Exhibit 1: Blackline of Revised Plan — In re Kabbage, Inc. d/b/a KServicing (Dkt. 397.1)
Summary
Exhibit 1 to a December 30, 2022 filing, Doc 397-1 in Case No. 22-10951 (CTG), titled Blackline of Revised Plan. The document is the Amended Joint Chapter 11 Plan of Liquidation of Kabbage, Inc. (d/b/a KServicing) and its affiliated debtors in the U.S. Bankruptcy Court for the District of Delaware, with Weil, Gotshal & Manges LLP and Richards, Layton & Finger, P.A. listed as proposed attorneys for the debtors. The table of contents covers definitions, administrative expense and priority claims, classification of claims and interests, and treatment of claims, including Reserve Bank Claims (Class 3) and General Unsecured Claims (Class 4). The plan closes with a notices section and a signature block for Laquisha Milner, Chief Executive Officer.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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“Exhibit 1: Blackline of Revised Plan — In re Kabbage, Inc. d/b/a KServicing (Dkt. 397.1).”
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Case 22-10951-CTG Doc 397-1 Filed 12/30/22 Page 1 of 61
EXHIBIT 1
Blackline of Revised Plan
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 ( CTG)
:
:
Debtors.1 : (Joint Administration Requested)
(Jointly Administered)
------------------------------------------------------------ x
AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF
KABBAGE, INC. (d/b/a KSERVICING) AND ITS AFFILIATED DEBTORS
WEIL, GOTSHAL & MANGES LLP
Ray C. Schrock, P.C. (admitted pro hac vice admission pending)
Candace M. Arthur (admitted pro hac vice admission pending)
Natasha S. Hwangpo (admitted pro hac vice admission pending)
Chase A. Bentley (admitted pro hac vice admission pending)
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
RICHARDS, LAYTON & FINGER, P.A.
Daniel J. DeFranceschi (No. 2732)
Amanda R. Steele (No. 5530)
Zachary I. Shapiro (No. 5103)
Matthew P. Milana (No. 6681)
One Rodney Square
920 N. King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
Proposed
Attorneys for Debtors
and Debtors in Possession
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A
LLC (8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address
is 925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
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Dated: October 3December 30, 2022
Wilmington, Delaware
ii
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND INTERPRETATION. .....................................................................1
SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS. .......................................11
2.1. Administrative Expense Claims. ......................................................................................11
2.2. Fee Claims. .......................................................................................................................12
2.3. Priority Tax Claims. .........................................................................................................12
SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS....................................................13
3.1. Classification in General. .................................................................................................13
3.2. Grouping of Debtors for Convenience Only. ...................................................................13
3.3. Summary of Classification. ..............................................................................................13
3.4. Special Provision Governing Unimpaired Claims. ..........................................................14
3.5. Elimination of Vacant Classes..........................................................................................14
3.6. Voting Classes; Presumptions ..........................................................................................14
3.7. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy
Code..............................................................................................................................1514
3.8. No Waiver. .......................................................................................................................15
SECTION 4. TREATMENT OF CLAIMS AND INTERESTS............................................................15
4.1. Priority Non-Tax Claims (Class 1)...................................................................................15
4.2. Other Secured Claims (Class 2). ......................................................................................15
4.3. Reserve Bank Claims (Class 3) ........................................................................................16
4.4. General Unsecured Claims (Class 4)............................................................................1718
4.5. Intercompany Claims (Class 5). ...................................................................................1718
4.6. Intercompany Interests (Class 6). .................................................................................1718
4.7. Subordinated Securities Claims (Class 7). .......................................................................18
4.8. KServicing Equity Interests (Class 8). .........................................................................1819
SECTION 5. MEANS FOR IMPLEMENTATION. .........................................................................1920
5.1. No Substantive Consolidation ......................................................................................1920
5.2. Sources of Consideration for Plan Distribution. ..........................................................1920
5.3. Toggle Implementation19. ...............................................................................................20
5.4. Wind Down Officer..........................................................................................................22
5.4. Plan Administrator. ..........................................................................................................21
5.5. GUC Trust. .......................................................................................................................23
5.65.5. Corporate Action. .........................................................................................................2524
5.75.6. Withholding and Reporting Requirements...................................................................2524
5.85.7. Effectuating Documents; Further Transactions............................................................2625
5.95.8. Preservation of Rights of Action. .................................................................................2726
5.105.9.Certificate of Incorporation and By-Laws....................................................................2726
5.115.10..........................................................Cancellation of Existing Securities and
Agreements.......................................................................................................................27
5.125.11. ........................................................................................................Subordinated
Claims...............................................................................................................................27
5.13. Nonconsensual Confirmation. ..........................................................................................28
5.145.12. ............................................................................................Closing of Chapter 11
Cases.............................................................................................................................2827
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TABLE OF CONTENTS
(continued)
5.155.13. ...................................................................................................Notice of Effective
Date. .............................................................................................................................2827
5.165.14. .................................................................................................................Corporate
Form .............................................................................................................................2827
5.175.15........................................................................................................................Separability.
2827
SECTION 6. DISTRIBUTIONS........................................................................................................2827
6.1. Distributions Generally. ...............................................................................................2827
6.2. Distribution Record Date..................................................................................................28
6.3. Date of Distributions. ...................................................................................................2928
6.4. Disbursing Agent..........................................................................................................2928
6.5. Rights and Powers of Disbursing Agent. .....................................................................2928
6.6. Expenses of Disbursing Agent. ....................................................................................3029
6.7. No Postpetition Interest on Claims...............................................................................3029
6.8. Delivery of Distributions..............................................................................................3029
6.9. Distributions after Effective Date.................................................................................3029
6.10. Unclaimed Property..........................................................................................................30
6.11. Time Bar to Cash Payments. ........................................................................................3130
6.12. Manner of Payment under Plan. ...................................................................................3130
6.13. Satisfaction of Claims. .................................................................................................3130
6.14. Minimum Cash Distributions. ......................................................................................3130
6.15. Setoffs and Recoupments. ............................................................................................3130
6.16. Allocation of Distributions between Principal and Interest. ............................................31
6.17. No Distribution in Excess of Amount of Allowed Claim. ...........................................3231
SECTION 7. PROCEDURES FOR DISPUTED CLAIMS...............................................................3231
7.1. Objections to Claims. ...................................................................................................3231
7.2. Resolution of Disputed Claims.....................................................................................3231
7.3. Payments and Distributions with Respect to Disputed Claims. ...................................3231
7.4. Distributions after Allowance.......................................................................................3231
7.5. Estimation of Claims. ...................................................................................................3331
7.6. No Distributions Pending Allowance...........................................................................3332
7.7. Claim Resolution Procedures Cumulative. ..................................................................3332
7.8. Interest. .........................................................................................................................3332
7.9. Insured Claims..............................................................................................................3332
SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. ...................................3433
8.1. Rejection of Executory Contracts and Unexpired Leases. ...........................................3433
8.2. Determination of Assumption Disputes and Deemed Consent. ...................................3433
8.3. Rejection Damages Claims...........................................................................................3534
8.4. Insurance Policies.........................................................................................................3534
8.5. Indemnification Obligations.............................................................................................35
8.58.6. Intellectual Property Licenses and Agreements. ..............................................................36
8.68.7. Assignment. ......................................................................................................................36
8.78.8. Modifications, Amendments, Supplements, Restatements, or Other Agreements.......3736
8.88.9. Reservation of Rights. ..................................................................................................3736
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TABLE OF CONTENTS
(continued)
SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.........................................37
9.1. Conditions Precedent to the Effective Date......................................................................37
9.2. Waiver of Conditions Precedent.......................................................................................38
9.3. Effect of Failure of Conditions to Effective Date. ...........................................................38
SECTION 10. EFFECT OF CONFIRMATION......................................................................................38
10.1. Vesting of Assets..............................................................................................................38
10.2. Term of Injunctions or Stays. ...........................................................................................39
10.3. Injunction..........................................................................................................................39
10.4. Binding Effect. .................................................................................................................40
10.5. Releases by the Debtors....................................................................................................40
10.6. Releases By Holders of Claims and Interests...................................................................41
10.7. Exculpation.......................................................................................................................41
10.8. Waiver of Statutory Limitation on Releases. ...................................................................42
10.9. Solicitation of the Plan. ....................................................................................................42
10.10. Corporate Action. .............................................................................................................42
SECTION 11. RETENTION OF JURISDICTION. ................................................................................43
11.1. Retention of Jurisdiction. .................................................................................................43
11.2. Courts of Competent Jurisdiction.....................................................................................44
SECTION 12. MISCELLANEOUS PROVISIONS. ...............................................................................44
12.1. Payment of Statutory Fees................................................................................................44
12.2. Substantial Consummation...............................................................................................45
12.3. Dissolution of Creditors’ Committee. ..............................................................................45
12.4. Amendments.....................................................................................................................45
12.5. Revocation or Withdrawal of the Plan. ............................................................................45
12.6. Severability of Plan Provisions upon Confirmation.....................................................4546
12.7. Governing Law.................................................................................................................46
12.8. Time..................................................................................................................................46
12.9. Additional Documents......................................................................................................46
12.10. Immediate Binding Effect. ...............................................................................................46
12.11. Successors and Assigns. ...............................................................................................4647
12.12. Entire Agreement..............................................................................................................47
12.13. Notices..............................................................................................................................47
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Kabbage, Inc. d/b/a KServicing, Kabbage Canada Holdings, LLC, Kabbage Asset
Securitization LLC, Kabbage Asset Funding 2017-A LLC, Kabbage Asset Funding 2019-A LLC, and
Kabbage Diameter, LLC proposes the following amended joint chapter 11 plan of liquidation pursuant to
section 1121(a) of the Bankruptcy Code. Capitalized terms used herein shall have the meanings set forth
in Section 1.A.
