terms.
107. 103. “Notes” means the notes issued pursuant to the Note Purchase Agreement, in
the currently outstanding principal amount of €72,102,348.98.
108. 104. “Notes Agent” means Wilmington Trust, National Association, in its
capacity as notes agent and collateral agent under the Note Purchase Agreement, or any
successor notes agent or collateral agent by the terms set forth in the Note Purchase Agreement.
109. 105. “Notes Claim” means any Claim on account of the Notes or otherwise
arising under the Note Purchase Agreement (which, for the avoidance of doubt shall include
interest, fees, and all other amounts due and owing under the Notes Purchase Agreement).
110. 106. “Other Priority Claim” means any Claim, to the extent such Claim has not
already been paid during the Chapter 11 Cases, other than an Administrative Claim or a Priority
Tax Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code.
111. 107. “Other Secured Claim” means any Secured Claim that is not a DIP Claim, a
First Lien Claim, or a Second Lien Claim.
112. 108. “Permitted Transfer” means a transfer of all or a portion of the assets of the
Wind-Down Debtors to the Liquidating Trust in accordance with Article IV.E herein.
113. 109. “Person” has the meaning set forth in section 101(41) of the Bankruptcy
Code.
114. 110. “Petition Date” means June 9, 2024, the date on which Vyaire Medical, Inc.
and certain of its subsidiaries commenced the Chapter 11 Cases.
115. 111. “Plan” means this chapter 11 plan, including all exhibits, supplements
(including the Plan Supplement), appendices, and schedules (as amended, modified, or
supplemented from time to time in accordance with the terms hereof). Any Filed Plan shall be in
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form and substance acceptable to the DIP Lenders, Required Consenting First Lien Lenders, and
reasonably acceptable (solely to the extent required pursuant to the Restructuring Support
Agreement) the Sponsor.
116. 112. “Plan Administrator” means the Person or Entity, or any successor thereto,
designated by the Debtors and the Required DIP Lenders to have all powers and authorities set
forth in the Plan and the Plan Administrator Agreement.
117. 113. “Plan Administrator Agreement” means that certain agreement by and
among the Debtors, the Plan Administrator, and the Wind-Down Debtors, which shall be
included in the Plan Supplement.
118. 114. “Plan Supplement” means the compilation of documents and forms of
documents, agreements, schedules, and exhibits to the Plan (as may be altered, amended,
modified, or supplemented from time to time in accordance with the terms hereof and in
accordance with the Bankruptcy Code and Bankruptcy Rules) acceptable to the Required DIP
Lenders and to be Filed initially by the Debtors no later than the Plan Supplement Filing Date
and may be further amended thereafter, including the following to the extent applicable and
known at such time: (a) Schedule of Assumed Executory Contracts and Unexpired Leases, (b)
Schedule of Rejected Executory Contracts and Unexpired Leases, (c) Schedule of TSA
Contracts, (d) Schedule of Retained Causes of Action, (de) the Plan Administrator Agreement,
(ef) the Restructuring Transactions Memorandum, (fg) the Wind-Down Budget, and (gh) any
other necessary documentation related to the Sale Transactions or Restructuring Transactions in
accordance Article IV of the Plan. For the avoidance of doubt, the Restructuring Support
Agreement is not a Plan Supplement document.
119. 115. “Plan Supplement Filing Date” means (a) the date that is seven days prior to
the deadline to object to Confirmation of the Plan or (b) such later date as may be approved by
the Bankruptcy Court.
120. 116. “Prepetition First Lien RCF Loan Paydown Amount” means the amount of
$1,463,162.00 in satisfaction of the First Lien RCF Claims in accordance with the Final DIP
Order, plus the amount of any accrued and unpaid First Lien Adequate Protection Fees (as
defined in the Final DIP Order) owing to the First Lien Agent as of the date of the entry of the
Sale Orders.
121. 117. “Prepetition Loan Documents” means the First Lien Credit Agreement, the
Note Purchase Agreement, the Second Lien Credit Agreement, and all other agreements,
documents, and instruments related thereto, including any guaranty agreements, pledge and
collateral agreements, intercreditor agreements, and other security agreements.
122. 118. “Priority Tax Claim” means any Claim of a Governmental Unit of the kind
specified in section 507(a)(8) of the Bankruptcy Code that is not otherwise a Secured Tax Claim.
123. 119. “Professional” means an Entity: (a) retained pursuant to a Final Order in
accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for
services rendered and expenses incurred pursuant to sections 327, 328, 329, 330, 331, and 363 of
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the Bankruptcy Code; or (b) awarded compensation and reimbursement by the Bankruptcy Court
pursuant to section 503(b)(4) of the Bankruptcy Code.
124. 120. “Professional Fee Amount” means the aggregate amount of Professional Fee
Claims that the Professionals reasonably estimated in good faith that they have incurred or will
incur in rendering services to the Debtors, which estimates Professionals shall deliver to the
Debtors as set forth in Article II.B of this Plan.
125. 121. “Professional Fee Claim” means a Claim by a Professional seeking an award
by the Bankruptcy Court of compensation for services rendered or reimbursement of expenses
incurred through and including the Confirmation Date under sections 330, 331, 363, 503(b)(2),
503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code.
126. 122. “Professional Fee Escrow Account” means an account funded with Cash by
the Debtors or the Wind-Down Debtors, as applicable, on the Effective Date in an amount equal
to the total Professional Fee Amount.
127. 123. “Proof of Claim” means a written proof of Claim Filed against any of the
Debtors in the Chapter 11 Cases by the Claims Bar Date, the Administrative Claims Bar Date, or
the Governmental Bar Date, as applicable.
128. 124. “Purchaser” means, each of, Trudell and Zoll Medical, in each case pursuant
to the applicable Asset Purchase Agreement and as set forth in the applicable Sale Order.
129. 125. “Quarterly Fees” means any and all fees due and payable pursuant to section
1930 of Title 28 of the U.S. Code, together with the statutory rate of interest set forth in section
3717 of Title 31 of the U.S. Code to the extent applicable.
130. 126. “Reinstate,” “Reinstated,” or “Reinstatement” means, with respect to Claims
and Interests, that the Claim or Interest shall be rendered Unimpaired in accordance with section
1124 of the Bankruptcy Code.
131. 127. “Rejection Damages Claims Bar Date” shall have the meaning set forth in
Article V.B.
132. 128. “Related Party” means, each of, and in each case in its capacity as such,
current and former directors, managers, officers, special committee members, equity holders
(regardless of whether such interests are held directly or indirectly), affiliated investment funds
or investment vehicles, predecessors, participants, successors, assigns (whether by operation of
law or otherwise), subsidiaries, current, former, and future associated entities, managed or
advised entities, accounts or funds, partners, limited partners, general partners, principals,
members, management companies, fund advisors, managers, fiduciaries, trustees, employees,
agents (including any disbursing agent), advisory board members, financial advisors, attorneys
(including any attorneys or professionals retained by any current or former director or manager of
a Debtor in his or her capacity as director or manager as a Debtor), accountants, investment
bankers, consultants, representatives, and other professionals and advisors, and any such
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Person’s or Entity’s respective predecessors, successors, and assigns. For the avoidance of
doubt, the members of each Governing Body are Related Parties of the Debtors.
133. 129. “Released Parties” means, each of, and in each case, in their respective
capacities as such: (a) the Debtors and the Wind-Down Debtors, as applicable; (b) the Plan
Administrator; (c) each Consenting Stakeholder; (d) the Committee and its members; (e) the
Purchasers; (f) the DIP Lenders; (g) the Agents; (h) all Holders of Claims who opt in to granting
the releases set forth herein; (i) all Holders of Interests who opt in to granting the releases set
forth herein; (j) each current and former Affiliate of each Entity in clause (a) through the
following clause (k); and (k) each Related Party of each Entity in clause (a) through this clause
(k), each in their capacity as such; provided that, in each case, an Entity shall not be a Released
Party if it timely objects to the releases set forth in Article VIII.C and such objection is not
withdrawn or otherwise resolved before the Confirmation Order is entered.
134. “Released Preference Actions” means Causes of Action pursuant to section 547
of the Bankruptcy Code against Holders of General Unsecured Claims irrespective of whether
such claimants opt-in to the releases under the Plan, all of which Causes of Action shall be
deemed released pursuant to the Plan on the Effective Date; provided, however, that the Debtors’
or Wind-Down Debtors, shall retain such Causes of Action (and such Causes of Action shall not
be released) solely as a counterclaim against any Claim asserted against the Debtors, unless such
Claim relates to the Debtors’ failure to fulfill obligations under the Committee Settlement or
post-Effective Date obligations.
135. 130. “Releasing Parties” means, each of, and in each case, in their respective
capacities as such: (a) the Debtors and the Wind-Down Debtors, as applicable; (b) the Plan
Administrator; (c) each Consenting Stakeholder; (d) the Committee and its members; (e) the
Purchasers; (f) the DIP Lenders; (g) the Agents; (h) all Holders of Claims who opt in to granting
the releases set forth herein; (i) all Holders of Interests who opt in to granting the releases set
forth herein; (j) each current and former Affiliate of each Entity in clause (a) through the
following clause (k); and (k) each Related Party of each Entity in clause (a) through this clause
(k), for which such Entity is legally entitled to bind such Related Party to the releases contained
in the Plan under applicable law; provided, however, that in each case, an Entity shall not be
Releasing Party if it timely objects to the releases set forth in Article VIII.C and such objection is
not withdrawn or otherwise resolved before the Confirmation Order is entered.
136. 131. “Required DIP Lenders” has the meaning ascribed to such term under the
Restructuring Support Agreement.
137. “Residual Claims Recovery Pool” means up to the greater of (x) $250,000, and
(y) the amount of excess funds in the Debtors’ Professional Fee Escrow Account (the “Residual
Claims Recovery Pool Cap”), which shall be segregated by the Debtors and held by the Debtors
for the benefit of Allowed Administrative Claims, and any amounts remaining from the
Administrative Claims Reserve Amount, up to the Residual Claims Recovery Pool Cap after
satisfaction of the Debtors’ Wind Down obligations, including payment of Allowed
Administrative Claims, shall be used to fund the Residual GUC Recovery Pool. For the
avoidance of doubt, the Residual Claims Recovery Pool shall be funded solely from the residual
amount of the Administrative Claims Reserve under the Wind-Down Budget or Professional Fee
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Escrow Account up to the Residual Claims Recovery Pool Cap and shall not, in any way, (i)
limit the DIP Paydown Amount, (ii) limit the Prepetition First Lien RCF Loan Paydown Amount,
(iii) be funded from any proceeds derived from the Wind-Down Debtors’ Wind-Down of the
Wind-Down Debtor Assets, or (iv) be funded from any other source, and the Residual Claims
Recovery Pool shall be the fixed amount as set forth in this definition and shall not, in any way,
be modified or supplemented absent the written consent of the Required DIP Lenders in their
sole and absolute discretion; provided, however, that nothing herein shall eliminate the Debtors’
obligation to pay Allowed Administrative Expense Claims in full from amounts available in the
Wind-Down Budget.
138. “Residual Claims Recovery Pool Cap” has the meaning set forth in the definition
of Residual Claims Recovery Pool.
139. “Residual GUC Recovery Pool” means all amounts in the Residual Claims
Recovery Pool up to the Residual Claims Recovery Pool Cap after satisfaction of the Debtors’
Wind-Down obligations, including the payment of Allowed Administrative Claims. For the
avoidance of doubt, the Residual GUC Recovery Pool shall be funded solely from the
Wind-Down Budget or Professional Fee Escrow Account up to the Residual Claims Recovery
Pool Cap and shall not, in any way, (i) limit the DIP Paydown Amount, (ii) limit the Prepetition
First Lien RCF Loan Paydown Amount, (iii) be funded from any proceeds derived from the
Wind-Down Debtors’ Wind-Down of the Wind-Down Debtor Assets, or (iv) be funded from any
other source, and the Residual Claims Recovery Pool shall be the fixed amount as set forth in the
definition of “Residual Claims Recovery Pool” and shall not, in any way, be modified or
supplemented absent the written consent of the Required DIP Lenders in their sole and absolute
discretion.
140. 132. “Respiratory Diagnostics Assets Sale Order” means 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] (as may be modified,
amended, or supplemented by further Final Order), entered by the Bankruptcy Court on
September 4, 2024.
141. 133. “Respiratory Diagnostics Business” means the development, manufacturing,
marketing, leasing, and sale of medical devices for pulmonary function testing, cardiopulmonary
exercise testing, spirometry and associated software, services and consumables directly or
indirectly conducted by Sellers or any Acquired Entities, or in which Sellers or any Acquired
Entities are directly or indirectly engaged.
142. 134. “Restructuring Support Agreement” means that certain Restructuring
Support Agreement, dated as of the Petition Date, by and among the Debtors and the Consenting
Stakeholders, including all exhibits and schedules attached thereto, as may be amended in
accordance with its terms.
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143. 135. “Restructuring Transactions” means the transactions described in Article
IV.B and Article IV.DArticle IV.A and Article IV.E.
144. 136. “Restructuring Transactions Memorandum” means the summary of
transaction steps to consummate the Restructuring Transactions.
145. 137. “Retained Causes of Action” means those Causes of Action that shall vest in
the Wind-Down Debtors on the Effective Date. For the avoidance of doubt, (x) Retained Causes
of Action shall include any claims pursuant to chapter 5 of the Bankruptcy Code and all
Avoidance Actions, but shall not include any Causes of Action that are settled, released, or
exculpated under the Plan or that are expressly sold or assigned to any Purchaser, as set forth in
the applicable Asset Purchase Agreement, pursuant to the applicable Sale Order., and (y)
notwithstanding anything contained herein, in the Confirmation Order, or in the Plan
Supplement, on the Effective Date, the Debtors shall be deemed to have released the Released
Preference Actions (subject to the limited retention contained in the definition thereof).
146. 138. “Sale Orders” means, collectively, the Respiratory Diagnostics Assets Sale
Order and the Ventilation Assets Sale Order.
147. 139. “Sale Transactions” means the sale or series of sales of all, or substantially
all, or a portion of the Debtors’ assets to the applicable Purchaser and any transactions
undertaken in connection therewith as set forth in the Asset Purchase Agreements and approved
by the Sale Orders.
148. 140. “Sale Transactions Documentation” means all motions, filings, documents,
and agreements related to the Sale Transactions, including without limitation, any Asset
Purchase Agreement, any Sale Order, the Bidding Procedures, and the Bidding Procedures
Order.
149. 141. “Schedule of Assumed Executory Contracts and Unexpired Leases” means
the schedule (including any amendments or modifications thereto), if any, of the Executory
Contracts and Unexpired Leases to be assumed, or assumed and assigned, by the Wind-Down
Debtors on behalf of the applicable Debtor pursuant to the Plan.
150. 142. “Schedule of Rejected Executory Contracts and Unexpired Leases” means
the schedule (including any amendments or modifications thereto), if any, of the Executory
Contracts and Unexpired Leases to be rejected by the Wind-Down Debtors on behalf of the
applicable Debtor pursuant to the Plan.
151. 143. “Schedule of Retained Causes of Action” means the schedule of Retained
Causes of Action of the Debtors that are not released, waived, or transferred pursuant to the Plan,
as the same may be amended, modified, or supplemented from time to time by the Debtors.
152. 144. “Schedules” means, collectively, the schedules of assets and liabilities,
Schedules of Executory Contracts and Unexpired Leases, and statements of financial affairs
Filed by the Debtors pursuant to section 521 of the Bankruptcy Code, the official bankruptcy
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forms, and the Bankruptcy Rules, as such Schedules may be amended, modified, or
supplemented from time to time.
153. 145. “Second Lien Agent” means Wilmington Trust, National Association, in its
capacity as administrative agent and collateral agent under the Second Lien Credit Agreement, or
any successor administrative agent or collateral agent by the terms set forth in the Second Lien
Credit Agreement.
154. 146. “Second Lien Claim” means any Claim on account of the Second Lien Term
Loans or otherwise arising under the Second Lien Credit Agreement (which, for the avoidance of
doubt shall include interest, fees, and all other amounts due and owing under the Second Lien
Credit Agreement).
155. 147. “Second Lien Credit Agreement” means that certain Second Lien Credit
Agreement, dated as of April 16, 2018, by and between, among other parties, Holdings, the
Borrowers, certain other Company Parties as Guarantors (each, as defined therein), the Agent
thereunder, and the lenders from time to time party thereto, providing for the Second Lien Term
Loans, as amended, supplemented, or modified from time to time in accordance with its terms.
156. 148. “Second Lien Term Loans” means the term loans issued pursuant to the
Second Lien Credit Agreement, in the currently outstanding principal amount of
€106,178,070.76.
157. 149. “Section 510(b) Claim” means any Claim subject to subordination under
section 510(b) of the Bankruptcy Code; provided that a Section 510(b) Claim shall not include
any Claim subject to subordination under section 510(b) of the Bankruptcy Code arising from or
related to an Interest. For the avoidance of doubt, neither DIP Claims, First Lien Claims, or
Second Lien Claims are, and shall not be, Section 510(b) Claims.
158. 150. “Secured” means, when referring to a Claim, a Claim that is: (a) secured by
a Lien on collateral in which the applicable Estate has an interest, which Lien is valid, perfected,
and enforceable pursuant to applicable Law or by reason of a Final Order, or that is subject to
setoff pursuant to section 553 of the Bankruptcy Code, to the extent of the value of the creditor’s
interest in such Debtor’s interest in such collateral or to the extent of the amount subject to
setoff, as applicable, as determined pursuant to section 506(a) of the Bankruptcy Code and
applicable Law or (b) Allowed pursuant to the Plan as a Secured Claim.
159. 151. “Secured Tax Claim” means any Secured Claim that, absent its secured
status would be entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy
Code (determined irrespective of time limitations), including any related Secured Claims for
penalties.
160. 152. “Securities Act” means the U.S. Securities Act of 1933, as amended, 15
U.S.C. §§ 77a–77aa, or any similar federal, state, or local law, as now in effect or hereafter
amended, and the rules and regulations promulgated thereunder.
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161. 153. “Security” means a security as defined in section 2(a)(1) of the Securities
Act.
162. 154. “Sponsor” means Vyaire Intermediate HoldCo LP and certain other Entities
advised by Apax Partners LP that are signatories to the Restructuring Support Agreement or any
subsequent affiliate of Vyaire Intermediate HoldCo LP advised by Apax Partners LP that
becomes party thereto, in accordance with the terms of the Restructuring Support Agreement.
163. 155. “Tax Code” means the United States Internal Revenue Code of 1986, as now
in effect or hereafter amended, and the rules and regulations promulgated thereunder.
164. 156. “TopCo” means Vyaire Holding Company.
165. 157. “Transferred Causes of Action” means any and all Causes of Action held by
the Debtors that were or shall be transferred to the Purchasers pursuant to any Sale Transaction.
166. “Transition Services Agreements” means, collectively, the Trudell TSA and the
Zoll TSA.
167. 158. “Trudell” means Trudell Medical Limited, whose bid for certain Respiratory
Diagnostics Assets was selected by the Debtors and approved by the Respiratory Diagnostics
Sale Order as the highest or otherwise best bid in accordance with the Bidding Procedures Order.
168. 159. “Trudell APA” means that certain Asset Purchase Agreement, as may be
amended, supplemented, or otherwise modified by the parties thereto, dated September 5, 2024,
by and among Vyaire Medical Inc. and Trudell for the sale of certain of the Debtors’ assets
associated with the Respiratory Diagnostics Business, subject to the terms of the Respiratory
Diagnostics Sale Order.
169. “Trudell APA Outside Date” means November 15, 2024.
170. “Trudell Claims Funding Obligations” means all amounts, if any, that Debtors are
to remit to creditors on Trudell’s behalf under the Trudell APA, including any amendments
thereto, or otherwise.
171. “Trudell TSA” means that certain transition services agreement entered into
between the Debtors or the Wind-Down Debtors, on the one hand, and Trudell in connection
with the Trudell APA.
172. “TSA Contract” means an Executory Contract or Unexpired Lease to which one
or more of the Debtors is a party that is subject to assumption, assumption and assignment, or
rejection under section 365 or 1123 of the Bankruptcy Code and identified on the TSA Contract
Schedule.
173. “TSA Contract Counterparty” means any counterparty to a TSA Contract in
connection with the Trudell TSA and/or the Zoll TSA.
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174. “TSA Contract Schedule” means the Schedule of TSA Contracts set forth in the
Plan Supplement.
175. 160. “U.S. Trustee” means the Office of the United States Trustee for the District
of Delaware.
176. 161. “Unexpired Lease” means a lease of nonresidential real property to which
one or more of the Debtors is a party that is subject to assumption, assumption and assignment,
or rejection under section 365 or section 1123 of the Bankruptcy Code.
177. 162. “Unimpaired” means, with respect to a Class of Claims or Interests, a Class
of Claims or Interests that is unimpaired within the meaning of section 1124 of the Bankruptcy
Code.
178. 163. “Ventilation Assets Sale Order” means 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] (as may be modified, amended, or supplemented
by further Final Order), entered by the Bankruptcy Court on September 4, 2024.
179. 164. “Ventilation Business” means the manufacturing and sale of medical
ventilators and associated services and consumables for acute, nonacute, and neonatal
applications.
180. 165. “Wind Down” means, the wind down, liquidation, and dissolution of the
Debtors’ Estates following the Effective Date as set forth in Article IV hereof.
181. 166. “Wind-Down Budget” means the budget funding the Wind Down, in an
amount no more than $25.1 million and which shall include certain amounts required to fund the
wind down of the operations of certain non-Debtor Affiliates and/or satisfy certain required
obligations in connection therewith (each in accordance with the Asset Purchase Agreements and
the Sale Orders), as acceptable to the Debtors and the Required DIP Lenders, as may be amended
by the Debtors, Wind-Down Debtors, or the Plan Administrator, as applicable, with the consent
of the Required DIP Lenders.
182. 167. “Wind-Down Debtor” means the Debtor or Debtors or any successor or
successors thereto after the Effective Date responsible for effectuating the Wind Down and
implementing the terms of the Plan.
183. 168. “Wind-Down Debtor Account” means the Debtors’ bank account or accounts
used to fund all expenses and payments required to be made by the Wind-Down Debtors, which
account will be funded on the Effective Date with Available Cash in the amount of the
Wind-Down Debtor Account Amount. Following the Wind Down, any remaining amounts in
the Wind-Down Debtor Account shall be distributed in accordance with Article III hereof. For
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the avoidance of doubt, the Wind-Down Debtor Account and the proceeds therein shall become
property of the Wind-Down Debtors on the Effective Date.
184. 169. “Wind-Down Debtor Account Amount” means the amount reserved by the
Plan Administrator, with the consent of the Required DIP Lenders, to fund the Wind Down in
accordance with the Wind-Down Budget which, for avoidance of doubt, shall be no more than
$25.1 million.
185. 170. “Wind-Down Debtor Assets” means, following the consummation of the Sale
Transactions, all of the remaining assets of the Debtors’ Estates, including the Wind-Down
Debtor Account Amount but excluding the DIP Paydown Amount, the Prepetition First Lien
RCF Loan Paydown Amount, and the amounts necessary to pay the First Lien Agent Adequate
Protection Claims in full.
186. 171. “Zoll APA” means that certain Asset Purchase Agreement, as may be
amended, supplemented, or otherwise modified by the parties thereto, dated September 1, 2024,
by and among Vyaire Medical Inc. and Zoll Medical for certain of the Debtors’ assets related to
the Ventilation Business, subject to the terms of the Ventilation Assets Sale Order.
187. “Zoll Claims Funding Obligations” means all amounts due and owing by Zoll
Medical under the Zoll APA, including its amendments, including, without limitation, (w) an
amount of not less than $5.9 million on account of Administrative Expense Claims; (x) an
amount of not less than $1.715 million in connection with the closing of the Zoll APA on
account of Claims arising under section 503(b)(9) of the Bankruptcy Code; (y) an amount of not
less than the lesser of $1.6 million and the value of the Executory Contracts and Unexpired
Leases assumed and assigned to Zoll Medical on account of Cure Costs; and (z) any other
amounts required to be paid to creditors or which Zoll Medical is required to remit to the Debtors
under the Zoll APA, including all amendments thereto.
188. 172. “Zoll Medical” means Zoll Medical Corporation, whose bid for the
Ventilation Assets was selected by the Debtors and approved by the Ventilation Assets Sale
Order as the highest or otherwise best bid in accordance with the Bidding Procedures Order.
189. “Zoll TSA” means that certain transition services agreement entered into between
the Debtors or the Wind-Down Debtors, on the one hand, and Zoll in connection with the Zoll
APA.
B. Rules of Interpretation.
For purposes of this Plan: (i) in the appropriate context, each term, whether stated in the
singular or the plural, shall include both the singular and the plural, and pronouns stated in the
masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter
gender; (ii) unless otherwise specified, any reference herein to a contract, lease, instrument,
release, indenture, or other agreement or document being in a particular form or on particular
terms and conditions means that the referenced document shall be substantially in that form or
substantially on those terms and conditions; (iii) unless otherwise specified, any reference herein
to an existing document, schedule, or exhibit, whether or not Filed, having been Filed or to be
Filed shall mean that document, schedule, or exhibit, as it may thereafter be amended, restated,
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supplemented, or otherwise modified in accordance with the Plan or Confirmation Order, as
applicable; (iv) any reference to an Entity as a Holder of a Claim or Interest includes that Entity’s
successors and assigns; (v) unless otherwise specified, all references herein to “Articles” are
references to Articles hereof or hereto; (vi) unless otherwise specified, all references herein to
exhibits are references to exhibits in the Plan Supplement; (vii) unless otherwise specified, the
words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to a particular
portion of the Plan; (viii) subject to the provisions of any contract, certificate of incorporation,
bylaw, instrument, release, or other agreement or document created or entered into in connection
with the Plan, the rights and obligations arising pursuant to the Plan shall be governed by, and
construed and enforced in accordance with, applicable federal law, including the Bankruptcy
Code and the Bankruptcy Rules, or, if no rule of Law or procedure is supplied by federal Law
(including the Bankruptcy Code and the Bankruptcy Rules) or otherwise specifically stated, the
laws of the State of Delaware, without giving effect to the principles of conflict of laws; (ix)
captions and headings to Articles are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation of the Plan; (x) the rules of construction set
forth in section 102 of the Bankruptcy Code shall apply; (xi) all references to docket numbers of
documents Filed in the Chapter 11 Cases are references to the docket numbers under the
Bankruptcy Court’s CM/ECF system; (xii) all references to statutes, regulations, orders, rules of
courts, and the like shall mean as amended from time to time, and as applicable to the Chapter 11
Cases, unless otherwise stated; (xiii) any effectuating provisions may be interpreted by the
Wind-Down Debtors in such a manner that is consistent with the overall purpose and intent of
the Plan all without further notice to or action, order, or approval of the Bankruptcy Court or any
other Entity, and such interpretation shall be conclusive; (xiv) any references herein to the
Effective Date shall mean the Effective Date or as soon as reasonably practicable thereafter; (xv)
the words “include” and “including,” and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words “without limitation”; (xvi) all
references herein to consent, acceptance, or approval shall be deemed to include the requirement
that such consent, acceptance, or approval be evidenced by a writing, which may be conveyed by
counsel for the respective parties that have such consent, acceptance, or approval rights,
including by electronic mail; and (xvii) any term used in capitalized form herein that is not
otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the
meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may
be.
C. Computation of Time.
Unless otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a)
shall apply in computing any period of time prescribed or allowed herein. If the date on which a
transaction may occur pursuant to the Plan shall occur on a day that is not a Business Day, then
such transaction shall instead occur on the next succeeding Business Day. Any action to be
taken on the Effective Date may be taken on or as soon as reasonably practicable after the
Effective Date.
D. Governing Law.
Unless a rule of Law or procedure is supplied by federal Law (including the Bankruptcy
Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of the State of
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Delaware, without giving effect to the principles of conflict of laws, shall govern the rights,
obligations, construction, and implementation of the Plan, any agreements, documents,
instruments, or contracts executed or entered into in connection with the Plan (except as
otherwise set forth in those agreements, in which case the governing Law of such agreement
shall control); provided, however, that corporate, limited liability company, or limited liability
partnership governance matters relating to the Debtors or the Wind-Down Debtors, as applicable,
not incorporated in Delaware shall be governed by the laws of the jurisdiction of incorporation or
formation of the relevant Debtor or the Wind-Down Debtor, as applicable.
E. Reference to Monetary Figures.
All references in the Plan to monetary figures shall refer to currency of the United States
of America, unless otherwise expressly provided herein.
F. Reference to the Debtors or the Wind-Down Debtors.
Except as otherwise specifically provided in the Plan to the contrary, references in the
Plan to the Debtors or to the Wind-Down Debtors means the Debtors and the Wind-Down
Debtors, as applicable, to the extent the context requires.
G. No Substantive Consolidation; Limited Administrative Consolidation.
Although for purposes of administrative convenience and efficiency the Plan has been
Filed as a joint plan for each of the Debtors and presents together Classes of Claims against, and
Interests in, the Debtors, the Plan does not provide for the substantive consolidation of any of the
Debtors except for the limited purposes set forth herein. The entry of the Confirmation Order
shall constitute the approval, pursuant to section 105(a) of the Bankruptcy Code, effective as of
the Effective Date, of the limited consolidation of each of the Debtors, and their respective
estates, solely for voting, confirmation, and distribution purposes under the Plan. This limited
consolidation shall not affect (other than for purposes related to funding distributions under the
Plan) (a) the legal and organizational structure of the Debtors, (b) defenses to any Causes of
Action or requirements for any third party to establish mutuality to assert a right of setoff, and (c)
distributions out of any insurance policies or proceeds of such policies.
H. Controlling Document.
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 and
any document or instrument in the Plan Supplement, the terms of the relevant document or
instrument in the Plan Supplement shall control (unless stated otherwise in such Plan
Supplement document or in the Confirmation Order). In the event of any inconsistency between
the Plan and the Confirmation Order, the Confirmation Order shall control.
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ARTICLE II.
ADMINISTRATIVE CLAIMS,
PROFESSIONAL FEE CLAIMS, DIP CLAIMS,
AND PRIORITY TAX CLAIMS
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims,
Professional Fee Claims, DIP Claims, and Priority Tax Claims have not been classified and,
thus, are excluded from the Classes of Claims and Interests set forth in Article III.
A. General Administrative Claims.
Unless otherwise agreed to by the Holder of an Allowed Administrative Claim and the
Debtors or the Wind-Down Debtors, as applicable, to the extent an Allowed Administrative
Claim has not already been paid in full or otherwise satisfied during the Chapter 11 Cases, each
Holder of an Allowed Administrative Claim (other than Holders of Professional Fee Claims, the
DIP Claims, and Claims for fees and expenses pursuant to section 1930 of chapter 123 of title 28
of the United States Code) will receive in full and final satisfaction of its Allowed
Administrative Claim in an amount of Cash equal to the amount of the unpaid portion of such
Allowed Administrative Claim in accordance with the following: (1) if such Administrative
Claim is Allowed on or prior to the Effective Date on the Effective Date or as soon as reasonably
practicable thereafter (or, if not then due, when such Allowed Administrative Claim is due or as
soon as reasonably practicable thereafter); (2) if such Administrative Claim is not Allowed as of
the Effective Date, no later than 30 days after the date on which an order Allowing such
Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter; (3)
if such Allowed Administrative Claim is based on liabilities incurred by the Debtors in the
ordinary course of their business after the Petition Date, in accordance with the terms and
conditions of the particular transaction or course of business giving rise to such Allowed
Administrative Claim, without any further action by the Holder of such Allowed Administrative
Claim; (4) at such time and upon such terms as may be agreed upon by the Holder of such
Allowed Administrative Claim and the Debtors or the Wind-Down Debtors, as applicable; or
(5) at such time and upon such terms as set forth in a Final Order of the Bankruptcy Court.
Except with respect to Administrative Claims that are Professional Fee Claims, DIP Claims, or
subject to section 503(b)(1)(D) of the Bankruptcy Code, and unless previously Filed, requests for
payment of Administrative Claims must be Filed and served on the Wind-Down Debtors no later
than the Administrative Claims Bar Date pursuant to the procedures specified in the
Confirmation Order and the notice of entry of the Confirmation Order. Objections to such
requests must be Filed and served on the Wind-Down Debtors and the requesting party by the
Administrative Claims Objection Bar Date. After notice and a hearing in accordance with the
procedures established by the Bankruptcy Code, the Bankruptcy Rules, and prior Bankruptcy
Court orders, the Allowed amounts, if any, of Administrative Claims shall be determined by, and
satisfied in accordance with an order that becomes a Final Order of, the Bankruptcy Court.
Holders of Administrative Claims that are required to File and serve a request for
payment of such Administrative Claims that do not File and serve such a request by the
Administrative Claims Bar Date shall be forever barred, estopped, and enjoined from asserting
such Administrative Claims against the Debtors, the Wind-Down Debtors, or their respective
property, and such Administrative Claims shall be deemed discharged as of the Effective Date
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without the need for any objection from the Wind-Down Debtors or any notice to or action,
order, or approval of the Bankruptcy Court. Notwithstanding the foregoing, no request for
payment of an Administrative Claim need be Filed with the Bankruptcy Court with respect to an
Administrative Claim previously Allowed.
B. Professional Fee Claims.
1. Final Fee Applications and Payment of Professional Fee Claims.
All final requests for payment of Professional Fee Claims for services rendered and
reimbursement of expenses incurred prior to the Confirmation Date must be Filed no later than
60 days after the Effective Date. The Bankruptcy Court shall determine the Allowed amounts of
such Professional Fee Claims after notice and a hearing in accordance with the procedures
established by the Bankruptcy Code, Bankruptcy Rules, and prior Bankruptcy Court orders. The
Wind-Down Debtors shall pay the amount of the Allowed Professional Fee Claims owing to the
Professionals in Cash to such Professionals, including from funds held in the Professional Fee
Escrow Account, when such Professional Fee Claims are Allowed or awarded by entry of an
order of the Bankruptcy Court.
2. Professional Fee Escrow Account.
As soon as is reasonably practicable after the Confirmation Date and no later than the
Effective Date, the Debtors shall establish and fund the Professional Fee Escrow Account with
Cash equal to the Professional Fee Amount. The Professional Fee Escrow Account shall be
maintained in trust solely for the benefit of the Professionals and for no other Entities until all
Professional Fee Claims Allowed by the Bankruptcy Court have been indefeasibly paid in full to
the Professionals pursuant to one or more Final Orders of the Bankruptcy Court. No Liens,
Claims, or Interests shall encumber the Professional Fee Escrow Account or Cash held in the
Professional Fee Escrow Account in any way. Funds held in the Professional Fee Escrow
Account shall not be considered property of the Estates of the Debtors or the Wind-Down
Debtors.