SECTION 1. DEFINITIONS AND INTERPRETATION.
A. Definitions.
1.1 “Adequate Protection” has the meaning set forth in the Cash Collateral Order.
1.11.2 “Administrative Expense Claim” means, Claim for costs or expenses of
administration incurred during the Chapter 11 Cases of a kind specified under sections 324, 328, 330,
503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including, without limitation, (i) the actual
and necessary costs and expenses incurred after the Commencement Date and through the Effective Date
of preserving the Estates and operating the businesses of the Debtors; (ii) Fee Claims, and (iii) all Allowed
Claims that are to be treated as Administrative Expense Claims pursuant to a final order of the Bankruptcy
Court under section 546(c)(2)(A) of the Bankruptcy Code.
1.21.3 “Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code.
1.31.4 “Allowed” means, with respect to any Claim against or Interest in a Debtor, (i) any
Claim or Interest arising on or before the Effective Date (a) as to which no objection to allowance has been
interposed within the time period set forth in this Plan, or (b) as to which any objection has been determined
by a Final Order of the Bankruptcy Court to the extent such objection is determined in favor of the
respective holder, (ii) any Claim or Interest as to which the liability of the Debtors and the amount thereof
are determined by a Final Order of a court of competent jurisdiction other than the Bankruptcy Court,
(iii) any Claim or Interest expressly Allowed under this Plan, or (iv) any Claim that is listed in the Debtors’
Schedules as liquidated, non-contingent, and undisputed; provided, that, notwithstanding the foregoing, the
Debtors will retain all claims and defenses with respect to Allowed Claims that are reinstated or otherwise
unimpaired pursuant to this Plan.
1.5 “American Express” means, American Express Travel Related Services
Company, Inc.
1.6 “American Express Transaction” means, the Debtors’ sale of its online legacy
lending platform pursuant to that certain Agreement and Plan of Merger, dated August 16, 2020.
1.41.7 “Asset” means, all of the rights, title, and interests of a Debtor in, and to property
of whatever type or nature, including, without limitation, real, personal, mixed, intellectual, tangible, and
intangible property.
1.51.8 “Assumption Dispute” means, a pending objection relating to assumption or
assumption and assignment of an executory contract or unexpired lease pursuant to section 365 of the
Bankruptcy Code.
1.61.9 “Assumption Schedule” means, the schedule of executory contracts and unexpired
leases to be assumed by the Debtors and assigned to the Wind Down Estate or GUC Trust as applicable,
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pursuant to the Plan and included in the Plan Supplement, as may be amended, modified, or supplemented
from time to time.
1.71.10 “Avoidance Actions” means, any and all actual or potential Claims and Causes of
Action to avoid a transfer of property or an obligation incurred by the Debtors arising under chapter 5 of
the Bankruptcy Code, including sections 502(d), 510, 542, 544, 545, 547, 548, 549, 550, 551, 552, and
553(b) of the Bankruptcy Code or under similar or related state or federal statutes and common law.
1.81.11 “Bankruptcy Code” means, title 11 of the United States Code, 11 U.S.C. §§ 101,
et seq., as amended from time to time, as applicable to the Chapter 11 Cases.
1.91.12 “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 any reference made under
section 157 of title 28 of the United States Code, the unit of such District Court having jurisdiction over the
Chapter 11 Cases under section 151 of title 28 of the United States Code.
1.101.13 “Bankruptcy Rules” means, the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code
and any Local Bankruptcy Rules of the Bankruptcy Court, in each case, as amended from time to time and
applicable to the Chapter 11 Cases.
1.111.14 “Business Day” means, any day other than a Saturday, a Sunday or any
other day on which banking institutions in New York, New York are required or authorized to close by law
or executive order.
1.121.15 “Cash” means, legal tender of the United States of America.
1.16 “Cash Collateral Order” means, the Order Under 11 U.S.C. §§ 105,361,362,and
363, and Bankruptcy Rules 2002, 4001,6004, and 9014 (I) Authorizing Debtors to Use Cash Collateral and
(II) Granting Adequate Protection to Secured Lender entered by the Bankruptcy Court on November 7,
2022 [Docket No. 225].
1.131.17 “Cause of Action” means, any action, Claim, cross-claim, third-party
claim, cause of action, controversy, dispute, demand, right, lien, indemnity, contribution, guaranty, suit,
obligation, liability, loss, debt, fee or expense, damage, interest, judgment, cost, account, defense, remedy,
offset, power, privilege, proceeding, license, and franchise of any kind or character whatsoever, known or
unknown, foreseen or unforeseen, existing or hereafter 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 Commencement Date,
in contract or in tort, in law or in equity, or pursuant to any other theory of law (including, without limitation,
under any state or federal securities laws). Cause of Action also includes (a) any right of setoff,
counterclaim, or recoupment and any claim for breach of contract or for breach of duties imposed by law
or in equity, (b) the right to object to Claims or Interests, (c) any claim pursuant to section 362 or chapter 5
of the Bankruptcy Code or any other Avoidance Actions, (d) any claim or defense including fraud, mistake,
duress, and usury and any other defenses set forth in section 558 of the Bankruptcy Code, and (e) any claims
under any state law or foreign law, including, without limitation, any fraudulent transfer or similar claims.
1.141.18 “Chapter 11 Cases” means, the jointly administered cases under chapter
11 of the Bankruptcy Code commenced by the Debtors on October 3, 2022, and styled In re Kabbage, Inc.
d/b/a KServicing, Case No. 22-[] ([●]22-12051 (CTG).
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1.151.19 “Claim” has the meaning set forth in section 101(5) of the Bankruptcy
Code, as against any Debtor.
1.161.20 “Class” means, any group of Claims or Interests classified as set forth in
Section 3 of the Plan pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code.
1.171.21 “Commencement Date” means, the date on which the Debtors
commenced the Chapter 11 Cases.
1.181.22 “Confirmation” means, the entry on the docket of the Chapter 11 Cases
of the Confirmation Order.
1.191.23 “Confirmation Date” means, the date on which the Bankruptcy Court
enters the Confirmation Order.