The amount of Allowed Professional Fee Claims owing to the Professionals shall be paid
in Cash to each such Professional by the Debtors or the Wind-Down Debtors, as applicable, from
the funds held in the Professional Fee Escrow Account or the Wind-Down Debtor Account, as
applicable, as soon as reasonably practicable after such Professional Fee Claims are Allowed by
an order of the Bankruptcy Court; provided that the Debtors’ and the Wind-Down Debtors’
obligations to pay Allowed Professional Fee Claims shall not be limited nor be deemed limited
to funds held in the Professional Fee Escrow Account. When all Professional Fee Claims
Allowed by the Bankruptcy Court have been irrevocably paid in full to the Professionals
pursuant to one or more Final Orders of the Bankruptcy Court, any remaining Cash held in the
Professional Fee Escrow Account shall promptly be paid to the Wind-Down Debtors and
constitute part of the Wind-Down Debtor Assets without any further notice to or action, order, or
approval of the Bankruptcy Court, subject in all respects to the terms of the Committee
Settlement set forth in this Plan.
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3. Professional Fee Amount.
The Professionals shall provide a reasonable and good-faith estimate of their unpaid
Professional Fee Claims and other unpaid fees and expenses incurred in rendering services to the
Debtors before and as of the Effective Date projected to be outstanding as of the Effective Date,
and shall deliver such estimate to the Debtors no later than 5 days before the anticipated
Effective Date; provided, however, that such estimate shall not be considered or deemed an
admission or limitation with respect to the amount of the fees and expenses that may be Allowed
pursuant to the Professional’s final request for payment of Professional Fee Claims. If a
Professional does not provide an estimate, the Debtors or the Wind-Down Debtors, as applicable,
may estimate the unpaid and unbilled fees and expenses of such Professional. The total
aggregate amount so estimated as of the Effective Date shall be utilized by the Debtors to
determine the amount to be funded to the Professional Fee Escrow Account, provided that the
Wind-Down Debtors shall use Cash on hand or from the Wind-Down Debtor Account to
increase the amount of the Professional Fee Escrow Account to the extent fee applications are
Filed after the Effective Date in excess of the amount held in the Professional Fee Escrow
Account based on such estimates.
4. Post-Confirmation Date Fees and Expenses.
Except as otherwise specifically provided in the Plan, from and after the Confirmation
Date, the Debtors or the Wind-Down Debtors, as applicable, shall, in the ordinary course of
business and without any further notice to or action, order, or approval of the Bankruptcy Court,
pay in Cash the reasonable and documented legal, professional, or other fees and expenses
related to implementation of the Plan and Consummation incurred by the Debtors or the
Wind-Down Debtors. If the Debtors or the Wind-Down Debtors (as applicable) dispute the
reasonableness of any such invoice, the Debtors or the Wind-Down Debtors (as applicable) or
the affected professional may submit such dispute to the Bankruptcy Court for a determination of
the reasonableness of any such invoice, and the disputed portion of such invoice shall not be paid
until the dispute is resolved. Upon the Effective Date, any requirement that Professionals
comply with sections 327 through 331, 363, and 1103 of the Bankruptcy Code or the Interim
Compensation Order in seeking retention or compensation for services rendered after such date
shall terminate, and the Wind-Down Debtors or the Plan Administrator, as applicable, may
employ and pay any Professional in the ordinary course of business without any further notice to
or action, order, or approval of the Bankruptcy Court.
C. DIP Claims.
On the Effective Date, except to the extent that a Holder of an Allowed DIP Claim agrees
to less favorable or alternative treatment, on or before the Effective Date, in full and final
satisfaction, compromise, settlement, release, and discharge of and in exchange for all Allowed
DIP Claims, each Holder of an Allowed DIP Claim (which shall include interest, fees, and all
other amounts due and owing under the DIP Facility) has consented to receive and shall receive,
payment in full in Cash in the amount of such Holder’s pro rata share of the Distributable Value,
in accordance with the terms of the DIP Documents and the Sale Orders notwithstanding any
deficiency in the payment of the Allowed DIP Claims.
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Pursuant to the Sale Orders, upon consummation of the Sale Transactions, each Holder of
Allowed DIP Claims has consented to receive and shall receive their share of the DIP Paydown
Amount in accordance with the Sale Orders and DIP Documents in partial satisfaction of their
Allowed DIP Claims on a dollar-for-dollar basis. For the avoidance of doubt, no payments or
distributions shall be made on account of any DIP Claims related to the DIP Roll-Up Loans
unless and until the Prepetition First Lien RCF Loan Paydown Amount and the First Lien Agent
Adequate Protection Claims have been paid in full in cash.
Pursuant to the Sale Orders, upon consummation of the Sale Transactions, each Holder of
Allowed First Lien RCF Claims has consented to receive and shall receive their share of the
Prepetition First Lien RCF Loan Paydown Amount in accordance with the Sale Orders and DIP
Documents in full and final satisfaction of their Allowed First Lien RCF Claims.
D. Priority Tax Claims.
Except to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less
favorable treatment, in full and final satisfaction, compromise, settlement, release, and discharge
of, and in exchange for, each Allowed Priority Tax Claim, each Holder of such Allowed Priority
Tax Claim shall be treated in accordance with the terms set forth in section 1129(a)(9)(C) of the
Bankruptcy Code.
E. Statutory Fees.
All 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
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.
ARTICLE III.
CLASSIFICATION AND TREATMENT OF
CLAIMS AND INTERESTS
A. Classification of Claims and Interests.
Except for the Claims addressed in Article II hereof, all Claims and Interests are
classified in the Classes set forth in this Article III for all purposes, including voting,
Confirmation, and distributions pursuant to the Plan and in accordance with section 1122 and
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1123(a)(1) of the Bankruptcy Code. A Claim or an Interest is classified in a particular Class only
to the extent that such Claim or Interest, qualifies within the description of that Class and is
classified in other Classes to the extent that any portion of such Claim or Interest qualifies within
the description of such other Classes. A Claim or an Interest also is classified in a particular
Class for the purpose of receiving distributions under the Plan only to the extent that such Claim
or Interest is an Allowed Claim or Allowed Interest in that Class and has not been paid, released,
or otherwise satisfied prior to the Effective Date.
The classification of Claims and Interests against each Debtor pursuant to the Plan is as
set forth below. The Plan shall apply as a separate Plan for each of the Debtors, and the
classification of Claims and Interests set forth herein shall apply separately to each of the
Debtors. All of the potential Claims for the Debtors are set forth herein.
Class Claim/Interest Status Voting Rights
1 Secured Tax Claims Unimpaired Not Entitled to Vote (Presumed to
Accept)
2 Other Secured Claims Unimpaired Not Entitled to Vote (Presumed to
Accept)
3 Other Priority Claims Unimpaired Not Entitled to Vote (Presumed to
Accept)
4 First Lien Claims Impaired Entitled to Vote
5 Second Lien Claims Impaired Entitled to Vote
6 General Unsecured Claims Impaired Not Entitled to Vote (Deemed to
Reject)
Unimpaired / Not Entitled to Vote (Presumed to
7 Intercompany Claims
Impaired Accept or Deemed to Reject)
Unimpaired / Not Entitled to Vote (Presumed to
8 Intercompany Interests
Impaired Accept or Deemed to Reject)
9 Existing Equity Interests Impaired Not Entitled to Vote (Deemed to
Reject)
10 510(b) Claims Impaired Not Entitled to Vote (Deemed to
Reject)
B. Treatment of Claims and Interests.
Subject to Article VI hereof, each Holder of an Allowed Claim or Allowed Interest, as
applicable, shall receive under the Plan the treatment described below in full and final
satisfaction, compromise, settlement, and release of, and exchange for such Holder’s Allowed
Claim or Allowed Interest, except to the extent different treatment is agreed to by the Debtors
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and the Holder of such Allowed Claim or Allowed Interest, as applicable. Unless otherwise
indicated, the Holder of an Allowed Claim or Allowed Interest, as applicable, shall receive such
treatment on the later of the Effective Date and the date such Holder’s Claim or Interest becomes
an Allowed Claim or Allowed Interest or as soon as reasonably practicable thereafter.
1. Class 1 – Secured Tax Claims.
(a) Classification: Class 1 consists of all Secured Tax Claims.
(b) Treatment: Except to the extent that a Holder of an Allowed Secured Tax
Claim agrees to less favorable treatment, in full and final satisfaction,
compromise, settlement, and release of and in exchange for such Secured
Tax Claim, on or as soon as reasonably practicable after the later to occur
of (i) the Effective Date and (ii) the date such Claim becomes Allowed (or
as otherwise set forth in the Plan), each Holder of a Secured Tax Claim
shall receive, at the option of the Plan Administrator:
(i) payment in full in Cash of such Holder’s Allowed Secured Tax
Claim;
(ii) equal semi-annual Cash payments commencing as of the Effective
Date or as soon as reasonably practicable thereafter and continuing
for five years, in an aggregate amount equal to such Allowed
Secured Tax Claim, together with interest at the applicable
non-default rate under non-bankruptcy law, subject to the option of
the Plan Administrator to prepay the entire amount of such
Allowed Secured Tax Claim during such time period.
(c) Voting: Class 1 is Unimpaired under the Plan. Each Holder of a Class 1
Secured Tax Claim is conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, each
Holder of a Class 1 Secured Tax Claim is not entitled to vote to accept or
reject the Plan.
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2. Class 2 – Other Secured Claims.
(d) Classification: Class 2 consists of all Other Secured Claims.
(e) Treatment: Except to the extent that a Holder of an Allowed Other
Secured Claim agrees to less favorable treatment, in full and final
satisfaction, compromise, settlement, and release of and in exchange for
such Allowed Other Secured Claim, on or as soon as reasonably
practicable after the Effective Date, each Holder of an Allowed Other
Secured Claim shall receive, at the option of the applicable Debtors or
Wind-Down Debtors:
(i) payment in full in Cash of such Holder’s Allowed Other Secured
Claim;
(ii) the collateral securing such Holder’s Allowed Other Secured
Claim;
(iii) Reinstatement of such Holder’s Allowed Other Secured Claim
pursuant to section 1124 of the Bankruptcy Code; or
(iv) such other treatment rendering such Holder’s Allowed Other
Secured Claim Unimpaired in accordance with section 1124 of the
Bankruptcy Code.
(f) Voting: Class 2 is Unimpaired under the Plan. Each Holder of a Class 2
Other Secured Claim is conclusively presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code. Therefore, each
Holder of a Class 2 Other Secured Claim is not entitled to vote to accept
or reject the Plan.
3. Class 3 – Other Priority Claims.
(a) Classification: Class 3 consists of all Other Priority Claims.
(b) Treatment: Except to the extent that a Holder of an Allowed Other
Priority Claim agrees to less favorable treatment, in full and final
satisfaction, compromise, settlement, and release of and in exchange for
such Allowed Other Priority Claim, on or as soon as reasonably
practicable after the later to occur of (i) the Effective Date and (ii) the date
such Claim becomes Allowed (or as otherwise set forth in the Plan), each
Holder of an Allowed Administrative, Allowed Priority Tax Claim, or
Allowed Other Claims, will either be satisfied in full, in Cash, or
otherwise receive treatment consistent with the provisions of section
1129(a)(9) of the Bankruptcy Code.
(c) Voting: Class 3 is Unimpaired under the Plan. Holders of Other Priority
Claims are conclusively presumed to have accepted the Plan pursuant to
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section 1126(f) of the Bankruptcy Code. Therefore, such Holders are not
entitled to vote to accept or reject the Plan.
4. Class 4 – First Lien Claims.
(a) Classification: Class 4 consists of all First Lien Claims.
(b) Treatment: Except to the extent that a Holder of an Allowed First Lien
Claim agrees to less favorable treatment, in full and final satisfaction,
compromise, settlement, and release of and in exchange for such Allowed
First Lien Claim, on or as soon as reasonably practicable after the
Effective Date, each Holder of an Allowed First Lien Claim shall receive
solely its pro rata share of Distributable Value, if any, after all Allowed
DIP Claims have been satisfied in full in accordance with Article II.C;
provided, however, that: (i) in no event shall any Holder of a First Lien
Claim receive, on account of such Claim, a recovery greater than 100% of
the Allowed amount of such Claim, and (ii) notwithstanding anything
herein to the contrary, the Prepetition First Lien RCF Loan Paydown
Amount and the First Lien Agent Adequate Protection Claims shall have
been paid in full in cash on or before the Effective Date.
(c) Voting: Class 4 is Impaired under the Plan. Holders of First Lien Claims
are entitled to vote to accept or reject the Plan.
5. Class 5 –Second Lien Claims.
(a) Classification: Class 5 consists of all Second Lien Claims.
(b) Treatment: Except to the extent that a Holder of an Allowed Second Lien
Claim agrees to less favorable treatment, in full and final satisfaction,
compromise, settlement, and release of and in exchange for such Allowed
Second Lien Claim, on or as soon as reasonably practicable after the
Effective Date, each Holder of an Allowed Second Lien Claim shall
receive solely its pro rata share of Distributable Value, if any, after all
Allowed DIP Claims and all Allowed Claims in Class 4 have been
satisfied in full; provided, however, that in no event shall any Holder of
Second Lien Claim receive, on account of such Claim, a recovery greater
than 100% of the Allowed amount of such Claim.
(c) Voting: Class 5 is Impaired under the Plan. Holders of Second Lien
Claims are entitled to vote to accept or reject the Plan.
6. Class 6 – General Unsecured Claims.
(a) Classification: Class 6 consists of the General Unsecured Claims.
(b) Treatment: On the Effective Date, each General Unsecured Claim shall be
released, and each Holder of a General Unsecured ClaimClaims shall not
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receive or retain any distribution, property, or other value on account of
such General Unsecured Claim. ; provided, however, that each Holder of
an Allowed General Unsecured Claim that is (x) included on the
Schedules and (i) is not designated as being contingent, unliquidated, or
disputed, and (ii) does not exceed $500,000, (y) included on the Schedules
and is not designated as being contingent, unliquidated, or disputed and
such Holder elects to reduce such General Unsecured Claim to not exceed
$500,000, or (z) otherwise resolved by the Debtors or the Wind-Down
Debtors, as applicable, and the Holder of such Allowed General
Unsecured Claim in a manner that is consistent with (x) or (y) above, shall
receive its pro rata share of the Residual GUC Recovery Pool, unless such
Holder agrees to less favorable treatment.
(c) Voting: Class 6 is Impaired under the Plan. Holders of Allowed General
Unsecured Claims are deemed to have rejected the Plan pursuant to
section 1126(g) of the Bankruptcy Code. Holders of General Unsecured
Claims are not entitled to vote to accept or reject the Plan.
7. Class 7 – Intercompany Claims.
(a) Classification: Class 7 consists of all Intercompany Claims.
(b) Treatment: Each Allowed Intercompany Claim, to the extent not assumed
pursuant to the terms of any Sale Order, shall, at the election of the
Debtors or Wind-Down Debtors, be (a) Reinstated, (b) converted to
equity, (c) otherwise set off, settled, distributed, contributed, cancelled, or
released; or (d) otherwise addressed at the option of the Debtors or
Wind-Down Debtors without any distribution on account of such
Intercompany Claims.
(c) Voting: Holders of Intercompany Claims are either Unimpaired, and such
Holders of Intercompany Claims are conclusively presumed to have
accepted the Plan under section 1126(f) of the Bankruptcy Code, or
Impaired, and such Holders of Intercompany Claims are deemed to have
rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
Therefore, Holders of Intercompany Claims are not entitled to vote to
accept or reject the Plan.
8. Class 8 – Intercompany Interests.
(a) Classification: Class 8 consists of all Intercompany Interests.
(b) Treatment: Allowed Intercompany Interests, to the extent not assumed
pursuant to the terms of any Sale Order, shall, at the election of the
Debtors or Wind-Down Debtors, be (a) Reinstated or (b) set off, settled,
addressed, distributed, contributed, merged, cancelled, or released, or (c)
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otherwise addressed at the option of the Wind-Down Debtors or Debtors
without any distribution on account of such Intercompany Interests.
(c) Voting: Holders of Intercompany Interests are either Unimpaired, and
such Holders of Intercompany Claims are conclusively presumed to have
accepted the Plan under section 1126(f) of the Bankruptcy Code, or
Impaired, and such Holders of Intercompany Interests are deemed to have
rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
Holders of Intercompany Interests are not entitled to vote to accept or
reject the Plan.
9. Class 9 – Existing Equity Interests.
(a) Classification: Class 9 consists of all Existing Equity Interests.
(b) Treatment: On the Effective Date, all Existing Equity Interests shall be
cancelled, released, and extinguished, and will be of no further force or
effect. Holders of Interests shall receive no recovery or distribution on
account of their Interests.
(c) Voting: Class 9 is Impaired under the Plan. Holders of Existing Equity
Interests are conclusively deemed to have rejected the Plan under section
1126(g) of the Bankruptcy Code. Therefore, such Holders of Existing
Equity Interests are not entitled to vote to accept or reject the Plan.
10. Class 10 – Section 510(b) Claims.
(a) Classification: Class 10 consists of all Section 510(b) Claims.
(b) Treatment: On the Effective Date, all Section 510(b) Claims shall be
cancelled, released, and extinguished, and will be of no further force or
effect. Holders of Section 510(b) Claims shall receive not recovery or
distribution on account of such Claims.
(c) Voting: Class 10 is Impaired under the Plan. Holders of Section 510(b)
Claims are conclusively deemed to have rejected the Plan under section
1126(g) of the Bankruptcy Code. Therefore, Holders of Section 510(b)
Claims are not entitled to vote to accept or reject the Plan.
C. Special Provision Governing Unimpaired Claims.
Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’
or the Wind-Down Debtors’ rights in respect of any Claims that are Unimpaired, including all
rights in respect of legal and equitable defenses to or setoffs or recoupments against any such
Claims that are Unimpaired. Unless otherwise Allowed, Claims that are Unimpaired shall
remain Disputed Claims under the Plan.
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D. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code.
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of
Confirmation by acceptance of the Plan by one or more of the Classes entitled to vote pursuant to
Article III.B herein. The Debtors shall seek Confirmation of the Plan pursuant to section 1129(b)
of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests. The Debtors
reserve the right to modify the Plan in accordance with Article X herein to the extent, if any, that
Confirmation pursuant to section 1129(b) of the Bankruptcy Code requires modification,
including by modifying the treatment applicable to a Class of Claims or Interests to render such
Class of Claims or Interests Unimpaired to the extent permitted by the Bankruptcy Code and the
Bankruptcy Rules.
E. Subordinated Claims.
Except as expressly provided herein, the allowance, classification, and treatment of all
Allowed Claims and Allowed Interests and the respective distributions and treatments under the
Plan take into account and conform to the relative priority and rights of the Claims and Interests
in each Class in connection with any contractual, legal, and equitable subordination rights
relating thereto, whether arising under general principles of equitable subordination, section
510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy Code,
the Debtors and the Wind-Down Debtors reserve the right to reclassify any Allowed Claim or
Interest in accordance with any contractual, legal, or equitable subordination relating thereto.
F. Elimination of Vacant Classes; Presumed Acceptance by Non-Voting Classes.
Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or
Allowed Interest or a Claim or Interest temporarily Allowed by the Bankruptcy Court in an
amount greater than zero as of the date of the Confirmation Hearing 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.
G. Intercompany Interests.
To the extent Reinstated under the Plan, distributions on account of Intercompany
Interests are being received by Holders of such Intercompany Interests solely to use certain funds
and assets as set forth in the Plan to make certain distributions and satisfy certain obligations of
certain other Debtors and Wind-Down Debtors to the Holders of certain Allowed Claims and
otherwise for uses as are contemplated by the Plan, in each case, in accordance with the terms of
the applicable Sale Order.
H. Controversy Concerning Impairment.
If a controversy arises as to whether any Claims or Interests, or any Class of Claims or
Interests, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such
controversy on or before the Confirmation Date.
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ARTICLE IV.
MEANS FOR IMPLEMENTATION OF THE
PLAN
A. Restructuring Transactions.
On or before the Effective Date, the applicable Debtors or the Wind-Down Debtors 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
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.
B. Sources of Consideration for Plan Distributions.
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.
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C. Wind-Down Debtors.
The Debtors shall continue in existence after the Effective Date as the Wind-Down
Debtors 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 agreementTransition 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 Debtors 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.
On the Effective Date, the Wind-Down Debtor Assets shall vest in the Wind-Down
Debtors 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, other than performance under any transition services agreement for the benefit of Zoll
Medical or Trudell for the conduct and continuation of the and the Ventilation business and the
Respiratory Diagnostics businessthe Transition Services Agreements. The Wind-Down Debtors
will, in an expeditious but orderly manner, subject to the requirements of any transition services
agreementsthe 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 Debtors shall be deemed to be fully bound by the terms of the Plan
and the Confirmation Order.
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D. Liquidating Trust.
Notwithstanding anything to the contrary herein, the Plan Administrator, in his or her
discretion, may transfer all or any portion of the assets of the Wind-Down Debtors to the
Liquidating Trust, which shall be a “liquidating trust” as that term is used under section
301.7701-4(d) of the Treasury Regulations. For the avoidance of doubt, in the event of a
Permitted Transfer, the provisions set forth in Article IV.Q herein shall continue to govern all
matters associated with the prosecution, settlement, or collection upon any Retained Causes of
Action transferred to the Liquidating Trust. The Liquidating Trust shall be established for the
primary purpose of liquidating the Liquidating Trust’s assets, reconciling claims asserted against
the Wind-Down Debtors, and distributing the proceeds thereof in accordance with the Plan, with
no objective to continue or engage in the conduct of a trade or business, except to the extent
reasonably necessary to, and consistent with, the purpose of the Liquidating Trust. Upon the
transfer of the Wind-Down Debtors’ assets to the Liquidating Trust, the Wind-Down Debtors
will have no reversionary or further interest in or with respect to the assets of the Liquidating
Trust. To the extent beneficial interests in the Liquidating Trust are deemed to be “securities” as
defined in section 2(a)(1) of the Securities Act, section 101 of the Bankruptcy Code, and
applicable state securities laws, the Debtors intend that the exemption provisions of section 1145
of the Bankruptcy Code will apply to such beneficial interests. Prior to any Permitted Transfer,
the Plan Administrator may designate trustee(s) for the Liquidating Trust for the purposes of
administering the Liquidating Trust. The reasonable costs and expenses of the trustee(s) shall be
paid from the Liquidating Trust.
1. Liquidating Trust Treatment.
Subject to definitive guidance from the IRS or a court of competent jurisdiction to the
contrary, the Debtors expect to treat the Liquidating Trust as a “liquidating trust” under section
301.7701-4(d) of the Treasury Regulations and a grantor trust under section 671 of the Tax
Code, and the trustee of any Liquidating Trust will take a position on the Liquidating Trust’s tax
return accordingly. For U.S. federal income tax purposes, the transfer of assets to the
Liquidating Trust will be deemed to occur as (a) a first-step transfer of the Liquidating Trust
Assets to the Holders of the applicable Claims, and (b) a second-step transfer by such Holders to
the Liquidating Trust.
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No request for a ruling from the IRS will be sought on the classification of the
Liquidating Trust. Accordingly, there can be no assurance that the IRS would not take a contrary
position to the classification of the Liquidating Trust. If the IRS were to successfully challenge
the classification of the Liquidating Trust as a grantor trust, the federal income tax consequences
to the Liquidating Trust and the Liquidating Trust beneficiaries could vary from those discussed
in the Plan (including the potential for an entity-level tax). For example, the IRS could
characterize the Liquidating Trust as a so-called “complex trust” subject to a separate entity-level
tax on its earnings, except to the extent that such earnings are distributed during the taxable year.
As soon as possible after the transfer of the Liquidating Trust Assets to the Liquidating
Trust, the trustee(s) of the Liquidating Trust shall make a good faith valuation of the Liquidating
Trust Assets. This valuation will be made available from time to time, as relevant for tax
reporting purposes. Each of the Debtors, the trustee(s) of the Liquidating Trust, and the holders
of Claims receiving interests in the Liquidating Trust shall take consistent positions with respect
to the valuation of the Liquidating Trust Assets, and such valuations shall be utilized for all U.S.
federal income tax purposes.
Allocations of taxable income of the Liquidating Trust among the Liquidating Trust
beneficiaries shall be determined by reference to the manner in which an amount of cash equal to
such taxable income would be distributed (were such cash permitted to be distributed at such
time) if, immediately prior to such deemed distribution, the Liquidating Trust had distributed all
its assets (valued at their tax book value) to the Liquidating Trust beneficiaries, adjusted for prior
taxable income and loss and taking into account all prior and concurrent distributions from the
Liquidating Trust. Similarly, taxable loss of the Liquidating Trust shall be allocated by reference
to the manner in which an economic loss would be borne immediately after a liquidating
distribution of the remaining Liquidating Trust Assets. The tax book value of the Liquidating
Trust Assets shall equal their fair market value on the date of the transfer of the Liquidating
Trust Assets to the Liquidating Trust, adjusted in accordance with tax accounting principles
prescribed by the Tax Code, applicable Treasury Regulations, and other applicable
administrative and judicial authorities and pronouncements.
The Liquidating Trust shall in no event be dissolved later than 5 years from the creation
of such Liquidating Trust unless the Bankruptcy Court, upon motion within the 6 month period
prior to the fifth anniversary (or within the 6 month period prior to the end of an extension
period), determines that a fixed period extension (not to exceed 5 years, together with any prior
extensions, without a favorable private letter ruling from the IRS or an opinion of counsel
satisfactory to the trustee(s) of the Liquidating Trust that any further extension would not
adversely affect the status of the trust as a liquidating trust for U.S. federal income tax purposes)
is necessary to facilitate or complete the recovery and liquidation of the Liquidating Trust Assets.
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The Liquidating Trust will file annual information tax returns with the IRS as a grantor
trust pursuant to section 1.671-4(a) of the Treasury Regulations that will include information
concerning certain items relating to the holding or disposition (or deemed disposition) of the
Liquidating Trust Assets (e.g., income, gain, loss, deduction and credit). Each Liquidating Trust
beneficiary holding a beneficial interest in the Liquidating Trust will receive a copy of the
information returns and must report on its federal income tax return its share of all such items.
The information provided by the Liquidating Trust will pertain to Liquidating Trust beneficiaries
who receive their interests in the Liquidating Trust in connection with the Plan.
2. Disputed Ownership Fund Treatment.
With respect to any of the assets of the Liquidating Trust that are subject to potential
disputed claims of ownership or uncertain distributions, or to the extent “liquidating trust”
treatment is otherwise unavailable or not elected to be applied with respect to the Liquidating
Trust, the Debtors intend that such assets will be subject to disputed ownership fund treatment
under section 1.468B-9 of the Treasury Regulations, that any appropriate elections with respect
thereto shall be made, and that such treatment will also be applied to the extent possible for state
and local tax purposes. Under such treatment, a separate federal income tax return shall be filed
with the IRS for any such account. Any taxes (including with respect to interest, if any, earned
in the account) imposed on such account shall be paid out of the assets of the respective account
(and reductions shall be made to amounts disbursed from the account to account for the need to
pay such taxes).
E. Plan Administrator.
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 a board of managers and officers, 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 liabilities of the Debtors’ non-Debtor Affiliates as deemed necessary in the Plan
Administrator’s reasonable judgment. 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 Court.
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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 Debtors,
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.
F. Exculpation, Indemnification, Insurance, and Liability Limitation.
The Plan Administrator and all professionals retained by the Plan Administrator shall be
deemed exculpated and indemnified, except for fraud, willful misconduct, or gross negligence, in
all respects by each Wind-Down Debtor. The Plan Administrator may each obtain, at the
expense of the Wind-Down Debtors, commercially reasonable liability or other appropriate
insurance with respect to the indemnification obligations of the Wind-Down Debtors. The Plan
Administrator may rely upon written information previously generated by the Debtors.
G. Tax Returns.
After the Effective Date, the Plan Administrator shall complete and file all final or
otherwise required federal, state, local, and non-U.S. 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.
H. Dissolution of the Wind-Down Debtors.
Upon a certification to be Filed with the 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 the Chapter 11 Cases, each Wind-Down Debtor shall be deemed
to be dissolved without any further action by such Wind-Down Debtor, including the filing of
any documents with the secretary of state for the state in which each such Wind-Down Debtor is
formed or any other jurisdiction. The Plan Administrator, however, shall have authority to take
all necessary actions to dissolve each Wind-Down Debtor in and withdraw each Wind-Down
Debtor from applicable states.
I. Statutory Committee and Cessation of Fee and Expense Payment.
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 (ax) applications for payment of any fees or expenses
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for services rendered prior to the Effective Date that are Allowed by the Bankruptcy Court; and
(by) objections to applications for payment of fees and expenses rendered prior to the Effective
Date; and (z) fees incurred in connection with (b).
J. Cancellation of Securities and Agreements.
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
obligations set forth in Article V.E hereof) shall be cancelled solely as to the Debtors and their
Affiliates, and the Wind-Down Debtors 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 shall be terminated or cancelled on
the Effective Date.
K. Corporate Action.
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 escrows and accounts, including any reserves
(including the Administrative Claims Reserve) to be established pursuant to the terms of the
Committee Settlement set forth in this Plan; and (5) 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 Debtors, as applicable, and
any corporate action required by the Debtors or the Wind-Down Debtors, as applicable, in
connection with the Plan or corporate structure of the Debtors or Wind-Down Debtors, as
applicable, 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 Debtors, as applicable. Before, on, or after the Effective Date, the
appropriate officers of the Debtors or the Wind-Down Debtors, 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 effectuate the transactions
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contemplated under the Plan) in the name of and on behalf of the Wind-Down Debtors. The
authorizations and approvals contemplated by this Article IV.LArticle IV.K shall be effective
notwithstanding any requirements under non-bankruptcy law.
L. Effectuating Documents; Further Transactions.
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, the Confirmation Order
and the Restructuring Transactions, without the need for any approvals, authorization, or
consents except for those expressly required pursuant to the Plan or the Confirmation Order.
M. Section 1146 Exemption.
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 Debtors 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 Debtors; (2) the Restructuring
Transactions; (3) any Sale Transaction; (4) the creation, modification, consolidation, termination,
refinancing, and/or recording of any mortgage, deed of trust, or other security interest, or the
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 the 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.
N. Director and Officer Liability Insurance; Other Insurance.
Any directors and officers insurance policiesD&O Liability Insurance Policies shall be
assumed by the Debtors on behalf of the applicable Debtor and assigned to the Wind-Down
Debtors effective as of the Effective Date, pursuant to sections 105, 365 and 1123 of the
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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 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 and subject to the terms and conditions of the
D&O Liability Insurance Policies, 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
directors and officers insurance policythe D&O Liability Insurance Policies 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.
Subject to the occurrence of the Effective Date, to the fullest extent permitted by
applicable law, the obligations of the Debtors as of the Effective Date to indemnify, defend,
reimburse, or limit the liability of the current and former directors, managers, officers,
employees, attorneys, other professionals and agents of the Debtors, and such current and former
directors’, managers’, and officers’ respective Affiliates, respectively, against any Claims or
Causes of Action under any indemnification provisions or applicable law, shall survive
Confirmation, shall be assumed by the Debtors on behalf of the applicable Debtor and assigned
to the Wind-Down Debtors or the Liquidating Trust, as applicable, which shall be deemed to
have assumed the obligation, and will remain in effect after the Effective Date if such
indemnification, defense, reimbursement, or limitation is owed in connection with an event
occurring before the Effective Date.
O. Causes of Action.
Pursuant to the Sale Transactions Documentation, the Debtors assigned and transferred to
the Purchasers all of the Transferred Causes of Action pursuant to the Sale Transactions
Documentation in connection with the Sale Transactions and in accordance with the Sale Orders.
For the avoidance of doubt, the Debtors or the Plan Administrator, as applicable, will retain the
right to enforce the terms of the Sale Transactions Documentation. The Retained Causes of
Action shall initially remain with the Debtors and shall immediately vest with the Wind-Down
Debtors as of the Effective Date.
P. Section 1145 Exemption.
Pursuant to section 1145 of the Bankruptcy Code and, to the extent that section 1145 of
the Bankruptcy Code is inapplicable, section 4(a)(2) of the Securities Act, the issuance of any
Interests pursuant to the Plan is exempt from, among other things, the registration requirements
of section 5 of the Securities Act and any other applicable United States, state, or local Law
requiring registration for offer or sale of a security or registration or licensing of an issuer of,
underwriter of, or broker or dealer in, a security. As long as the exemption to registration under
section 1145 of the Bankruptcy Code is applicable, Interests issued pursuant to the Plan are not
“restricted securities” (as defined in rule 144(a)(3) under the Securities Act) and are freely
tradable and transferable by any initial recipient thereof that (x) is not an “affiliate” of the
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Wind-Down Debtors (as defined in rule 144(a)(1) under the Securities Act), (y) has not been
such an “affiliate” within 90 days of such transfer, and (z) is not an entity that is an “underwriter”
as defined in section 1145(b) of the Bankruptcy Code.
ARTICLE V.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES
A. Assumption and Rejection of Executory Contracts and Unexpired Leases.
On the Effective Date, except as otherwise provided herein 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) identified on the
Schedule of Assumed Executory Contracts and Unexpired Leasesa TSA Contract; (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) a D&O Liabilityan 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.
Entry of the 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 the
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 pursuant to the Asset Purchase Agreements. Any motions to assume Executory
Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by the
Bankruptcy Court on or after the Effective Date by a Final Order but may be withdrawn, settled,
or otherwise prosecuted by the Wind-Down Debtors. Each Executory Contract and Unexpired
Lease assumed pursuant to this Article V.A of the Plan or by any Final Order, including the
Confirmation Order, which has not been assigned to a Purchaser pursuant to the applicable Asset
Purchase Agreement or the applicable Sale Order, shall revest in and be fully enforceable by the
Wind-Down Debtors in accordance with its terms, except as such terms are modified by the
provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its
assumption under applicable federal Law.
For the avoidance of doubt, this Article V relates to Executory Contracts or Unexpired
Leases other than such agreements assumed, assumed and assigned, or rejected in accordance
with the terms of any Sale Order.