1.201.24 “Confirmation Hearing” means, the hearing to be held by the Bankruptcy
Court regarding Confirmation of the Plan, as such hearing may be adjourned or continued from time to
time.
1.211.25 “Confirmation Order” means, an order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.221.26 “Creditors’ Committee” means, the statutory committee of unsecured
creditors appointed by the U.S. Trustee in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy
Code, if any.
1.231.27 “CRB” means, Cross River Bank.
1.241.28 “CRB Agreements” means, collectively, (i) that certain Loan Program
Agreement between Cross River Bank and KServicing dated as of April 13, 2020 (as may be amended or
restated from time to time, the “CRB LPA”); and (ii) certain Sale and Servicing Agreement among Cross
River Bank and KServicing dated as of May 6, 2020 (as may be amended or restated from time to time, the
“CRB SAS Agreement”).
1.251.29 “CRB PPP Loans” means, any PPP Loans that, as of the Commencement
Date, are either (i) serviced by KServicing pursuant to the CRB LPA as of the Commencement Date, or
(ii) “Sold Assets” as defined in CRB SAS Agreement.
1.26 “CRB Servicer Transfer Date” has the meaning set forth in Section 5.3(a) hereof.
1.271.30 “CRB Servicing Costs” has the meaning set forth in Section 5.3 hereof.
1.281.31 “CUBI“CB” means, Customers Bancorp, Inc.
1.291.32 “CUBI CB Agreements” means, collectively, (i) that certain Processing
and Servicing Agreement Pursuant to Division A, Title I of the CARES Act entered into on April 27, 2020
between CUBI CB and KServicing (as may be amended or restated from time to time, the “CUBI CB
PSA”); (ii) that certain Sale and Servicing Agreement among CUBI CB and KServicing dated as of
February 2, 2021 (as may be amended or restated from time to time, the “CUBI CB SAS Agreement”); and
(iii) that certain SaaS Services Agreement between CUBI CB and KServicing dated as of April 24, 2020
(as may be amended or restated from time to time).
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1.301.33 “CUBI CB PPP Loan” means, any PPP Loans that, as of the
Commencement Date, are either (i) serviced by KServicing pursuant to the CUBI CB PSA as of the
Commencement Date, or (ii) “Sold Assets” as defined in CUBI CB SAS Agreement.
1.31 “CUBI Receivable” means, the servicing fees in the total aggregate amount of
approximately $65.5 million withheld as of the Commencement Date by CUBI which are owed to
KServicing on account of services rendered pursuant to the CUBI Agreements.
1.32 “CUBI Servicer Transfer Date” has the meaning set forth in Section 5.3(a) hereof.
1.331.34 “CUBI “CB Servicing Costs” has the meaning set forth in Section 5.3(a)
hereof.
1.341.35 “Cure Amount” means, the payment of Cash or the distribution of other
property (as the parties may agree or the Bankruptcy Court may order) as necessary pursuant to section
365(b)(1)(A) of the Bankruptcy Code to permit the Debtors to assume such executory contract or unexpired
lease.
1.351.36 “D&O Policy” means, any insurance policy that covers, among others,
current or former directors, members, trustees, managers, and officers liability issued at any time to or
providing coverage to the Debtors and all agreements, documents or instruments relating thereto, including
any runoff policies or tail coverage.
1.361.37 “Debtors” means, KServicing; Kabbage Canada Holdings, LLC; Kabbage
Asset Securitization LLC; Kabbage Asset Funding 2017-A LLC; Kabbage Asset Funding 2019-A LLC;
and Kabbage Diameter, LLC, in each case, solely in its capacity as a debtor in possession under the
Bankruptcy Code.
1.371.38 “Debtors in Possession” means, the Debtors in their capacity as debtors
in possession in the Chapter 11 Cases pursuant to sections 1101, 1107(a), and 1108 of the Bankruptcy Code.
1.381.39 “Definitive Documents” means, the documents that are otherwise
necessary or desirable to implement, or otherwise relate to, the Funded Transaction or Unfunded
Transaction, as applicable, implementation of the transactions contemplated herein including, but not
limited to: (i) the Plan; (ii) each of the documents comprising the Plan Supplement; (iii) the Disclosure
Statement; (iv) any motion seeking the approval of the adequacy of the Disclosure Statement and
solicitation of the Plan; (v) solicitation materials; and (vi) the Confirmation Order.
1.391.40 “Disallowed” means, with respect to any Claim or Interest, that such
Claim or Interest has been determined by a Final Order or specified in a provision of the Plan not to be
Allowed.
1.401.41 “Disbursing Agent” means, (i) solely with respect to the Funded
Transaction, the Plan Administrator; and (ii) solely with respect to the Unfunded Transaction, the Plan
Administrator and the GUC Trustee (solely with respect to the GUC Assets), the Wind Down Officer or
any Person engaged by the Wind Down Estate, Plan Administrator, the GUC Trust, or the GUC Trustee or
Wind Down Officer.
1.411.42 “Disclosure Statement” means, the disclosure statement filed by the
Debtors in support of the Plan, as approved by the Bankruptcy Court pursuant to section 1125 of the
Bankruptcy Code (as may be amended, supplemented, or modified from time to time).
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1.421.43 “Disputed” means, with respect to a Claim or Interest, that (a) is neither
Allowed nor Disallowed under the Plan or a Final Order, nor deemed Allowed under sections 502, 503, or
1111 of the Bankruptcy Code; or (b) the Debtors or any parties in interest have interposed a timely objection
or request for estimation, and such objection or request for estimation has not been withdrawn or determined
by a Final Order. If the Debtors, or any parties in interest, dispute only a portion of a Claim, such Claim
shall be deemed Allowed in any amount the Debtors, or any parties in interest, do not dispute, and Disputed
as to the balance of such Claim.
1.431.44 “Distribution” means, payment or distribution of consideration to holders
of Allowed Claims pursuant to this Plan.
1.441.45 “Distribution Record Date” means, the Effective Date of the Plan or such
other date as determined by the Plan AdministratorWind Down Officer. For the avoidance of doubt, the
Distribution Record Date shall not apply to holders of public securities.
1.451.46 “Effective Date” means, the date on which all conditions to the
effectiveness of the Plan set forth in Section 9 hereof have been satisfied or waived in accordance with the
terms of the Plan.
1.461.47 “Entity” has the meaning set forth in section 101(15) of the Bankruptcy
Code.
1.471.48 “Estate or Estates” means, individually or collectively, the estate or
estates of the Debtors created under section 541 of the Bankruptcy Code.
1.48 “Excess SALT Amounts” means, amounts paid by KServicing to the Reserve
Bank in connection with excess state and local tax components of certain PPP Loans.
1.49 “Exculpated Parties” means, collectively: (a) the Debtors, (b) the Creditors’
Committee, if any, and each of its members the following in their capacity as such: (a) the Debtors and the
Estates, (b) the Debtors’ officers, directors, managers, and professionals, and (c) with respect to each of the
foregoing Persons or Entities in clauses (a) through (d), all of their Related Parties who acted on their behalf
in connection with the matters as to which exculpation is provided herein., such Entities’ successors and
assigns; provided that the Former Officers and Directors shall not be “Exculpated Parties.”
1.50 “Fee Claim” means, a Claim for professional services rendered or costs incurred
on or after the Commencement Date through the Effective Date by professional persons retained by the
Debtors or the Creditors’ Committee pursuant to sections 327, 328, 329, 330, 331, 503(b) or 1103 of the
Bankruptcy Code in the Chapter 11 Cases.
1.51 “Fee Escrow Account” means, the depository account established or designated
by the Debtors to be funded with Cash for payment of Fee Claims in accordance with the terms of this Plan.