B. TSA Contracts
Notwithstanding anything to the contrary in the Plan or the Sale Transactions
Documentation, the Debtors, the Wind-Down Debtors, and the Plan Administrator, as applicable,
reserve the right to alter, amend, modify, or supplement the Schedule of Assumed Executory
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Contracts and Unexpired Leases, the Schedule of Rejected Executory Contracts and Unexpired
Leases, and the Schedule of Retained Causes of Acton identified in this Article V of the Plan and
in the Plan Supplement at any time through and includingshall have up to 90 days afterfrom the
Effective Date. The Debtors or the Wind-Down Debtors (“90-Day Deadline”) to determine
whether to assume, assume and assign, or reject any TSA Contract; provided, however, that the
Debtors, the Wind-Down Debtors, and the Plan Administrator, as applicable, shall provide notice
of any amendments to the Schedule of Assumed Executory Contracts and Unexpired Leases or
the Schedule of Rejected Executory Contracts and Unexpired Leases to the parties to the
Executory Contracts or Unexpired Leases affected thereby. For the avoidance of doubt, this
Article V relates to Executory Contracts or Unexpired Leases other than such agreements
assumed, assumed and assigned, or rejected in accordance with the terms of any Sale Order.have
up to 30 days from the earlier of the Effective Date and the closing of the sale to Trudell (the
“30-Day Deadline”) to add a previously unlisted Executory Contract or Unexpired Lease (each, a
“Non-TSA Contract”) to the TSA Contract Schedule. All Non-TSA Contracts that are not
added to the TSA Contact Schedule on or before the 30-Day Deadline shall be deemed rejected
without further order of the Bankruptcy Court as of the date upon which the last day of the
30-Day Deadline falls.
To the extent the Debtors determine to assume or assume and assign any TSA Contract,
the Debtors shall serve such TSA Contract Counterparties with a Cure Notice prior to the
expiration of the 90-Day Deadline. To the extent the Debtors do not serve a Cure Notice on a
TSA Contract Counterparty prior to the expiration of the 90-Day Deadline, the Debtors, the TSA
Contract shall be deemed rejected without further order of the Bankruptcy Court as of the date
upon which the last day of the 90-Day Deadline falls.
Any objection by a TSA Contract Counterparty to a proposed assumption or assumption
and assignment or related Cure Claim (the “Contract Objection”) must be Filed, served, and
actually received by the Debtors within 14 days of service of the Cure Notice (“Cure Objection
Deadline”). If a Contract Objection is timely Filed and served, any Cure Claim associated with
such TSA Contract shall not be required to be paid until the entry of a Final Order resolving the
dispute and approving the assumption or assumption and assignment, as applicable. If the
Bankruptcy Court determines that the Allowed Cure Claim with respect to any TSA Contract is
greater than the amount set forth in the applicable Cure Notice, the Debtors, Wind-Down
Debtors, or Plan Administrator, as applicable, may reject such TSA Contract.
Any TSA Contract Counterparty that fails to timely object to the Cure Notice will be
deemed to have assented to such assumption or assumption and assignment. Except as otherwise
provided by a Final Order of the Bankruptcy Court (including, for the avoidance of doubt, any
Executory Contract or Unexpired Lease assumed or assumed and assigned in connection with
any Sale Transactions pursuant to a Sale Order), any monetary defaults under an assumed TSA
Contract, as reflected on the Cure Notice, shall be satisfied, pursuant to section 365(b)(1) of the
Bankruptcy Code, by payment of the Cure Claim in Cash within three (3) days following the
expiration of the Cure Objection Deadline if no timely objection is made, or such other terms as
the parties to such TSA Contract may otherwise agree.
Subject to satisfaction in full of any applicable Cure Claim, the assumption of any TSA
Contract pursuant to the Plan shall result in the full release and satisfaction of any Claims or
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defaults, whether monetary or nonmonetary (solely to the extent agreed between the Debtors and
the counterparty to an applicable Executory Contract or Unexpired Lease), including defaults of
provisions restricting the change in control or ownership interest composition or other
bankruptcy-related defaults, arising under any assumed or assumed and assigned TSA Contract
at any time before the date that the Debtors assume or assume and assign such TSA Contract.
Following satisfaction in full of any applicable Cure Claims, any Proofs of Claim Filed with
respect to a TSA Contract that has been assumed or assumed and assigned shall be deemed
disallowed and expunged, without further notice to or action, order, or approval of the
Bankruptcy Court. For the avoidance of doubt, this Article V.B does not apply to any Executory
Contract or Unexpired Lease that was assumed or assumed and assigned in connection with the
Sale Transactions in accordance with the Sale Orders.
Notwithstanding anything to the contrary set forth herein, the Debtors, the Wind-Down
Debtors, and the Plan Administrator, as applicable, shall not solicit an agreement from any TSA
Contract Counterparty to a modification of the financial terms of such TSA Contract that is less
favorable than the financial terms under such TSA Contract as such terms existed on the Petition
Date; provided, however, that the foregoing shall not preclude adjustments for any volume or
service-related metrics.
The Debtors, the Wind-Down Debtors, or the Plan Administrator, as applicable, shall
remit payments to the TSA Contract Counterparties as soon as practicable, but in no event later
than 15 days following the delivery by a TSA Contract Counterparty of an invoice covering the
provision of goods or services by such TSA Contract Counterparty; provided, however, that to
the extent the terms of a TSA Contract require payment within fewer than 15 days, the Debtors,
the Wind-Down Debtors, or the Plan Administrator, as applicable, shall remit payments to such
TSA Contract Counterparty within such shorter timeframe. For the avoidance of doubt, all
amounts to be paid pursuant to this Article V.B shall be subject in all respects to the Wind-Down
Budget and shall not be payable from any proceeds of the Debtors’ Wind-Down Debtor Assets or
otherwise absent the written consent of the Required DIP Lenders.
C. B. Claims Based on Rejection of Executory Contracts or Unexpired Leases.
Unless otherwise provided by a Final Order of the Bankruptcy Court, all Proofs of Claim
with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases,
pursuant to the Plan or the Confirmation Order, if any, must be Filed with the Bankruptcy Court
within 30 days after the later of (1) the date of entry of an order of the Bankruptcy Court
(including the Confirmation Order) approving such rejection, (2) the effective date of such
rejection, or (3) the Effective Date (the “Rejection Damages Claims Bar Date”). Any Claims
arising from the rejection of an Executory Contract or Unexpired Lease not Filed with the
Bankruptcy Court within such time will be automatically disallowed, forever barred from
assertion, and shall not be enforceable against the Debtors, the Wind-Down Debtors, the
Estates, the Liquidating Trust (if any), the Purchasers, or their respective property without
the need for any objection by the Wind-Down Debtors or further notice to, or action,
order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out
of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully
satisfied and released, notwithstanding anything in a Proof of Claim to the contrary, unless
otherwise ordered by the Bankruptcy Court. All Allowed Claims arising from the rejection
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of the Debtors’ Executory Contracts or Unexpired Leases shall be classified as General
Unsecured Claims and shall be treated in accordance with Article III of the Plan or such other
treatment as agreed to by the Wind-Down Debtors and the Holder of such Claim.
C. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases.
Except as otherwise provided by a Final Order of the Bankruptcy Court (including, for
the avoidance of doubt, any Executory Contract or Unexpired Lease assumed or assumed and
assigned in connection with any Sale Transactions pursuant to a Sale Order), any monetary
defaults under an assumed Executory Contract or Unexpired Lease, as reflected on the Cure
Notice, shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of
the Cure Claim in Cash on the Effective Date, subject to the limitations described below, or on
such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise
agree. In the event of a dispute regarding (1) the amount of any payments to cure such a default,
(2) the ability of the Wind-Down Debtors or any assignee, as applicable, to provide “adequate
assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code)
under the Executory Contract or Unexpired Lease to be assumed, or (3) any other matter
pertaining to assumption, the cure payments required by section 365(b)(1) of the Bankruptcy
Code shall be made following the entry of a Final Order resolving the dispute and approving the
assumption.
At least 14 days before the Confirmation Hearing, the Debtors shall distribute, or cause to
be distributed, Cure Notices of proposed assumption or assumption and assignment and
proposed amounts of Cure Claims to the applicable third parties. Any objection by a
counterparty to an Executory Contract or Unexpired Lease to a proposed assumption or
assumption and assignment or related cure amount must be Filed, served, and actually received
by the Debtors at least seven days before the Confirmation Hearing. Any counterparty to an
Executory Contract or Unexpired Lease that fails to timely object to the proposed assumption or
assumption and assignment or cure amount will be deemed to have assented to such assumption
or assumption and assignment and cure amount. Notwithstanding anything herein to the
contrary, in the event that any Executory Contract or Unexpired Lease is removed from the
Schedule of Rejected Executory Contracts and Unexpired Leases after such 14-day deadline, a
Cure Notice of proposed assumption or assumption and assignment and proposed amounts of
Cure Claims with respect to such Executory Contract or Unexpired Lease will be sent promptly
to the counterparty thereof and a noticed hearing set to consider whether such Executory
Contract or Unexpired Lease can be assumed or assumed and assigned; provided that such
hearing shall take place at the next scheduled omnibus hearing, which shall be set 14 days after
the Confirmation Hearing, subject to Bankruptcy Court availability, unless the Debtors or
Wind-Down Debtors, as applicable, and objecting party agree to a different time.
If the Bankruptcy Court determines that the Allowed Cure Claim with respect to any
Executory Contract or Unexpired Lease is greater than the amount set forth in the applicable
Cure Notice, the Debtors or Wind-Down Debtors, as applicable, may add such Executory
Contract or Unexpired Lease to the Schedule of Rejected Executory Contracts and Unexpired
Leases, in which case such Executory Contract or Unexpired Lease will be deemed rejected as
the Effective Date.
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Subject to satisfaction in full of any applicable Cure Claim, the assumption of any
Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall result in the full
release and satisfaction of any Claims or defaults, whether monetary or nonmonetary (solely to
the extent agreed between the Debtors and the counterparty to an applicable Executory Contract
or Unexpired Lease), including defaults of provisions restricting the change in control or
ownership interest composition or other bankruptcy-related defaults, arising under any assumed
or assumed and assigned Executory Contract or Unexpired Lease at any time before the date that
the Debtors assume or assume and assign such Executory Contract or Unexpired Lease.
Following satisfaction in full of any applicable Cure Claims, any Proofs of Claim Filed with
respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and
assigned shall be deemed disallowed and expunged, without further notice to or action, order, or
approval of the Bankruptcy Court. For the avoidance of doubt, this Article V.C does not apply to
any Executory Contract or Unexpired Lease that was assumed or assumed and assigned in
connection with the Sale Transactions in accordance with the Sale Orders.
D. Insurance Policies.
Notwithstanding anything to the contrary in the Definitive Documents, any other
document related to any of the foregoing, or any other order of the Bankruptcy Court (including,
without limitation, any other provision that purports to be preemptory or supervening, grants an
injunction, discharge or release, confers Bankruptcy Court jurisdiction):
Each(a) each of the Debtors’ insurance policies and any agreements, documents, or
instruments relating thereto, areInsurance Policies and shall be treated as Executory Contracts
under the Plan. Unless otherwise provided in the Plansuch that, on the Effective Date, (a) the
Debtors shall be deemed to have assumed all insurance policies and any agreements, documents,
and instruments relating to coverage of all insured Claims and (b) such insurance policies and
any agreements, documents, or instruments relating theretoand assigned all Insurance Policies in
their entities to the Wind-Down Debtors pursuant to sections 105, 365 and 1123 of the
Bankruptcy Code such that the Insurance Policies shall revest in the Wind-Down Debtors. For
the avoidance of doubt, this Article V.D does not apply to insurance policies or any agreements,
documents, or instruments relating thereto that were transferred to the Purchasers in the Sale
Transactions.;
(b) on and after the Effective Date, the Wind-Down Debtors shall become and remain
jointly and severally liable in full for all of their and the Debtors’ obligations under the Insurance
Policies regardless of whether such obligations arise before or after the Effective Date and
without the requirement or need for any Insurer to file a Proof of Claim or an Administrative
Claim, Cure Claim object to any Cure Notice, or provide any notice of recoupment;
(c) nothing shall alter or modify the terms and conditions of the Insurance Policies,
and any rights and obligations thereunder shall be determined in accordance with the terms
thereof and applicable non-bankruptcy law;
(d) except as expressly set forth in subparagraph (a) hereof, nothing shall permit or
otherwise effectuate a sale, assignment or other transfer of the Insurance Policies and/or any
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rights, benefits, claims, proceeds, rights to payment, or recoveries under and/or relating to the
Insurance Policies without the prior express written consent of the Insurers;
(e) the automatic stay of Bankruptcy Code section 362(a) and the injunctions set forth
in Article VIII.E hereof, if and to the extent applicable, shall be deemed lifted without further
order of the Bankruptcy Court, solely to permit: (a) claimants with valid direct action claims
against an Insurer under applicable non-bankruptcy law to proceed with their claims; (b) Insurers
to administer, handle, defend, settle, and/or pay, in the ordinary course of business and without
further order of this Bankruptcy Court: (i) claims where a claimant asserts a direct claim against
any Insurer under applicable non-bankruptcy law, (ii) claims where an order has been entered by
this Bankruptcy Court granting a claimant relief from the automatic stay or the injunction set
forth in Article VIII.E hereof to proceed with its claim; and (iii) all costs in relation to each of the
foregoing; and (c) the Insurers to cancel any Insurance Policies, and take other actions relating
thereto (including effectuating a setoff), in each case in accordance with the terms of the
Insurance Policies and/or applicable non-bankruptcy law; and
(f) nothing in Article VIII.E of the Plan or any corresponding paragraph of the
Confirmation Order requires, precludes and/or prohibits Insurers to or from administering,
handling, defending, settling and/or paying claims covered by any Insurance Policies in
accordance with and subject to the terms and conditions of such Insurance Policies and/or
applicable non-bankruptcy law.
For the avoidance of doubt, this Article V.D does not apply to Insurance Policies or any
agreements, documents, or instruments relating thereto that were transferred to the Purchasers in
the Sale Transactions.
E. Indemnification Obligations.
Subject to the occurrence of the Effective Date, to the fullest extent permitted by
applicable law, the obligations of the Debtors as of the Effective Date to indemnify, defend,
reimburse, or limit the liability of the current and former directors, managers, officers,
employees, attorneys, other professionals and agents of the Debtors, and such current and former
directors’, managers’, and officers’ respective Affiliates, respectively, against any Claims or
Causes of Action under any indemnification provisions or applicable law, shall survive
Confirmation, shall be assumed by the Debtors on behalf of the applicable Debtor and assigned
to the Wind-Down Debtors or their successors and assigns, which shall be deemed to have
assumed the obligation, and will remain in effect after the Effective Date if such indemnification,
defense, reimbursement, or limitation is owed in connection with an event occurring before the
Effective Date.
F. Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired
Leases.
Rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or
otherwise shall not constitute a termination of preexisting obligations owed to the Debtors or the
Wind-Down Debtors, as applicable, under such Executory Contracts or Unexpired Leases. In
particular, notwithstanding any non-bankruptcy law to the contrary, the Wind-Down Debtors
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expressly reserve and do not waive any right to receive, or any continuing obligation of a
counterparty to provide, warranties or continued maintenance obligations with respect to goods
previously purchased by the Debtors pursuant to rejected Executory Contracts or Unexpired
Leases.
G. Modifications, Amendments, Supplements, Restatements, or Other Agreements.
Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that
is assumed shall include all modifications, amendments, supplements, restatements, or other
agreements that in any manner affect such Executory Contract or Unexpired Lease, and
Executory Contracts and Unexpired Leases related thereto, if any, including easements, licenses,
permits, rights, privileges, immunities, options, rights of first refusal and any other interests,
unless any of the foregoing agreements has been previously rejected or repudiated or is rejected
or repudiated under the Plan.
Modifications, amendments, supplements, and restatements to prepetition Executory
Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11
Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired
Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.
H. Reservation of Rights.
Neither the exclusion nor inclusion of any Executory Contract or Unexpired Lease on the
Schedule of Assumed Executory Contracts and Unexpired Leases, the Schedule of Rejected
Executory Contracts and Unexpired Leases, or any other exhibit, schedule or annex, nor anything
contained in the Plan or Plan Supplement, shall constitute an admission by the Debtors that any
such contract or lease is in fact an Executory Contract or Unexpired Lease or that the
Wind-Down Debtors have any liability thereunder. If there is a dispute regarding whether a
contract or lease is or was executory or unexpired at the time of assumption or rejection, the
Debtors or the Wind-Down Debtors, as applicable, shall have 30 days following entry of a Final
Order resolving such dispute to alter their treatment of such contract or lease under the Plan.
I. Nonoccurrence of Effective Date.
In the event that the Effective Date does not occur, the Bankruptcy Court shall retain
jurisdiction with respect to any request to extend the deadline for assuming or rejecting
Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code.
ARTICLE VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Timing and Calculation of Amounts to Be Distributed.
Unless otherwise provided in the Plan or the Confirmation Order, on the Effective Date
(or if a Claim is not an Allowed Claim or on the Effective Date, on the date that such Claim
becomes an Allowed Claim, or as soon as reasonably practicable thereafter), or as soon as is
reasonably practicable thereafter, each Holder of an Allowed Claim (as applicable) shall receive
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the full amount of the distributions that the Plan provides for Allowed Claims (as applicable) in
the applicable Class.
In the event that any payment or act under the Plan is required to be made or performed
on a date that is not a Business Day, then the making of such payment or the performance of
such act may be completed on the next succeeding Business Day but shall be deemed to have
been completed as of the required date. If and to the extent that there are Disputed Claims,
distributions on account of any such Disputed Claims shall be made pursuant to the provisions
set forth in Article VII hereof. Except as otherwise provided in the Plan, Holders of Claims shall
not be entitled to interest, dividends, or accruals on the distributions provided for in the Plan,
regardless of whether such distributions are delivered on or at any time after the Effective Date.
B. Disbursing Agent.
All distributions under the Plan shall be made by the Disbursing Agent on the Effective
Date or at such other time as provided for herein. The Debtors, the Wind-Down Debtors, and the
Disbursing Agent, as applicable, shall not be required to give any bond or surety or other security
for the performance of its duties unless otherwise ordered by the Bankruptcy Court.
Additionally, in the event that the Disbursing Agent is so otherwise ordered, all costs and
expenses of procuring any such bond or surety shall be borne by the Wind-Down Debtors.
C. Rights and Powers of the Disbursing Agent.
1. Powers of the Disbursing Agent.
The Disbursing Agent shall be empowered to: (a) effect all actions and execute all
agreements, instruments, and other documents necessary to perform its duties under the Plan and
the Confirmation Order; (b) make all distributions contemplated hereby; (c) employ
professionals to represent it with respect to its responsibilities (in accordance with the
Wind-Down Budget); and (d) exercise such other powers as may be vested in the Disbursing
Agent by order of the Bankruptcy Court, pursuant to the Plan or the Confirmation Order, or as
deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof;
provided, however, that the Debtors or the Wind-Down Debtors, as applicable, shall maintain the
Claims Register.
2. Expenses Incurred on or After the Effective Date.
Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees
and expenses incurred by the Disbursing Agent on or after the Effective Date (including taxes)
and any reasonable compensation and out of pocket expense reimbursement claims (including
reasonable attorney fees and expenses) made by the Disbursing Agent shall be paid in Cash by
the Wind-Down Debtors in accordance with the Wind-Down Budget.
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D. Delivery of Distributions and Undeliverable or Unclaimed Distributions.
1. Record Date for Distributions.
On the Distribution Record Date, (i) the Claims Register and (ii) the loan registers
maintained by each of the Agents, respectively, shall each be deemed closed and any party
responsible for making distributions shall instead be authorized and entitled to recognize only
those record Holders listed on the Claims Register as of the close of business on the Distribution
Record Date. If a Claim is transferred 20 or fewer days before the Distribution Record Date,
distributions shall be made to the transferee only to the extent practical and, in any event, only if
the relevant transfer form contains an unconditional and explicit certification and waiver of any
objection to the transfer by the transferor.
2. Delivery of Distributions.
Except as otherwise provided herein, the Disbursing Agent shall make distributions to
Holders of Allowed Claims as of the Distribution Record Date at the address for each such
Holder as indicated on the Debtors’ records as of the date of any such distribution; provided that
the manner of such distributions shall be determined at the discretion of the Disbursing Agent;
provided, further, that the address for each Holder of an Allowed Claim shall be deemed to be
the address set forth in any Proof of Claim Filed by that Holder. Distributions to Holders of DIP
Claims, Allowed First Lien Claims, and Allowed Second Lien Claims shall be consistent with
the DIP Order and the Prepetition Loan Documents.
3. Minimum Distributions.
Notwithstanding any other provision of the Plan, the Disbursing Agent will not be
required to make distributions of Cash less than $100250 in value, and each such Claim to which
this limitation applies shall be forever barred pursuant to Article VII from asserting that Claim
against the Debtors or their respective property.
4. Undeliverable Distributions and Unclaimed Property.
In the event that any distribution to any Holder of an Allowed Claim (as applicable) is
returned as undeliverable, no distribution to such Holder shall be made unless and until the
Disbursing Agent has determined the then-current address of such Holder, at which time such
distribution shall be made to such Holder without interest; provided that such distributions shall
be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of
one year from the Effective Date. After such date, all unclaimed property or interests in property
shall revert to the Wind-Down Debtors automatically and without need for a further order by the
Bankruptcy Court (notwithstanding any applicable federal, provincial, or state escheat,
abandoned, or unclaimed property laws to the contrary), and the Claim or Interest of any Holder
related to such property or interest in property shall be discharged and forever barred. The
Wind-Down Debtors, the Disbursing Agent, and the Plan Administrator shall have no obligation
to attempt to locate a Holder of an Allowed Claim other than by reviewing the Debtors’ books
and records and the filings on the docket of the Chapter 11 Cases.
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E. Manner of Payment.
Any distributions of Cash to the Holders of the applicable Allowed Claims under the Plan
shall be made by the Disbursing Agent on behalf of the applicable Debtor or Wind-Down
Debtor. At the option of the Disbursing Agent, any Cash payment to be made hereunder may be
made by check or wire transfer or as otherwise set forth in the Plan Supplement.
F. Compliance with Tax Requirements.
In connection with the Plan, to the extent applicable, the Debtors and the Wind-Down
Debtors, as applicable withholding or reporting agent, shall comply with all tax withholding and
reporting requirements imposed on them by any Governmental Unit, and all distributions made
pursuant to the Plan shall be subject to such withholding and reporting requirements.
Notwithstanding any provision in the Plan to the contrary, any applicable withholding or
reporting agent shall be authorized to take all actions necessary or appropriate to comply with
such withholding and reporting requirements, including liquidating a portion of the distribution
to be made under the Plan to generate sufficient funds to pay applicable withholding taxes,
withholding distributions pending receipt of information necessary to facilitate such
distributions, or establishing any other mechanisms they believe are reasonable and appropriate.
The Debtors and the Wind-Down Debtors, as applicable, reserve the right to allocate all
distributions made under the Plan in compliance with applicable wage garnishments, alimony,
child support, and other spousal awards, Liens, and encumbrances.
G. Allocations.
Distributions in respect of Allowed Claims shall be allocated first to the principal amount
of such Claims (as determined for federal income tax purposes) and then, to the extent the
consideration exceeds the principal amount of the Claims, to the remainder of the Claims,
including any Claims for accrued but unpaid interest.
H. No Postpetition or Default Interest on Claims.
Unless otherwise specifically provided for in the Plan, the Confirmation Order or the DIP
Order, or required by applicable bankruptcy and non-bankruptcy law, (a) postpetition and/or
default interest shall not accrue or be paid on any Claims, and (b) no Holder of a Claim shall be
entitled to (i) interest accruing on or after the Petition Date on any such Claim or (ii) interest at
the contract default rate, as applicable. Additionally, and without limiting the foregoing, interest
shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective
Date to the date a final distribution is made on account of such Disputed Claims, if and when
such Disputed Claim becomes an Allowed Claim.
I. Foreign Currency Exchange Rate.
Except as otherwise provided in a Bankruptcy Court order, as of the Effective Date, any
Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to
the equivalent U.S. dollar value using the exchange rate for the applicable currency as published
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in The Wall Street Journal (National Edition) as of 5:00 p.m., prevailing Eastern Time, on the
Petition Date.
J. Setoffs and Recoupment.
Except as expressly provided in the Plan, each Wind-Down Debtor may, pursuant to
section 553 of the Bankruptcy Code, set off and/or recoup against any Plan distributions to be
made on account of any Allowed Claim, any and all claims, rights, and Causes of Action that
such Wind-Down Debtor may hold against the Holder of such Allowed Claim to the extent such
setoff or recoupment (other than for the DIP Claims held by the DIP Lenders) is either (i) agreed
in amount among the relevant Wind-Down Debtor(s) and Holder of the Allowed Claim or
(ii) otherwise adjudicated by the Bankruptcy Court or another court of competent jurisdiction;
provided that neither the failure to effectuate a setoff or recoupment nor the allowance of any
Claim hereunder shall constitute a waiver or release by a Wind-Down Debtor or its successor of
any and all claims, rights, and Causes of Action that such Wind-Down Debtor or its successor
may possess against the applicable Holder.
K. No Double Payment of Claims.
To the extent that a Claim is Allowed against more than one Debtor’s Estate, there shall
be only a single recovery on account of that Allowed Claim, but the Holder of an Allowed Claim
against more than one Debtor may recover distributions from all co-obligor Debtors’ Estates
until the Holder has received payment in full on the Allowed Claims. No Holder of an Allowed
Claim shall be entitled to receive more than payment in full of its Allowed Claim, and each
Claim shall be administered and treated in the manner provided by the Plan only until payment in
full on that Allowed Claim.
L. Satisfaction of Claims.
Notwithstanding anything to the contrary herein, in the Bankruptcy Code, the Bankruptcy
Rules, or the Local Rules, the Debtors, the Wind-Down Debtors, the Plan Administrator, or the
Claims and Noticing Agent, as applicable, shall adjust the claims register to reflect the
adjustment or expungement, as applicable, of any and all Claims that are duplicative or have
been satisfied or amended and superseded without further order of the Bankruptcy Court prior to
making distributions, if any, to General Unsecured Creditors entitled to payment in Article
III.B.6. herein.
M. L. Claims Paid or Payable by Third Parties.
1. Claims Paid by Third Parties.
The Debtors or the Wind-Down Debtors, as applicable, shall reduce in full a Claim, and
such Claim shall be disallowed without a Claims objection having to be Filed and without any
action, order, or approval of the Bankruptcy Court, to the extent that the Holder of such Claim
receives payment in full on account of such Claim from a party that is not a Debtor or a
Wind-Down Debtor, provided that the Debtors or the Wind-Down Debtors, as applicable, shall
provide notice of such reduction to the Holder of such Claim. Subject to the last sentence of this
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paragraph, to the extent a Holder of a Claim receives a distribution on account of such Claim and
receives payment from a party that is not a Debtor or a Wind-Down Debtor on account of such
Claim, such Holder shall, within 14 days of receipt thereof, repay or return the distribution to the
applicable Debtor or the Wind-Down Debtor, to the extent the Holder’s total recovery on
account of such Claim from the third party and under the Plan exceeds the amount of such Claim
as of the date of any such distribution under the Plan. The failure of such Holder to timely repay
or return such distribution shall result in the Holder owing the applicable Debtor or a
Wind-Down Debtor annualized interest at the Federal Judgment Rate on such amount owed for
each Business Day after the 14-day grace period specified above until the amount is repaid.
2. Claims Payable by Third Parties.
No distributions under the Plan shall be made on account of an Allowed Claim that is
payable pursuant to one of the Debtors’ insurance policiesInsurance Policies until the Holder of
such Allowed Claim has exhausted all remedies with respect to such insurance policyInsurance
Policy. To the extent that one or more of the Debtors’ insurersInsurers agrees to satisfypay in
full or in part a Claim, then immediately upon such insurers’ satisfactionInsurers’ agreement, the
applicable portion of such Claim may be expunged without a Claim objection having to be Filed
and without any further notice to or action, order, or approval of the Bankruptcy Court; provided
that notice of such satisfaction is served by the Debtors or the Wind-Down Debtors, as
applicable, on the Holder of such Claim.
3. Applicability of Insurance Policies.
Except as otherwise provided in the Plan, distributions to Holders of Allowed Claims
covered by insurance policiesInsurance Policies shall be in accordance with the provisions of any
applicable insurance policyInsurance Policy. Nothing contained in the Plan shall constitute or be
deemed a release, settlement, satisfaction, compromise, or waiver of any Cause of Action that
the Debtors or any Entity may hold against any other Entity, including insurersInsurers under any
policies of insuranceInsurance Policies, nor shall anything contained herein constitute or be
deemed a waiver by such insurersInsurers of any rights or defenses, including coverage defenses,
held by such insurersInsurers.
ARTICLE VII.
PROCEDURES FOR RESOLVING
CONTINGENT,
UNLIQUIDATED, AND DISPUTED CLAIMS
A. Allowance of Claims and Interests.
After the Effective Date, the Wind-Down Debtors or the Plan Administrator, as
applicable, shall have and retain any and all rights and defenses such Debtor had with respect to
any Claim or Interest immediately before the Effective Date. The Debtors may affirmatively
determine to deem Unimpaired Claims Allowed to the same extent such Claims would be
allowed under applicable non-bankruptcy law.
Any Claim that has been or is hereafter listed in the Schedules as contingent,
unliquidated, or Disputed, and for which no Proof of Claim is or has been timely Filed, or that is
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not or has not been Allowed by the Plan or a Final Order, is not considered Allowed and shall be
expunged without further action by the Debtors or the Wind-Down Debtors, as applicable, and
without further notice to any party or action, approval, or order of the Bankruptcy Court.
B. Claims and Interests Administration Responsibilities.
Except as otherwise specifically provided in the Plan or the Confirmation Order, after the
Effective Date, the Plan Administrator shall have the primary authority with regard to all Claims
and Interests that are not Allowed: (i) to File, withdraw, or litigate to judgment objections to
Claims and Interests; (ii) to settle or compromise any Disputed Claim or Disputed Interest
without any further notice to or action, order, or approval of the Bankruptcy Court; and (iii) to
administer and adjust the Claims Register to reflect any such settlements or compromises
without any further notice to or action, order, or approval by the Bankruptcy Court. For the
avoidance of doubt, except as otherwise provided herein, from and after the Effective Date, the
Wind-Down Debtors shall have and retain any and all rights and defenses such Debtor had
immediately prior to the Effective Date with respect to any Disputed Claim or Interest, including
the Retained Causes of Action pursuant to Article IV.P herein.
The Debtors up to the Effective Date, and the Wind-Down Debtors on and after the
Effective Date, shall be responsible and obligated to maintain the Claims Register, and to
administer and adjust the Claims Register in regard to allowance of Claims. The Debtors or the
Wind-Down Debtors, as applicable, may maintain the retention of the Claims and Noticing
Agent and develop a budget for compensation of the Claims and Noticing Agent.
C. Estimation of Claims and Interests.
Before, on, or after the Effective Date, the Debtors, the Wind-Down Debtors, or the Plan
Administrator, as applicable, may (but is not required to) at any time request that the Bankruptcy
Court estimate the amount of any Claim pursuant to applicable Law, including, without
limitation, pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of
whether any party in interest previously has objected to such Disputed Claim or Interest or
whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall
retain jurisdiction under sections 157 and 1334 of the Judicial Code to estimate any such
Disputed Claim or Interest, including during the litigation of any objection to any Disputed
Claim or Interest or during the pendency of any appeal relating to such objection.
Notwithstanding any provision to the contrary in the Plan, a Disputed Claim that has been
expunged from the Claims Register, but that either is subject to appeal or has not been the
subject of a Final Order, shall be deemed to be estimated at zero dollars, unless otherwise
ordered by the Bankruptcy Court. In the event that the Bankruptcy Court estimates any
contingent, unliquidated or Disputed Claim or Interest, that estimated amount shall constitute a
maximum limitation on such Claim or Interest for all purposes under the Plan (including for
purposes of distributions and discharge) and may be used as evidence in any supplemental
proceedings, and the Wind-Down Debtors may elect to pursue any supplemental proceedings to
object to the allowance of, or any ultimate distribution on, such Claim or Interest.
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D. Adjustment to Claims or Interests Without Objection.
Any Claim or Interest that has been paid or satisfied may be adjusted or expunged
(including on the Claims Register, to the extent applicable) by the Wind-Down Debtors after
notice to the Holder of such Claim (or such Holder’s known counsel), but without any further
notice to or action, order or approval of the Bankruptcy Court; provided, that the Wind-Down
Debtors shall file a notice of satisfaction or other pleading evidencing such satisfactions and
serve the same on the Holders of such Claims, or seek an order of the Bankruptcy Court with
respect to the same, upon notice to the Holders of such Claim or Interest.
E. Time to File Objections to Claims
Any objections to Claims shall be Filed on or before the later of (i) 180 days after the
Effective Date and (ii) such other period of limitation as may be specifically fixed by a Final
Order of the Bankruptcy Court, subject to a notice and objection period, for objecting to such
Claims (the “Claims Objection Deadline”). For the avoidance of doubt, the period of limitation
set forth in this Article VII.E shall not apply to Administrative Claims.
F. Disallowance of Claims.
Any Claims or Interests held by Entities from which property is recoverable under section
542, 543, 550, or 553 of the Bankruptcy Code, or that is a transferee of a transfer avoidable
under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code, shall be
deemed disallowed pursuant to section 502(d) of the Bankruptcy Code, and Holders of such
Claims or Interests may not receive any distributions on account of such Claims until such time
as such Causes of Action against that Entity have been settled or a Bankruptcy Court order with
respect thereto has been entered and all sums due, if any, to the Debtors by that Entity have been
turned over or paid to the Wind-Down Debtors. All Proofs of Claim Filed on account of an
indemnification obligation to a director, manager, officer, or employee shall automatically be
deemed satisfied and expunged from the Claims Register as of the Effective Date to the extent
such Indemnification Obligation is honored or reaffirmed pursuant to the Plan, without any
further notice to or action, order, or approval of the Bankruptcy Court.
Except as provided herein or otherwise agreed, any and all Proofs of Claim Filed
after the Claims Bar Date shall be deemed disallowed and expunged as of the Effective
Date without any further notice to or action, order, or approval of the Bankruptcy Court,
and Holders of such Claims may not receive any distributions on account of such Claims,
unless such late Claim has been deemed timely Filed by a Final Order of the Bankruptcy
Court.
G. Amendments to Proofs of Claims or Interests.
On or after the applicable bar date, a Proof of Claim or Interest may not be Filed or
amended without the prior written authorization of the Bankruptcy Court or the applicable
Debtor or Wind-Down Debtor, as applicable. Absent such authorization, any new or amended
Claim or Interest Filed shall be deemed disallowed in full and expunged without any further
action.