1.52 “Final Order” means, an order or judgment of a court of competent jurisdiction
that has been entered on the docket maintained by the clerk of such court and is in full force and effect,
which has not been reversed, vacated, or stayed and as to which (a) the time to appeal, petition for certiorari,
or move for a new trial, reargument, or rehearing has expired and as to which no appeal, petition for
certiorari, or other proceedings for a new trial, reargument, or rehearing shall then be pending, or (b) if an
appeal, writ of certiorari, new trial, reargument, or rehearing thereof has been sought, such order or
judgment shall have been affirmed by the highest court to which such order was appealed, or certiorari
shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted in no
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modification of such order, and the time to take any further appeal, petition for certiorari, or move for a
new trial, reargument, or rehearing shall have expired; provided, however, that no order or judgment shall
fail to be a “Final Order” solely because of the possibility that a motion under Rules 59 or 60 of the Federal
Rules of Civil Procedure or any analogous Bankruptcy Rule (or any analogous rules applicable in another
court of competent jurisdiction) or sections 502(j) or 1144 of the Bankruptcy Code has been or may be filed
with respect to such order or judgment.
1.53 “Former Officers and Directors” means, any Person that (a) served in a capacity
as an officer or director of any of the Debtors , other than those Persons that are officers or directors of the
Debtors immediately prior to the Petition prior to the Commencement Date and (b) was not an officer or
director of any of the Debtors as of the Commencement Date.
1.54 “Funded Transaction” has the meaning set forth in Section 5.3(a) hereof.
1.551.54 “General Unsecured Claim” means, any Claim against the Debtors
(other than any Intercompany Claims) as of the Commencement Date that is neither secured by collateral
nor entitled to priority under the Bankruptcy Code or any final order of the Bankruptcy Court, including
but not limited to any Claim by any Partner Bank.
1.561.55 “Governmental Unit” has the meaning set forth in section 101(27) of the
Bankruptcy Code.
1.571.56 “GUC Pool” means, in the event of the Funded Transaction, the Cash pool
established pursuant to this Plan , (a) on the Effective Date, in the amount of the GUC Pool Amount, (b)
after the Effective Date but prior to the conclusion of the Wind Down, all Cash minus a reasonable amount
of Cash determined by the Wind Down Officer, subject to the consent of the Reserve Bank needed to fund
the administration of the Wind Down Estate, and (c) at the conclusion of the Wind Down, any residual
amounts remaining in the Wind Down Estate (other than amounts on account of Post-Effective Date
Servicing Costs, if applicable), shall be transferred to the GUC Pool, which Cash shall be held in the
Debtors’ general accounts and not segregated.
1.581.57 “GUC Pool Amount” means, in the event of the Funded Transaction, as
of the Effective Date, an amount equal to the amount of any remaining Net Cash Proceeds.
1.591.58 “GUC Pool Class A Claims” means, the Claims which shall entitle the
respective holder to its pro rata share of Interest” means an interest that entitles the Reserve Bank to the
proceeds of the GUC Pool, after deducting expenses until such time that the Reserve Bank Claims are paid
in full.
1.601.59 “GUC Pool Class B ClaimsInterest” means, the Claims an interest which
shall entitle the respective holder to its pro rata share of the proceeds of the GUC Pool, after Cash
distributions are made to holders of GUC Pool Class A Claims in an aggregate amount equal to
$[●].Interests sufficient to pay such holders’ Allowed GUC Pool Class A Interests in full.
1.61 “GUC Trust” means, in the event of the Unfunded Transaction, a trust established
pursuant to the GUC Trust Agreement and which shall be responsible for the administration and distribution
of the GUC Trust Assets.
1.62 “GUC Trust Assets” means in the event of an Unfunded Transaction, any assets
of the GUC Trust, including GUC Trust Causes of Action and any proceeds thereof.
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1.63 “GUC Trust Agreement” means, in the event of an Unfunded Transaction, the
agreement by and among the Debtors and the GUC Trustee, substantially in the form included in the Plan
Supplement.
1.64 “GUC Trustee” means, in the event of an Unfunded Transaction, the Person
selected to serve as the trustee of the GUC Trust, and any successor thereto in accordance with the GUC
Trust Agreement.
1.65 “GUC Trust Causes of Action” mean, in the event of an Unfunded Transaction,
any Estate Cause of Action.
1.66 “GUC Trust Beneficial A Interests” means, the non-certified and non-transferable
beneficial interests in the GUC Trust which shall entitle the respective holder to its pro rata share of the
GUC Trust Assets, after deducting the expenses of the GUC Trust.
1.67 “GUC Trust Beneficial B Interests” means, the non-certified and non-transferable
beneficial interests in the GUC Trust which shall entitle the respective holder to its pro rata share of the
GUC Trust Assets, after the GUC Trust has distributed Cash to holders of Reserve Bank Priority Claims in
an aggregate amount equal to $[●].
1.681.60 “Impaired” means, with respect to a Claim, Interest or Class of Claims
or Interests, “impaired” within the meaning of section 1124 of the Bankruptcy Code.
1.691.61 “Initial Cash Proceeds” means, collectively (a) Cash or cash equivalents
on hand, (b) recovery of account receivables, (c) proceeds from Estate Causes of Action; (d) any borrower
payments collected on account of the Legacy Loans, and (e) Loan Servicing Proceeds as of the Effective
Date.
1.701.62 “Insured Claim” means, any Claim or portion of a Claim that is, or may
be, insured under any of the Debtors’ insurance policies.
1.711.63 “Intercompany Claim” means, a Claim against any Debtor by another
Debtor or non-Debtor Affiliate of such other Debtor.
1.721.64 “Intercompany Interest” means, an Interest in a Debtor other than a
KServicing Equity Interest.
1.731.65 “Interest” means, any equity security (as defined in section 101(16) of the
Bankruptcy Code) of a Debtor, including all shares, common stock, or other instrument evidencing any
fixed or contingent ownership interest in any Debtor, whether or not transferable, and any option, warrant,
or other right, contractual or otherwise, to acquire any such interest in the Debtors, whether fully vested or
vesting in the future, including, without limitation, equity or equity-based incentives, grants, or other
instruments issued, granted or promised to be granted to current or former employees, directors, officers,
or contractors of the Debtors, to acquire any such interests in the Debtors that existed immediately before
the Effective Date.
1.66 “KS Direct PPP Loans” means, any PPP Loans that, as of the Commencement
Date, are originated, funded, and serviced by the Debtor for its own account.
1.741.67 “KServicing” means, Kabbage, Inc. (d/b/a KServicing).
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1.751.68 “KServicing Equity Interests” means, all Interests in KServicing,
including KServicing Stock and any options, warrants or rights to acquire any such Interests.
1.761.69 “KServicing Stock” means, all common stock in KServicing.
1.771.70 “Legacy Loan(s)” means, any outstanding loan owned by KServicing that
is not a PPP Loan.
1.71 “Legacy Loan Sale” means, a sale of all of the Legacy Loans, in each case,
whether by way of sale of assets, merger, consolidation, sale of equity interests or other transaction
structure.
1.781.72 “Lien” has the meaning set forth in section 101(37) of the Bankruptcy
Code.
1.791.73 “Loan Servicing Proceeds” means, all fees and amounts due and payable
to KServicing with respect to its servicing of PPP Loans and Legacy Loans, including without limitation,
(a) all fees and amounts due and payable to KServicing pursuant to Partner Bank Agreements; and (b) any
servicing fees or interest due and payable to KServicing by the SBA, including any lender processing fees
payable by the SBA under the PPP for the account of any Debtor pursuant to the Partner Bank Agreements.
1.801.74 “Net Cash Proceeds” means, as of the Effective Date, (a) Initial Cash
Proceeds, less (b) the amount of Cash (i) necessary to pay holders of Allowed (Claims or reserve for
Disputed Administrative Expense Claims, Fee Claims, Priority Tax Claims, Priority Non-Tax Claims,
Other Secured Claims; (ii) the Wind Down Amount (for the avoidance of doubt, not including any Post-
Effective Date Servicing Costs); and (iii) necessary to satisfy any Statutory Fees required to be paid in
accordance with the Bankruptcy Code, the Bankruptcy Rules or any order of the Bankruptcy Court, and
(iii) fund the Wind Down Budget.