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H. No Distributions Pending Allowance.
Notwithstanding any other provision of the Plan or the Confirmation Order, if any portion
of a Claim or Interest is a Disputed Claim or Interest, as applicable, no payment or distribution
provided under the Plan shall be made on account of such Claim or Interest unless and until such
Disputed Claim or Interest becomes an Allowed Claim or Interest.
I. Distributions After Allowance.
To the extent that a Disputed Claim or Interest ultimately becomes an Allowed Claim or
Allowed Interest, distributions, if any, shall be made to the Holder of such Allowed Claim or
Allowed Interest (as applicable) in accordance with the provisions of the Plan and the
Confirmation Order. As soon as reasonably practicable after the date that the order or judgment
of the Bankruptcy Court allowing any Disputed Claim or Disputed Interest becomes a Final
Order, the Disbursing Agent shall provide to the Holder of such Claim or Interest the
distribution, if any, to which such Holder is entitled under the Plan as of the Effective Date, less
any previous distribution, if any, that was made on account of the undisputed portion of such
Claim or Interest, without any interest, dividends, or accruals to be paid on account of such
Claim or Interest unless required under applicable bankruptcy Law or as otherwise provided in
Article III.B of the Plan.
J. Single Satisfaction of Claims.
Holders of Allowed Claims may assert such Claims against the applicable Debtor or
Debtors obligated with respect to such Claims, and such Claims shall be entitled to share in the
recovery provided for the applicable Class of Claims against the applicable Debtor(s) based upon
the full Allowed amount of such Claims. Notwithstanding the foregoing, in no case shall the
aggregate value of all property received or retained under the Plan on account of any Allowed
Claim exceed 100 percent of the underlying Allowed Claim plus applicable interest, if any.
K. Claims Not Receiving a Distribution.
Notwithstanding anything in the Plan to the contrary, the Debtors will not undertake any
claims resolution process, steps related thereto or any action with respect to claims that are
classified in a Class for which there will be no distribution.
ARTICLE VIII.
SETTLEMENT, RELEASE, INJUNCTION, AND
RELATED PROVISIONS
A. Release of Liens.
Except as otherwise provided in the Plan, the Plan Supplement, Confirmation
Order or any contract, instrument, release, or other agreement or document created
pursuant to the Plan or the Confirmation Order, immediately following the making of all
distributions to be made to an applicable Holder pursuant to the Plan, and, in the case of a
Secured Claim, in satisfaction in full of the portion of the Secured Claim that is Allowed as
of the Effective Date, all mortgages, deeds of trust, Liens, pledges, or other security
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interests against any property of the Estates shall be fully released, settled, and
compromised and all of the right, title, and interest of any Holder of such mortgages, deeds
of trust, Liens, pledges, or other security interests shall revert automatically to the
applicable Debtor and its successors and assigns. Any Holder of such Secured Claim (and
the applicable agents for such Holder) shall be authorized and directed to release any
collateral or other property of any Debtor (including any Cash Collateral and possessory
collateral) held by such Holder (and the applicable agents for such Holder), and to take
such actions as may be reasonably requested by the Debtors or the Wind-Down Debtors, as
applicable, to evidence the release of such Lien and/or security interest, including the
execution, delivery, and filing or recording of such releases. The presentation or filing of
the Confirmation Order to or with any federal, state, provincial, or local agency, records
office, or department shall constitute good and sufficient evidence of, but shall not be
required to effect, the termination of such Liens.
If any Holder of a Secured Claim that has been satisfied in full pursuant to the Plan
or the Confirmation Order, or any agent for such Holder, has filed or recorded publicly
any Liens and/or security interests to secure such Holder’s Secured Claim, then as soon as
reasonably practicable on or after the Effective Date, such Holder (or the agent for such
Holder) shall take any and all steps requested by the Debtors or the Wind-Down Debtors
that are necessary or desirable to record or effectuate the cancelation and/or
extinguishment of such Liens and/or security interests, including the making of any
applicable filings or recordings, and the Wind-Down Debtors shall be entitled to make any
such filings or recordings on such Holder’s behalf.
B. Releases by the Debtors.
Except as otherwise specifically provided herein or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Released Party is, and is deemed, hereby fully, conclusively,
absolutely, unconditionally, irrevocably, and forever released and discharged by each and
all of the Debtors, the Wind-Down Debtors, and their Estates, in each case on behalf of
themselves and their respective successors, assigns, and representatives from any and all
Claims, obligations, rights, suits, damages, and Causes of Action, remedies, and liabilities
whatsoever, whether known or unknown, including any derivative claims asserted or
assertable on behalf of any of the Debtors, the Wind-Down Debtors, and their Estates, that
the Debtors, the Wind-Down Debtors, or their Estates would have been legally entitled to
assert in their own right (whether individually or collectively), or on behalf of the Holder
of any Claim against, or Interest in, a Debtor or other Entity, or that any Holder of any
Claim against or Interest in a Debtor or other Entity could have asserted on behalf of the
Debtors based on or relating to, or in any manner arising from, in whole or in part, the
Debtors (including the capital structure, management, ownership, or operation thereof or
otherwise), the subject matter of, or the transactions or events giving rise to, any Claim or
Interest that is treated in the Plan, the business or contractual arrangements between any
Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in- or
out-of-court restructuring efforts, the purchase, sale, or rescission of any security of the
Debtors or the Wind-Down Debtors, intercompany transactions between or among the
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Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, the Confirmation Order, any Restructuring Transaction, or any document,
instrument, or agreement (including those set forth in the Plan Supplement) executed to
implement the Plan or the Restructuring Transactions, (ii) any Causes of Action
specifically retained by the Debtors pursuant to the Schedule of Retained Causes of Action
to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or Causes of Action
arising out of, or related to, any act or omission of a Released Party that is determined by a
Final Order of the Bankruptcy Court or any other court of competent jurisdiction to have
constituted actual fraud, gross negligence, or willful misconduct (it being agreed that any
Released Parties’ consideration, approval, or receipt of any distribution did not arise from
or relate to actual fraud, gross negligence, or willful misconduct).
For the avoidance of doubt, and notwithstanding anything to the contrary herein, as
of the Effective Date, the Debtors shall be deemed to have released all Released Preference
Actions against all Holders of General Unsecured Claims; provided, however, that the
Debtors’ or Wind-Down Debtors, shall retain such Causes of Action (and such Causes of
Action shall not be released) solely as a counterclaim against any Claim asserted against
the Debtors, unless such Claim relates to the Debtors’ failure to fulfill obligations under
the Committee Settlement or post-Effective Date obligations.
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in this Article VIII.B, 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 such 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 and all Holders of
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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
Debtors, or the Debtors’ Estates asserting any Claim or Cause of Action released pursuant
to the Debtor Release.
C. Releases by Holders of Claims and Interests.
Except as otherwise specifically provided in the Plan or the Confirmation Order,
pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration,
the adequacy of which is hereby confirmed, upon entry of the Confirmation Order, as of
the Effective Date, each Releasing Party is, and is deemed to have, hereby fully,
conclusively, absolutely, unconditionally, irrevocably and forever released each Debtor,
Wind-Down Debtor, and Released Party from any and all Claims, obligations, rights, suits,
damages, and Causes of Action, remedies, and liabilities whatsoever, whether known or
unknown, including any derivative claims asserted or assertable on behalf of the Debtors,
the Wind-Down Debtors, and their Estates (as applicable) that such Entity would have
been legally entitled to assert in their own right (whether individually or collectively),
based on or relating to, or in any manner arising from, in whole or in part, the Debtors
(including the capital structure, management, ownership, or operation thereof or
otherwise), the purchase, sale, or recission of any security of the Debtors or the
Wind-Down Debtors, the subject matter of, or the transactions or events giving rise to, any
Claim or Interest that is treated in the Plan, the business or contractual arrangements
between any Debtor or the Wind-Down Debtors and any Released Party, the Debtors’ in-
or out-of-court restructuring efforts, intercompany transactions between or among the
Debtors or between the Debtors and their non-Debtor Affiliates, the First Lien Credit
Agreement, the Second Lien Credit Agreement, the Note Purchase Agreement, the DIP
Facility, the DIP Facility Documents, the Disclosure Statement Order, the Confirmation
Order, the Sale Order, the First Day Pleadings, the Chapter 11 Cases, the formulation,
preparation, dissemination, solicitation, negotiation, entry into, or filing of the
Restructuring Support Agreement, the Disclosure Statement, the Plan, the Plan
Supplement, the Prepetition Loan Documents, any other Definitive Document, or any
Restructuring Transaction, contract, instrument, release, or other agreement or document
created or entered into in connection with the Restructuring Support Agreement, the
Disclosure Statement, the DIP Facility, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
Chapter 11 Cases, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the
pursuit of Consummation, the administration and implementation of the Plan, including
the issuance or distribution of securities pursuant to the Plan, or the distribution of
property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the
Effective Date related or relating to any of the foregoing.
Notwithstanding anything to the contrary in the foregoing, the releases set forth
above do not release (i) any post-Effective Date obligations of any party or Entity under the
Plan, any Restructuring Transaction, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan, (ii) any
Causes of Action specifically retained by the Debtors pursuant to the Schedule of Retained
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Causes of Action to be attached as an exhibit to the Plan Supplement, or (iii) any Claims or
Causes of Action arising out of, or related to, any act or omission of a Released Party that
is determined by a Final Order of the Bankruptcy Court or any other court of competent
jurisdiction to have constituted actual fraud, gross negligence, or willful misconduct (it
being agreed that any Released Parties’ consideration, approval, or receipt of any
distribution did not arise from or relate to actual fraud, gross negligence, or willful
misconduct).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,
pursuant to Bankruptcy Rule 9019, of the releases set forth in this Article VIII.C, 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 such releases are:
(1) consensual; (2) essential to the Confirmation of the Plan; (3) given in exchange for the
good and valuable consideration provided by the Released Parties; (4) a good faith
settlement and compromise of the Claims released by the releases provided in this Article
VIII.C; (5) in the best interests of the Debtors and their 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 releases provided in this Article VIII.C.
D. Exculpation.
Except as otherwise expressly provided in the Plan or the Confirmation Order, to
the fullest extent permitted by applicable law and solely to the extent such acts or omissions
occurred between the Petition Date and the Effective Date, no Exculpated Party shall have
or incur any liability for, and each Exculpated Party is released and exculpated from any
Cause of Action for any claim related to any act or omission in connection with, relating to,
or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination,
negotiation, or filing of the Disclosure Statement, the Sale Transactions, the Plan, the Plan
Supplement, any other Definitive Document, or any Restructuring Transaction, or any
contract, instrument, release or other agreement or document created or entered into in
connection with the Disclosure Statement, the Plan, the Plan Supplement, the Sale
Transactions, any other Definitive Document, any of the Restructuring Transactions, the
filing of the Chapter 11 Cases, the participation in the DIP Facility, the pursuit of the Sale
Transactions, the pursuit of Confirmation, the pursuit of Consummation, the
administration and implementation of the Plan, including the issuance of securities
pursuant to the Plan, or the distribution of property under the Plan or any other related
agreement, except for claims related to any act or omission that is determined in a Final
Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all
respects such Entities shall be entitled to reasonably rely upon the advice of counsel with
respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties
have, and upon Consummation shall be deemed to have, participated in good faith and in
compliance with the applicable laws with regard to the solicitation of votes and distribution
of consideration pursuant to the Plan and, therefore, are not, and on account of such
distributions shall not be, liable at any time for the violation of any applicable law, rule, or
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regulation governing the solicitation of acceptances or rejections of the Plan or such
distributions made pursuant to the Plan.
E. Injunction.
In accordance with Bankruptcy Code section 1141(d)(3), the Plan does not
discharge the Debtors. Bankruptcy Code section 1141(c) nevertheless provides, among
other things, that the property dealt with by the Plan is free and clear of all Claims and
Interests against the Debtors. Except as otherwise specifically provided in the Plan or for
obligations issued or required to be paid pursuant to the Plan or the Confirmation Order,
all Persons or Entities who have held, hold, or may hold Claims against or Interests in the
Debtors and/or Wind-Down Debtors or Causes of Action , in each case that have been
released or are subject to exculpation pursuant to the Plan, shall be precluded and are
permanently enjoined, from and after the Effective Date, from taking any of the following
actions against, as applicable, the Debtors, the Wind-Down Debtors, the Exculpated
Parties, (including the Debtors and Wind-Down Debtors) or the Released Parties, and any
successors, assigns or representatives of such Persons or Entities: (a) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or, Interests, or Causes of Action;
(b) enforcing, attaching, collecting, or recovering by any manner or means any judgment,
award, decree, or order against such Entities on account of or in connection with or with
respect to any such Claims or, Interests, or Causes of Action; (c) creating, perfecting, or
enforcing any encumbrance of any kind against such Entities or the property or the estates
of such Entities on account of or in connection with or with respect to any such Claims or,
Interests, or Causes of Action; (d) asserting any right of setoff, or subrogation, or
recoupment of any kind against any obligation due from such Entities or against the
property of such Entities on account of or in connection with or with respect to any such
Claims or, Interests, or Causes of Action unless such Holder has Filed a motion requesting
the right to perform such setoff on or before the Effective Date; and (e) commencing or
continuing in any manner any action or other proceeding of any kind on account of or in
connection with or with respect to any such Claims or, Interests, or Causes of Action
released or settled pursuant to the Plan (the “Injunction”); provided however, that the
Debtors and Wind-Down Debtors, in their capacities as Released Parties, shall receive the
benefit of the Injunction through and until the date upon which all remaining property of
the Debtors’ Estates vested in the Wind-Down Debtors has been fully liquidated,
administered, and distributed in accordance with the terms of the Plan and Plan
Administrator Agreement and the Debtors are dissolved under applicable law.
Notwithstanding anything to the contrary in the Plan, the Plan Supplement, or the
Confirmation Order, the automatic stay pursuant to section 362 of the Bankruptcy Code
shall remain in full force and effect with respect to the Wind-Down Debtors until the
closing of these Chapter 11 Cases. Notwithstanding anything to the contrary in the
foregoing, the injunction set forth above does not enjoin the enforcement of any obligations
arising on or after the Effective Date of any Person or Entity under the Plan, any
post-Effective Date transaction contemplated by the Restructuring Transactions, or any
document, instrument, or agreement (including those set forth in the Plan Supplement)
executed to implement the Plan.
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Upon entry of the Confirmation Order, all Holders of Claims and Interests and
their respective current and former employees, agents, officers, directors, managers,
principals, and direct and indirect Affiliates, in their capacities as such, shall be enjoined
from taking any actions to interfere with the implementation or Consummation of the
Plan. Each Holder of an Allowed Claim or Allowed Interest, as applicable, by accepting,
or being eligible to accept, distributions under or Reinstatement of such Claim or Interest,
as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction
provisions set forth in this Article VIII.E.
F. Protections Against Discriminatory Treatment.
To the maximum extent provided by section 525 of the Bankruptcy Code and the
Supremacy Clause of the U.S. Constitution, all Entities, including Governmental Units, shall not
discriminate against the Debtors or deny, revoke, suspend, or refuse to renew a license, permit,
charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to
such a grant against, the Debtors, or another Entity with whom the Debtors have been associated,
solely because the Debtors have been debtors under chapter 11 of the Bankruptcy Code, may
have been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter
11 Cases but before the Debtors are granted or denied a discharge), or have not paid a debt that is
dischargeable in the Chapter 11 Cases.
G. Document Retention.
On and after the Effective Date, the Wind-Down Debtors, or the Debtors, as applicable,
may maintain documents in accordance with their standard document retention policy, as may be
altered, amended, modified, or supplemented by the Debtors, subject to the applicable provisions
of the Plan Administrator Agreement.
H. Reimbursement or Contribution.
If the Bankruptcy Court disallows a Claim for reimbursement or contribution of an Entity
pursuant to section 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is
contingent as of the time of allowance or disallowance, such Claim shall be forever disallowed
and expunged notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the
Confirmation Date: (i) such Claim has been adjudicated as non-contingent; or (ii) the relevant
Holder of a Claim has Filed a non-contingent Proof of Claim on account of such Claim and a
Final Order has been entered prior to the Confirmation Date determining such Claim as no
longer contingent.
I. Term of Injunctions or Stays.
Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or
stays in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or
any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any
injunctions or stays contained in the Plan or the Confirmation Order), shall remain in full force
and effect until the Effective Date. All injunctions or stays contained in the Plan or the
Confirmation Order shall remain in full force and effect in accordance with their terms.
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ARTICLE IX.