1.75 “Operating Circular” means the Federal Reserve’s Operating Circular No. 10,
effective July 16, 2013.
1.811.76 “Other Secured Claim” means, a Secured Claim, other than a Reserve
Bank Secured Claim.
1.821.77 “Partner Bank Agreements” means, together, the CUBI CB Agreements
and the CRB Agreements, including all schedules, exhibits, and annexes thereto.
1.831.78 “Partner Banks” means, together, CRB and CUBICB.
1.841.79 “Person” means, an individual, corporation, partnership, joint venture,
association, joint stock company, limited liability company, limited liability partnership, trust, estate,
unincorporated organization, Governmental Unit or other Entity.
1.851.80 “Plan” means, this joint chapter 11 plan, including the exhibits hereto and
the Plan Supplement, as the same may be amended or modified from time to time in accordance with
Section 12.4 herein.
1.86 “Plan Administrator” means, the person or entity selected by the Debtors charged
with overseeing the tasks outlined in Section 5.4 of this Plan, or any successor thereto. The identity of the
Plan Administrator shall be filed with the Bankruptcy Court prior to the Confirmation Hearing.
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1.871.81 “Plan Supplement” means, a supplemental appendix to the Plan
containing, among other things, forms or term sheets of applicable documents, schedules and exhibits to
the Plan to be filed with the Court and subject to the consent of the Reserve Bank, not to be unreasonably
withheld, including, but not limited to, the following: (a) the Assumption Schedule, (b) a non-exclusive
schedule of Retained Causes of Action, (c) the Wind Down Budget, (d) the identity of the Plan
Administrator, (eWind Down Officer, (e) a Wind Down Agreement, and (f) information required to be
disclosed in accordance with section 1129(a)(5) of the Bankruptcy Code, (f) to the extent known the
identities of the members of the New Board, (g) identity of the GUC Trustee, if applicable; and (h) the GUC
Trust Agreement, if applicable. Through the Effective Date, the Debtors shall have the right to amend any
documents contained in, and exhibits to, any Plan Supplement document subject to the consent of the
Reserve Bank, not to be unreasonably withheld, and subject to the requirements of Section 12.4 of the Plan.
1.82 “Pledged PPPLF Loans” means PPP Loans pledged to the Reserve Bank as
PPPLF Collateral pursuant to the Program Agreements.
1.881.83 “PPP” means, the SBA’s 7(a) loan program titled the Paycheck Protection
Program, which was added to the SBA’s 7(a) loan program by section 1102 of the Coronavirus Aid, Relief,
and Economic Security Act, as amended by the Economic Aid to Hard-Hit Small Businesses, Nonprofits,
and Venues Act and as may be amended from time to time.
1.891.84 “PPP Loan” means, any loan issued under the PPP.
1.85 “PPP Transfer” has the meaning set forth in Section 5.3(b) hereof.
1.901.86 “PPPLF” means, the Paycheck Protection Program Liquidity Facility.
1.911.87 “PPPLF Advance” means, Cash advanced to KServicing by the Reserve
Bank pursuant to the Letter Agreement in principal amount equal to the aggregate amount of PPPLF
Collateral pledged to secure such advanceProgram Agreements.
1.92 “PPPLF Collateral” means, PPP Loans pledged as collateral for PPPLF Advances
under the PPPLF in accordance with the PPPLF Documents.
1.93 “PPPLF Documents” means, together, (i) that certain Paycheck Protection
Program Liquidity Facility Letter of Agreement (the “Letter Agreement”) dated January 14, 2021, by and
among KServicing and the Federal Reserve Bank designated by the Board of Governors of the Federal
Reserve System, and (ii) the Federal Reserve’s Operating Circular No. 10, effective July 16, 2013
(the “Operating Circular”).
1.94 “PPPLF Transfer” has the meaning set forth in Section 5.3(a) hereof.
1.95 “PPPLF Servicer Transfer Date” has the meaning set forth in Section 5.3(a)
hereof.
1.88 “PPPLF Collateral” means PPP Loans which are pledged as Collateral (as defined
in the Operating Circular) for the Obligations (as defined in the Operating Circular) under the Program
Agreements (including any proceeds and offspring of such Collateral).
1.961.89 “Post-Effective Date PPPLF “Post-Effective Date PPP Servicing” has
the meaning set forth in Section 5.3(a5.3(b) hereof.
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1.971.90 “Post-Effective Date Servicing Costs” means, the CUBI CB Servicing
Costs, the Reserve Bank Servicing Costs, and the CRB Servicing Costs.
1.981.91 “Prerequisite Condition” has the meaning set forth in Section 9.1(e)
hereof.
1.991.92 “Priority Non-Tax Claim” means, any Claim other than an
Administrative Expense Claim, Reserve Bank Priority Claims, or a Priority Tax Claim entitled to priority
in payment as specified in section 507(a) of the Bankruptcy Code.
1.1001.93 “Priority Tax Claim” means, any secured or unsecured Claim of a
Governmental Unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8)
of the Bankruptcy Code.
1.1011.94 “Pro Rata” means, the proportion that an Allowed Claim or Interest in a
particular Class bears to the aggregate amount of Allowed Claims or Interests in that Class, or the proportion
that Allowed Claims or Interests in a particular Class bear to the aggregate amount of Allowed Claims and
Disputed Claims or Allowed Interests and Disputed Interests in a particular Class and other Classes entitled
to share in the same recovery as such Class under the Plan.
1.95 “Program Agreements” means together, (i) that certain Paycheck Protection
Program Liquidity Facility Letter of Agreement dated May 12, 2020 (as amended January 14, 2021), by
and among KServicing and the Reserve Bank, and (ii) the Operating Circular.
1.1021.96 “Proof of Claim” means, a proof of Claim filed against any of the Debtors
in the Chapter 11 Cases.
1.97 “Quarterly Fees” has the meaning set forth in Section 12.1(b) hereof.
1.1031.98 “Related Parties” means, with respect to any Exculpated Party or
Released Party: (a) such entities’ predecessors (other than with respect to the Debtors), specific Person,
each of such Person’s: (a) successors and assigns, subsidiaries, affiliates, managed accounts or funds, (b)
all of their respective postpetition officers, postpetition directors, postpetition principals, postpetition
employees, postpetition agents, postpetition trustees, postpetition advisory board members, financial
advisors, attorneys, accountants, actuaries, investment bankers, consultants, representatives, management
companies, fund advisors and other professionals, solely to the extent such persons and entities acted on
the behalf of the Released Parties in connection with the matters as to which releases are provided in the
Plan, and (c) such entities’ respective and (c) heirs, executors, estates, servants and nominees; provided,
that (x) the Former Officers and Directors of the Debtors , (y) shareholders of the Debtors as of the date the
American Express Transaction was consummated, and (z) American Express and its Affiliates shall not be
“Related Parties.”
1.1041.99 “Released Parties” means, collectively, each of the following in their
capacity as such: (a) the Debtors, (b) the Liquidating Debtors, (c) [’ and the Debtors’ Related Parties; (b)
the Wind Down Estates and the Wind Down Estate’s Related Parties; and (c) the Reserve Bank; and (d)] the
its Related Parties for each of the foregoing.
1.1051.100 “Releasing Parties” means, collectively, each of the following in their
capacity as such: (a) each of the Released Parties (other than the Debtors and the Liquidating Debtors)the
Reserve Bank; (b) all holders of Claims or Interests who vote to accept the Plan; (c) all holders of Claims
or Interests that are unimpaired or deemed to accept or impaired or deemed to reject the Plan and who do
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not object to the Plan; (d) all holders of Claims or Interests that are eligible to vote to accept or reject the
Plan that either vote to reject the Plan or abstain from voting on the Plan for all Classes in which they are
eligible to vote and who do not affirmatively opt-out of the releases in accordance with the ballot to solicit
acceptances or rejections of the Plan; (e) all holders of Claims or Interests with notice and an opportunity
to opt-out of, or object to, the releases; and (f) with respect to each of the foregoing Entities and Persons
in clauses (a) – (e), all of their respective Related Parties to the maximum extent permitted by law.solely
with respect to claims that such Entities or Persons could have properly asserted on behalf of such Entities
or Person in clauses (b) – (e).
1.106 “Remittance Amounts” means, collectively all amounts on account of
(a) KServicing’s 0.65% allocation of the interest in connection with PPP Loans, (b) any PPP Loan for which
the Reserve Bank has already received pre-payment by KServicing, and (c) any Excess SALT amounts.
1.1071.101 “Reserve Bank” means the Federal Reserve Bank of San Francisco.
1.108 “Reserve Bank Claims” means, together, the Reserve Bank Secured Claims and
the Reserve Bank Priority Claims.
1.102 “Reserve Bank Claims” means, together, the claims of the Reserve Bank, as of
the Commencement Date, (x) in the aggregate principal amount of approximately $536,450,940, in respect
of outstanding PPPLF Advances under the Program Agreement, plus (y) accrued and unpaid interest and
costs and expenses including, without limitation, attorney’s fees, agent’s fees, other professional fees and
disbursements and other obligations owing under the Program Agreements, which for the avoidance of
doubt, shall include any such fees, as well as any additional fees, costs and expenses borne by or on behalf
of the Reserve Bank related to the servicing of the Pledged PPPLF Loans by a third-party servicer other
than the Debtors, which claims were Allowed under the Cash Collateral Order and amounts on account of
any adequate protection liens granted to the Reserve Bank under the Cash Collateral Order and which are
comprised of (i) the Reserve Bank Secured Claims and (ii), the Reserve Bank Priority Claims; provided,
that the aggregate amount of the Reserve Bank Claims shall be reduced by any Cash payments made to the
Reserve Bank or returned PPPLF Collateral on account of such Claims.
1.1091.103 “Reserve Bank Priority Claims” means, deficiency claims on account of
the PPPLF Advances entitled in the Reserve Bank Claims, to the extent any such claims are under-secured,
which claims are entitled to a right of priority under section 507(a)(2) of the Bankruptcy Code, if any.
1.1101.104 “Reserve Bank Secured Claims” means, any Secured Claims held by the
Reserve Bank arising and payable under and in accordance with the PPPLF DocumentsClaims, solely to
the extent permitted secured by the Bankruptcy CodePPPLF Collateral.
1.1111.105 “Reserve Bank Servicing Costs” has the meaning set forth in Section
5.3(a5.3(d) hereof.
1.1121.106 “SBA” means, the U.S. Small Business Administration.
1.1131.107 “Schedules” means, the schedules of assets and liabilities and the
statements of financial affairs filed by the Debtors under section 521 of the Bankruptcy Code, Bankruptcy
Rule 1007, and the Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and statements
have been or may be supplemented or amended from time to time.
1.1141.108 “Secured Claim” means, a Claim (a) secured by a Lien on collateral to the
extent of the value of such collateral as (i) set forth in this Plan, (ii) agreed to by the holder of such Claim
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and the Debtors, or (iii) determined by a Final Order in accordance with section 506(a) of the Bankruptcy
Code; or (b) secured by the amount of any right of setoff of the holder thereof in accordance with section
553 of the Bankruptcy Code.
1.1151.109 “Single Share” has the meaning set forth in Section 4.8(b) hereof.
1.1161.110 “Statutory Fees” means, all fees and charges assessed against the Estates
pursuant to sections 1911 through 1930 of chapter 123 of title 28 of the United States Code.
1.1171.111 “Subordinated Securities Claim” means, a Claim subject to subordination
under section 510(b) of the Bankruptcy Code.
1.1181.112 “Subsequent Condition” has the meaning set forth in Section 9.1(e)
hereof.
1.1191.113 “Tax Code” means, the Internal Revenue Code of 1986, as amended,
1.1201.114 “Unexpired Lease” means, a lease to which one or more of the Debtors is
a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
1.1211.115 “Unimpaired” means, with respect to a Claim, Interest or Class of Claims
or Interests, not “impaired” within the meaning of section 1123(a)(4) and 1124 of the Bankruptcy Code.
1.122 “Unfunded Transaction” has the meaning set forth in Section 5.3(b) hereof.
1.116 “Wind Down” means, following the Effective Date, the process to sell, abandon,
Wind Down, dissolve, liquidate or distribute any remaining assets of the Debtors’ Estates in accordance
with the Plan.
1.117 “Wind Down Agreement” means, (i) to the extent the Wind Down Estate does not
take the form of a liquidating trust, the form of agreement, substantially in the form included in the Plan
Supplement (as it may be subsequently modified from time to time), governing the person or entity charged
with overseeing the tasks outlined in Section 5.4 of this Plan, or (ii) to the extent the Wind Down Estate
takes the form of a liquidating trust, the form of liquidating trust agreement, substantially in the form
included in the Plan Supplement (as it may be subsequently modified from time to time), governing the
Wind Down Estate.
1.1231.118 “Wind Down Amount” means, an amount of cash sufficient to satisfy the
Wind Down Budget for any continued servicing of Pledged PPPLF Collateral loansLoans, CRB PPP Loans,
or CUBI CB PPP Loans, as applicable in accordance with the Plan.
1.1241.119 “Wind Down Budget” means, an amount for the purpose of effectuating
a budget for the wind down estate which will reflect the amount necessary to effectuate the Wind Down.
1.1251.120 “Wind Down Estate” means, the Debtors, or any successor thereto, by
merger, consolidation or otherwise (which may be, among other things, a corporation, limited liability
company or a liquidating trust) to Wind Down, dissolve, and liquidate the Estates or otherwise administer
or distribute the proceeds of, any remaining assets in accordance with this Plan.
1.121 “Wind Down Officer” means, the person or entity selected by the Debtors, subject
to the consent of the Reserve Bank, and in consultation with the United States Department of Justice, Small
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Business Administration, and CRB, who, (i) in the event that the Wind Down Estate does not take the form
of a liquidating trust, is charged with overseeing the tasks outlined in Section 5.4 of this Plan, or (ii) in the
event that the Wind Down Estate takes the form of a liquidating trust, the liquidating trustee. The identity
of the Wind Down Officer shall be included in a notice filed with the Bankruptcy Court prior to the
Confirmation Hearing.
B. Interpretation; Application of Definitions and Rules of Construction.
Unless otherwise specified, all section or exhibit references in the Plan are to the respective
section in, or exhibit to, the Plan, as the same may be amended, waived or modified from time to time. The
words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to the Plan as a
whole and not to any particular section, subsection or clause contained therein. The headings in the Plan
are for convenience of reference only and shall not limit or otherwise affect the provisions hereof. For
purposes herein: (1) 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; (2) 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; (3) unless otherwise specified, all references herein to “Sections” are
references to Sections hereof or hereto; (4) the rules of construction set forth in section 102 of the
Bankruptcy Code shall apply; and (5) 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. Controlling Document.
In the event of an inconsistency between the Plan and any other document, the terms of the
Plan shall control. The provisions of the Plan and of the Confirmation Order shall be construed in a manner
consistent with each other so as to effect the purposes of each; provided that, if there is determined to be
any inconsistency between any Plan provision and any provision of the Confirmation Order that cannot be
so reconciled, then, solely to the extent of such inconsistency, the provisions of the Confirmation Order
shall govern and any such provision of the Confirmation Order shall be deemed a modification of the Plan
and shall control and take precedence.
SECTION 2. ADMINISTRATIVE EXPENSE AND PRIORITY CLAIMS.