CONDITIONS PRECEDENT TO
CONFIRMATION AND THE EFFECTIVE
DATE
A. Conditions Precedent to the Effective Date.
It shall be a condition precedent to the Effective Date of the Plan that the following
conditions shall have been satisfied or waived pursuant to the provisions of Article IX hereof:
a. the Restructuring Transactions, including the Sale Transactions, shall have been
implemented and/or consummated, as applicable, in accordance with the
Restructuring Transactions Memorandum in all material respects, including, without
limitation, consummation of the Trudell APA on or before the Trudell APA Outside
Date;
b. the Bankruptcy Court shall have entered an order approving the Disclosure Statement,
in form and substance acceptable to the Required DIP Lenders;
c. the Bankruptcy Court shall have entered the Confirmation Order, Filed in a manner
consistent in all material respects with the Plan, and acceptable to the Required DIP
Lenders and such order shall have become a Final Order;
d. the DIP Facility shall be in full force and effect, and there shall be no defaults under
the DIP Facility Documents continuing unless waived by the Required DIP Lenders
in accordance with the terms and conditions of the DIP Facility Documents;
e. the Plan Supplement, Definitive Documents, Plan, and all schedules, documents,
supplements, and exhibits thereto, as applicable, shall be acceptable to the Required
DIP Lenders and have become effective and shall be in full force and effect;
f. the Debtors shall have obtained all authorizations, consents, regulatory approvals,
rulings, or documents that are necessary to implement and effectuate the Plan;
g. the Debtors shall have collected (x) from Zoll Medical all amounts that comprise the
Zoll Claims Funding Obligations, and (y) from Trudell all amounts comprising the
Trudell Claims Funding Obligations;
h. the Debtors shall have filed with the Bankruptcy Court the Trudell TSA (inclusive of
all schedules thereto) and the Zoll TSA (inclusive of all schedules thereto);
i. the Debtors shall have provided the Committee with a list of all TSA Contract
Counterparties with whom the Debtors have renegotiated TSA Contracts and confirm
that such TSA Contracts have not been renegotiated to reflect financial terms that are
less favorable than those in existence between the parties on the Petition Date;
j. the Debtors shall have established the Administrative Claims Reserve;
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k. the Debtors shall have (x) made all payments on account of Allowed Administrative
Claims and/or undisputed outstanding due and owing Administrative Claims which
are not being satisfied under the Trudell APA or Zoll APA; (y) remitted all payments
to creditors on behalf of Zoll Medical related to the Zoll Claims Funding Obligations;
and (z) remitted to creditors on behalf of Trudell all amounts related to the Trudell
Funding Obligations;
l. the Debtors shall provide to the Committee evidence confirming the Debtors’
compliance with Article IX.A.k.;
m. g. all professional fees and expenses of retained professionals required to be approved
by the Bankruptcy Court shall have been paid in full or amounts sufficient to pay such
fees and expenses after the Effective Date into the Professional Fee Escrow Account
pending approval of such fees and expenses by the Bankruptcy Court;
n. h. no court of competent jurisdiction or other competent governmental or regulatory
authority shall have issued a final and non-appealable order making illegal or
otherwise restricting, preventing or prohibiting the consummation of the Plan;
o. i. the following documents shall be in full force and effect substantially
contemporaneous with the consummation of the Restructuring Transactions
(including shall not be stayed, modified, revised, or vacated, or subject to any pending
appeal), and shall not have been terminated prior to the Effective Date: (a) any Sale
Orders; (b) such other motions, orders, agreements, and documentation necessary or
desirable to consummate and document the transactions contemplated by this Plan;
(c) all other material customary documents delivered in connection with transactions
of this type (including any and all other documents implementing, achieving,
contemplated by or relating to the Restructuring Transactions); and
p. j. the Debtors shall have implemented the Restructuring Transactions and all
transactions contemplated herein, in a manner consistent in all respects with the Plan,
pursuant to documentation acceptable to the Debtors and the Required DIP Lenders.
B. Waiver of Conditions.
The conditions to Consummation set forth in Article IX may be waived by the Debtors,
subject to the consent of the Required DIP Lenders, without notice, leave, or order of the
Bankruptcy Court or any formal action other than proceeding to confirm or consummate the
Plan.; provided that any such conditions that affect the Committee Settlement shall require the
consent of the Committee, not to be unreasonably withheld, conditioned, or delayed; provided
further that to the extent any conditions or waiver of such condition in the previous proviso
affect the Residual Claims Recovery Pool pursuant to the Committee Settlement, including the
amounts thereof, such waiver shall require the consent of the Required DIP Lenders in their sole
and absolute discretion.
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C. Effect of Failure of Conditions.
If the Consummation of the Plan does not occur, the Plan shall be null and void in all
respects, and nothing contained in the Plan or the Disclosure Statement shall: (i) constitute a
waiver or release of any Claims by the Debtors, any Holders, or any other Entity; (ii) prejudice in
any manner the rights of the Debtors, any Holders of Claims or Interests, or any other Entity; or
(iii) constitute an admission, acknowledgment, offer, or undertaking by the Debtors, any Holders
of Claims or Interests, or any other Entity in any respect. Notwithstanding the foregoing, the
non-Consummation of the Plan shall not require or result in the voiding, rescission, reversal, or
unwinding of the Sale Transactions under the Asset Purchase Agreements or the revocation of
the Debtors’ authority under the Sale Orders to consummate such Sale Transaction.
ARTICLE X.
MODIFICATION, REVOCATION, OR
WITHDRAWAL OF THE PLAN
A. Modifications and Amendments.
Except as otherwise specifically provided in the Plan and subject to section 1127 of the
Bankruptcy Code, the Debtors reserve the right, with the consent of the Required DIP Lenders, to
modify the Plan whether such modification is material or immaterial, and seek Confirmation
consistent with the Bankruptcy Code and, as appropriate, not resolicit votes on such modified
Plan. Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy
Code and Bankruptcy Rule 3019 and those restrictions on modifications set forth in the Plan, the
Debtors expressly reserve their respective rights to revoke or withdraw, to alter, amend, or
modify materially the Plan with respect to the Debtors, one or more times, after Confirmation,
and, to the extent necessary, may initiate proceedings in the Bankruptcy Court to so alter, amend,
or modify the Plan, or to remedy any defect or omission or reconcile any inconsistencies in the
Plan, the Disclosure Statement, or the Confirmation Order, in such matters as may be necessary
to carry out the purposes and intent of the Plan; provided, however, that the Debtors or the
Wind-Down Debtors, as the case may be, shall not amend or modify the Plan in a manner that
adversely affects the treatment of any Class of Claims and/or Interests without resoliciting such
Class of Holders of Claims or Interests. Any modifications that affect the terms of the
Committee Settlement shall require the consent of the Committee, not to be unreasonably
withheld, conditioned, or delayed; provided that any modifications to the terms of the Committee
Settlement that affect the Residual Claims Recovery Pool, including the amounts thereof, shall
require the consent of the Required DIP Lenders in their sole and absolute discretion.
B. Effect of Confirmation on Modifications.
Entry of the Confirmation Order shall mean that all modifications or amendments to the
Plan since the solicitation thereof, but before entry of the Confirmation Order, are approved
pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or
resolicitation under Bankruptcy Rule 3019.
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C. Revocation or Withdrawal of the Plan.
The Debtors reserve the right to revoke or withdraw the Plan before the Confirmation
Date and to file subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan, or if
Confirmation and Consummation does not occur, then: (i) the Plan shall be null and void in all
respects; (ii) any settlement or compromise embodied in the Plan (including the fixing or
limiting to an amount certain of any Claim or Interest or Class of Claims or Interests),
assumption or rejection of Executory Contracts or Unexpired Leases effected by the Plan (and
not assumed in connection with an Asset Purchase Agreement and pursuant to the Sale Order),
and any document or agreement executed pursuant to the Plan, shall be deemed null and void;
and (iii) nothing contained in the Plan shall: (a) constitute a waiver or release of any Claims or
Interests; (b) prejudice in any manner the rights of the Debtors or any other Entity, including the
Holders of Claims; or (c) constitute an admission, acknowledgement, offer, or undertaking of
any sort by the Debtors or any other Entity.
ARTICLE XI.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective
Date, on and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over all
matters arising out of, or related to, the Chapter 11 Cases and the Plan pursuant to
sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate, or establish the priority,
Secured or unsecured status, or amount of any Claim or Interest, including the resolution of any
request for payment of any Administrative Claim and the resolution of any and all objections to
the Secured or unsecured status, priority, amount, or allowance of Claims or Interests;
2. Decide and resolve all matters related to the granting and denying, in whole or in
part, any applications for allowance of compensation or reimbursement of expenses to
Professionals authorized pursuant to the Bankruptcy Code or the Plan;
3. Resolve any matters related to (for the avoidance of doubt, notwithstanding
whether such treatment arises under the terms of the Plan or the Sale Order): (a) the assumption,
assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which
a Debtor is party or with respect to which a Debtor may be liable in any manner and to hear,
determine, and, if necessary, liquidate, any Claims arising therefrom, including Claims related to
the rejection of an Executory Contract or Unexpired Lease, Cure Claims pursuant to section 365
of the Bankruptcy Code, or any other matter related to such Executory Contract or Unexpired
Lease; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease
that is assumed and/or assigned; (c) the Debtors amending, modifying, or supplementing, after
the Effective Date, pursuant to Article X of the Plan, any Executory Contracts or Unexpired
Leases to the Schedule of Assumed Executory Contracts and Unexpired Leases or otherwise; and
(d) any dispute regarding whether a contract or lease is or was executory or expired;
4. Ensure that distributions to Holders of Allowed Claims and Allowed Interests are
accomplished pursuant to the provisions of the Plan;
5. Adjudicate, decide, or resolve any motions, adversary proceedings, contested or
litigated matters, and any other matters, and grant or deny any applications involving a Debtor
that may be pending on the Effective Date;
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6. Adjudicate, decide, or resolve any and all matters related to Causes of Action;
7. Adjudicate, decide, or resolve any and all matters related to section 1141 of the
Bankruptcy Code;
8. Enter and implement such orders as may be necessary or appropriate to execute,
implement, or consummate the provisions of the Plan and all contracts, instruments, releases,
indentures, and other agreements or documents created in connection with the Plan, the Plan
Supplement, or the Disclosure Statement;
9. Resolve any cases, controversies, suits, or disputes that may arise in connection
with the interpretation of any Sale Order;
10. Enter and enforce any order for the sale of property pursuant to sections 363,
1123, or 1146(a) of the Bankruptcy Code, including any sale of the Debtors’ real property, to the
extent the Plan Administrator asks the Bankruptcy Court to approve such sale pursuant to
section 363 of the Bankruptcy Code;
11. Resolve any cases, controversies, suits, disputes, or Causes of Action that may
arise in connection with the Consummation, including interpretation or enforcement of the Plan
or any Entity’s obligations incurred in connection with the Plan;
12. Issue injunctions, enter and implement other orders, or take such other actions as
may be necessary or appropriate to restrain interference by any Entity with Consummation or
enforcement of the Plan;
13. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect
to the settlements, compromises, releases, injunctions, exculpations, and other provisions
contained in Article VIII of the Plan and enter such orders as may be necessary or appropriate to
implement or enforce such releases, injunctions, and other provisions;
14. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect
to the repayment or return of distributions and the recovery of additional amounts owed by the
Holder of a Claim or Interest for amounts not timely repaid pursuant to the Plan;
15. Enter and implement such orders as are necessary or appropriate if the
Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;
16. Enter an order or final decree concluding or closing any of the Chapter 11 Cases;
17. Determine any other matters that may arise in connection with or relate to the
Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release,
indenture, or other agreement or document created in connection with the Plan or the Disclosure
Statement;
18. Adjudicate any and all disputes arising from or relating to distributions under the
Plan or any transactions contemplated therein;
19. Consider any modifications of the Plan, to cure any defect or omission, or to
reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;
20. Determine requests for the payment of Claims and Interests entitled to priority
pursuant to section 507 of the Bankruptcy Code;
21. Hear and determine disputes arising in connection with the interpretation,
implementation, or enforcement of the Plan or the Confirmation Order, or the Sale Orders,
including disputes arising under agreements, documents, or instruments executed in connection
with the Plan;
22. Hear and determine matters concerning state, local, and federal taxes in
accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
23. Hear and determine matters concerning section 1145 of the Bankruptcy Code;
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24. Hear and determine all disputes involving the existence, nature, scope, or
enforcement of any exculpations, discharges, injunctions, and releases granted in connection
with and under the Plan, including under Article VIII;
25. Hear and determine all disputes related to any Sale Transaction;
26. Enforce all orders previously entered by the Bankruptcy Court;
27. Hear any other matter over which the Court has jurisdiction under the Bankruptcy
Code; and
28. Enter an order concluding or closing the Chapter 11 Cases.
ARTICLE XII.
MISCELLANEOUS PROVISIONS
A. Immediate Binding Effect.
Subject to Article IX.A 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 and deemed binding
upon the Debtors, the Wind-Down Debtors, any and all Holders of Claims or Interests
(irrespective of whether the Holders of such Claims or Interests are deemed to have accepted or
rejected the Plan), all Entities that are parties to or are subject to the settlements, compromises,
releases, discharges, 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.
B. Additional Documents.
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, the Wind-Down Debtors, 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.
C. Reservation of Rights.
Except as expressly set forth herein, the Plan shall have no force or effect unless the
Bankruptcy Court enters the Confirmation Order, and the Confirmation Order shall have no force
or effect if the Effective Date does not occur. Neither the Plan, any statement or provision
contained in the Plan, nor any action taken or not taken by the Debtors or any Debtor with
respect to the Plan, the Disclosure Statement, the Confirmation Order, or the Plan Supplement
shall be or shall be deemed to be an admission or waiver of any rights of the Debtors or any
Debtor with respect to the Holders of Claims or Interests, unless and until the Effective Date has
occurred.
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D. Successors and Assigns.
The rights, benefits, and obligations of any Entity named or referred to in the Plan or the
Confirmation Order shall be binding on, and shall inure to the benefit of any heir, executor,
administrator, successor, or assign, Affiliate, officer, director, manager, trustee, agent,
representative, attorney, beneficiaries, or guardian, if any, of each such Entity.
E. Service of Documents.
Any pleading, notice, or other document required by the Plan to be served on or delivered
to the Debtors shall be served, including via email in addition to any other method of service, on
the parties listed below:
1. If to the Debtors:
c/o Vyaire Medical, Inc.
26126 N Riverwoods Blvd
Mettawa, IL 60045
Attention: Charles N. Braley, Chief Restructuring Officer
E-mail address:
with copies to:
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Spencer Winters, P.C.
Yusuf Salloum
E-mail address: spencer.winters@kirkland.com
yusuf.salloum@kirkland.com
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Josh Sussberg, P.C.
Chris Ceresa
E-mail address: jsussberg@kirkland.com
chris.ceresa@kirkland.com
2. If to the DIP Lenders:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attention: Scott J. Greenberg
Jason Zachary Goldstein
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Joshua Brody
Kevin Liang
E-mail address:
SGreenberg@gibsondunn.com
JGoldstein@gibsondunn.com
JBrody@gibsondunn.com
KLiang@gibsondunn.com
Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor
Wilmington, DE 19801
Attention: Laura Davis Jones
E-mail address: ljones@pszjlaw.com
3. If to the Committee:
McDermott Will & Emery LLP
David R. Hurst
Maris J. Kandestin
The Brandywine Building
1000 N. West Street, Suite 1400
Wilmington, DE 19801
E-Mail: dhurst@mwe.com
mkandestin@mwe.com
- and -
Darren Azman
Kristin Going
One Vanderbilt Avenue
New York, NY 10017
E-Mail: dazman@mwe.com
kgoing@mwe.com
4. 3. If to the U.S. Trustee:
Office to the United States Trustee
844 King Street
Suite 2207, Lockbox 35
Wilmington, Delaware 19801
Attention: Benjamin A. Hackman
E-mail address: Benjamin.a.hackman@usdoj.gov
To be effective, all notices, requests, and demands to or upon the Debtors shall be in
writing (which may be by email), and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when actually delivered or, in the case of notice by
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email, when received and telephonically confirmed. After the Effective Date, the Debtors shall
have authority to send a notice to Entities that 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.
F. Enforcement of Confirmation Order.
On and after the Effective Date, the Debtors and the Wind-Down Debtors and Plan
Administrator, as applicable, shall be entitled to enforce the terms of the Confirmation Order and
the Plan (which shall include, for the avoidance of doubt, the Plan Supplement).
G. Entire Agreement.
Except as otherwise indicated, the Plan supersedes all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings, and representations on such
subjects, all of which have become merged and integrated into the Plan.
H. Exhibits.
All exhibits and documents included in the Plan Supplement are incorporated into and
are a part of the Plan as if set forth in full in the Plan. After the exhibits and documents are
Filed, copies of such exhibits and documents shall be available upon written request to the
Debtors’ counsel at the address above or by downloading such exhibits and documents from the
Debtors’ restructuring website at https://omniagentsolutions.com/Vyaire or the Bankruptcy
Court’s website at deb.uscourts.gov.
I. Nonseverability of Plan Provisions.
The provisions of the Plan, including its release, injunction, exculpation, and compromise
provisions, are mutually dependent and non-severable. The 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: (i) valid and enforceable
pursuant to its terms; (ii) 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 (iii) nonseverable and
mutually dependent; provided that, notwithstanding the inclusion of the Asset Purchase
Agreements or any documents ancillary thereto in the Plan Supplement, any Sale Transaction
contemplated in any Asset Purchase Agreement is severable from the Plan and the 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 applicable Sale Transaction contemplated
in any Asset Purchase Agreement or the revocation of the Debtors’ authority under any Sale
Order to consummate such Sale Transaction.
J. Closing of Chapter 11 Cases.
The Plan Administrator shall, promptly after the full administration of the Chapter 11
Cases, File with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 or Local
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Rule 3002-1, including the motion required by Local Rule 3002-1, and any applicable order
necessary to close the Chapter 11 Cases.
Respectfully submitted,
Dated: September 30,November 11, Vyaire Medical, Inc.
2024
on behalf of itself and all other Debtors
/s/ Charles N. Braley
Name: Charles N. Braley
Title: Chief Restructuring Officer
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