2.1. Administrative Expense Claims.
Except to the extent that a holder of an Allowed Administrative Expense Claim and the
Debtors or the Plan Administrator Wind Down Officer agree to different treatment, the Debtors (or the Plan
AdministratorWind Down Officer, as the case may be) shall pay to each holder of an Allowed
Administrative Expense Claim Cash in an amount equal to such Claim on (a) the later of (i) the Effective
Date and (ii) the first Business Day after the date that is thirty (30) calendar days after the date such
Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or as soon thereafter
as is reasonably practicable, or (b) on such other date or terms as may be mutually agreed upon between
the holder of such an Allowed Administrative Expense Claim and the Debtors or the Plan
AdministratorWind Down Officer, as applicable; provided that, Allowed Administrative Expense Claims
representing liabilities incurred in the ordinary course of business by the Debtors, as Debtors in Possession,
shall be paid by the Debtors in the ordinary course of business, consistent with past practice and in
accordance with the terms and subject to the conditions of any orders or agreements governing, instruments
evidencing, or other documents establishing, such liabilities.
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2.2. Fee Claims.
(a) All entities seeking an award by the Bankruptcy Court of Fee Claims
(i) shall file their respective final applications for allowance of compensation for services rendered and
reimbursement of expenses incurred by the date that is thirty (30) days after the Effective Date, and (ii) shall
be paid in full, in Cash, in such amounts as are Allowed by the Bankruptcy Court or authorized to be paid
in accordance with the order(s) allowing any such postpetition, estate-retained professional fee and expense
claim (A) upon the later of the Effective Date and the date upon which the order relating to any such
Allowed Fee Claim is entered or (B) upon such other terms as may be mutually agreed upon between the
holder of such an Allowed Fee Claim and the Debtors or the Plan AdministratorWind Down Officer, as
applicable. The Plan Administrator Wind Down Officer is authorized to pay compensation for services
rendered or reimbursement of expenses incurred after the Effective Date in the ordinary course and without
the need for Bankruptcy Court approval.
(b) On or about the Effective Date, holders of Fee Claims shall provide a
reasonable estimate of unpaid Fee Claims incurred in rendering services before the Effective Date to the
Debtors and the Debtors or the Plan AdministratorWind Down Officer, as applicable, shall separately
escrow such estimated amounts in the Fee Escrow Account (less any amounts already reserved for such
professional in the Fee Escrow Account) for the benefit of the holders of the Fee Claims until the fee
applications related thereto are resolved by Final Order or agreement of the parties. If a holder of a Fee
Claim does not provide an estimate, the Debtors or the Plan AdministratorWind Down Officer, as
applicable, may estimate the unpaid and unbilled reasonable and necessary fees and out-of-pocket expenses
of such holder of a Fee Claim. When all such Allowed Fee Claims have been paid in full, any remaining
amount in such escrow shall promptly be released from such escrow and revert to, and ownership thereof
shall vest in, the Wind Down Estates and the Plan Administrator Wind Down Officer without any further
action or order of the Bankruptcy Court.
(c) Funds held in the Fee Escrow Account shall not be considered property of
the Debtors’ estates or property of the Wind Down Estate, but shall revert to the Wind Down Estate only
after all Fee Claims Allowed by the Bankruptcy Court have been irrevocably paid in full. The Fee Escrow
Account shall be held in trust for estate-retained professionals and for no other parties until all Fee Claims
Allowed by the Bankruptcy Court have been paid in full.
2.3. Priority Tax Claims.
Except to the extent that a holder of an Allowed Priority Tax Claim agrees to less favorable
treatment, each holder of an Allowed Priority Tax Claim shall receive, in full and final satisfaction of such
Allowed Priority Tax Claim, at the sole option of the Debtors or the Plan AdministratorWind Down Officer,
as applicable, (a) Cash in an amount equal to such Allowed Priority Tax Claim on, or as soon thereafter as
is reasonably practicable, the later of (i) the Effective Date, to the extent such Claim is an Allowed Priority
Tax Claim on the Effective Date; (ii) the first Business Day after the date that is forty-five (45) calendar
days after the date such Priority Tax Claim becomes an Allowed Priority Tax Claim; and (iii) the date such
Allowed Priority Tax Claim is due and payable in the ordinary course as such obligation becomes due; or
(b) equal annual Cash payments in an aggregate amount equal to the amount of such Allowed Priority Tax
Claim, together with interest at the applicable rate under section 511 of the Bankruptcy Code, over a period
not exceeding five (5) years from and after the Commencement Date; provided, that the Debtors reserve
the right to prepay all or a portion of any such amounts at any time under this option without penalty or
premium.
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SECTION 3. CLASSIFICATION OF CLAIMS AND INTERESTS.
3.1. Classification in General.
A Claim or Interest is placed in a particular Class for all purposes, including voting,
confirmation, and distribution under this Plan and under sections 1122 and 1123(a)(1) of the Bankruptcy
Code; provided, that a Claim or Interest is placed in a particular Class for the purpose of receiving
distributions pursuant to this Plan only to the extent that such Claim or Interest is an Allowed Claim or
Allowed Interest in that Class and such Claim or Interest has not been satisfied, released, or otherwise
settled prior to the Effective Date.
3.2. Grouping of Debtors for Convenience Only.
This Plan groups the Debtors together solely for the purpose of describing treatment under
this Plan, confirmation of this Plan, and Plan Distributions to be made in respect of Claims against and
Interests in the Debtors under this Plan. Each Class of Claims will be deemed to contain sub-classes for
each of the Debtors, to the extent applicable for voting and distribution purposes. To the extent there are
no Allowed Claims or Interests with respect to a particular Debtor, such Class is deemed to be omitted with
respect to such Debtor. Except as otherwise provided herein, to the extent a holder has a Claim that may
be asserted against more than one Debtor, the vote of such holder in connection with such Claims shall be
counted as a vote of such Claim against each Debtor against which such holder has a Claim. Except as
provided in Section 5 of this Plan, such groupings shall not affect each Debtor’s status as a separate legal
entity, change the organizational structure of the Debtors’ business enterprise, constitute a change of control
of any Debtor for any purpose, cause a merger of consolidation of any legal entities, or cause the transfer
of any assets.
3.3. Summary of Classification.
The following table designates the Classes of Claims against, and Interests in, each of the
Debtors and specifies which of those Classes are (a) Impaired or Unimpaired by the Plan, (b) entitled to
vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code, and (c) deemed
to reject the Plan. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expense
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 this Section 3. All of the potential Classes for the Debtors are
set forth herein. Certain of the Debtors may not have holders of Claims or Interests in a particular Class or
Classes, and such Classes shall be treated as set forth in Section 3.5.
Class Designation Treatment Entitled to Vote
1 Priority Non-Tax Claims Unimpaired No (Presumed to accept)
2 Other Secured Claims Unimpaired No (Presumed to accept)
3 Reserve Bank Claims Impaired Yes
4 General Unsecured Claims Impaired Yes
5 Intercompany Claims Impaired No (Deemed to reject)
Unimpaired / No (Deemed to
6 Intercompany Interests
Impaired accept/reject)
7 Subordinated Securities Claims Impaired No (Deemed to reject)
8 KServicing Equity Interests Impaired No (Deemed to reject)
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3.4. Special Provision Governing Unimpaired Claims.
Except as otherwise provided in the Plan, nothing under the Plan shall affect the rights of
the Debtors or the Plan AdministratorWind Down Officer, as applicable, in respect of any Unimpaired
Claims, including all rights in respect of legal and equitable defenses to, or setoffs or recoupments against,
any such Unimpaired Claims.
3.5. Elimination of Vacant Classes.
Any Class of Claims or Interests that, as of the commencement of the Confirmation
Hearing, does not have at least one holder of a Claim or Interest that is Allowed in an amount greater than
zero for voting purposes shall be considered vacant, deemed eliminated from the Plan for purposes of voting
to accept or reject the Plan, and disregarded for purposes of determining whether the Plan satisfies section
1129(a)(8) of the Bankruptcy Code with respect to that Class.
3.6. Voting Classes; Presumptions
(a) Acceptance by Certain Impaired Classes. Only holders of Allowed Claims in
Classes 3 and 4 are entitled to vote to accept or reject this Plan. An Impaired Class of Claims shall have
accepted this Plan if (i) the holders of at least two-thirds (2/3) in amount of the Allowed Claims actually
voting in such Class have voted to accept this Plan and (ii) the holders of more than one-half (1/2) in number
of the Allowed Claims actually voting in such Class have voted to accept this Plan. Holders of Claims in
Classes 3 and 4 shall receive Ballots containing detailed voting instructions.
(b) Presumed Acceptance by Unimpaired Classes. Holders of Claims and Interests
in Classes 1, 2, and 6 (if so treated) are conclusively deemed to have accepted this Plan pursuant to section
1126(f) of the Bankruptcy Code. Accordingly, such holders are not entitled to vote to accept or reject this
Plan.
(c) Deemed Rejection by Certain Impaired Classes. Holders of Claims and
Interests in Classes 5, 6 (if so treated), 7, and 8 are deemed to have rejected this Plan pursuant to section
1126(g) of the Bankruptcy Code. Accordingly, such holders are not entitled to vote to accept or reject this
Plan.
If a Class contains Claims or Interests eligible to vote and no holders of Claims or Interests
eligible to vote in such Class vote to accept or reject the Plan, the Debtors shall request the Bankruptcy
Court at the Confirmation Hearing to deem the Plan accepted by the holders of such Claims or Interests in
such Class.
3.7. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy
Code
The Debtors shall seek Confirmation of this 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 this Plan in accordance with Section 12.4 hereof 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.
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3.8. No Waiver.
Nothing contained in this Plan shall be construed to waive a Debtor’s, the Plan
Administrator’sWind Down Officer’s, or other Person’s right to object on any basis to any Claim, except
as provided for in the Plan.
SECTION 4. TREATMENT OF CLAIMS AND INTERESTS.
4.1. Priority Non-Tax Claims (Class 1).
(a) Classification: Class 1 consists of Priority Non-Tax Claims against the
Debtors.
(b) Treatment: On or as soon as practicable after the Effective Date, except
to the extent that a holder of an Allowed Priority Non-Tax Claim agrees to less favorable treatment, each
holder thereof shall be paid in full in Cash or otherwise receive treatment consistent with the provisions of
section 1129(a)(9) of the Bankruptcy Code.
(c) Voting: Class 1 is Unimpaired, and holders of Priority Non-Tax Claims
are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code.
Therefore, holders of Priority Non-Tax Claims are not entitled to vote to accept or reject the Plan, and the
votes of such holders will not be solicited with respect to Priority Non-Tax Claims.
4.2. Other Secured Claims (Class 2).
(a) Classification: Class 2 consists of the Other Secured Claims against the
Debtors. To the extent that Other Secured Claims are secured by different collateral or different interests
in the same collateral, such Claims shall be treated as separate subclasses of Class 2.
(b) Treatment:
(i) Except to the extent that a holder of an Allowed Other Secured
Claim agrees to different treatment, on the later of the Effective Date and the date that is thirty (30) days
after the date such Other Secured Claim becomes an Allowed Claim, or as soon thereafter as is reasonably
practicable, each holder of an Allowed Other Secured Claim will receive, on account of such Allowed
Claim, at the sole option of the Debtors or the Plan AdministratorWind Down Officer, as applicable:
(i) Cash in an amount equal to the Allowed amount of such Claim; (ii) such other treatment sufficient to
render such holder’s Allowed Other Secured Claim Unimpaired; or (iii) return of the applicable collateral
in satisfaction of the Allowed amount of such Other Secured Claim.
(ii) Except as otherwise specifically provided herein, upon the
payment in full in Cash of an Other Secured Claim, any Lien securing an Other Secured Claim that is paid
in full, in Cash, shall be deemed released, and the holder of such Other Secured Claim shall be authorized
and directed to release any collateral or other property of the Debtors (including any Cash collateral) held
by such holder and to take such actions as may be requested by the Plan AdministratorWind Down Officer,
to evidence the release of such Lien, including the execution, delivery and filing or recording of such
releases as may be requested by the Plan AdministratorWind Down Officer.
(c) Voting: Class 2 is Unimpaired, and holders of Other Secured Claims are
conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code.
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Therefore, holders of Other Secured Claims are not entitled to vote to accept or reject the Plan, and the
votes of such holders will not be solicited with respect to such Other Secured Claims.
4.3. Reserve Bank Claims (Class 3)
(a) Classification: Class 3 consists of the Reserve Bank Claims.
(b) Allowance:
(i) The Reserve Bank
Secured Claims are Allowed pursuant to section 506(a) of the
Bankruptcy Code against the Debtors in the aggregate principal
amount of $[●] plus all accrued but unpaid interest, costs, fees,
and expenses then outstanding under the PPPLF Documents.
(ii) The Reserve Bank
Priority Claims are Allowed pursuant to section 507(a)(2) of the
Bankruptcy Code against the Debtors in the aggregate amount of
$[●].
(i) The Reserve Bank Claims are Allowed, including pursuant to the
Cash Collateral Order, against the Debtors in the aggregate
principal amount, as of the Commencement Date, of
$536,450,940 in respect of outstanding PPPLF Advances under
the Program Agreements, plus all accrued and unpaid interest and
costs and expenses including, without limitation, attorney’s fees,
agent’s fees, other professional fees and disbursements and other
obligations owing under the Program Agreements, which for the
avoidance of doubt, shall include any additional fees, costs and
expenses borne by or on behalf of the Reserve Bank related to any
transfer of servicing and any servicing of the Pledged PPPLF
Loans by a third-party servicer other than the Debtors plus
additional mitigation costs, both to the extent accrued prior to and
unpaid as of the Effective Date and to the extent accruing on and
after the Effective Date; provided, that the aggregate amount of
the Reserve Bank Claims shall be reduced by any indefeasible
Cash payments made to the Reserve Bank or returned PPPLF
Collateral on account of such Claims. The Allowed Reserve Bank
Claims comprise the Reserve Bank Secured Claims and the
Reserve Bank Priority Claims.
(ii) The portion of the Reserve Bank Claims paid from the proceeds
of the PPPLF Collateral and the Adequate Protection collateral
shall constitute the Reserve Bank Secured Clam.
(iii) If the proceeds described in the preceding clause (ii) are
insufficient to fully satisfy the Reserve Bank Claims, the
unsatisfied portion of the Reserve Bank Claims shall constitute
Reserve Bank Priority Claims.
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(iv) Without limitation, the allowance of the Reserve Bank Claims
under section 4.3(b)(i) above, including the portions constituting
the Reserve Bank Secured Claims and the Reserve Bank Priority
Claims, shall be determined and Allowed as set forth in the Plan
and Program Agreements and following the Effective Date, and,
subject to the Wind Down Officer’s fiduciary duties, shall not be
subject to estimation for any purposes effecting the Distributions
on such Claims absent the consent of the Reserve Bank to be
granted or withheld in its sole and absolute discretion,
notwithstanding anything herein to the contrary.
(c) Treatment: Except to the extent that a holder of an Allowed Reserve Bank
Claim against the Debtors agrees to a less favorable treatment of such Claim, each holder of an Allowed
Reserve Bank Claim shall receive, in full and final satisfaction, compromise, settlement, release, and
discharge in exchange for for the Allowed Reserve Bank Claims:
(i) Reserved Bank Secured Claims will receive:
(1) if the Funded
Transaction occurs and the Reserve Bank elects: (x) Post-
Effective Date PPPLF Servicing, cash proceeds of the
PPPLF Collateral or (y) PPPLF Transfer, the return of the
PPPLF Collateral; or
(2) if the Unfunded Transaction occurs (x) return of the
PPPLF Collateral.
(i) The Reserve Bank Secured Claims will receive (x) the PPPLF
Collateral; provided that, to the extent the PPPLF Collateral is
transferred to the Reserve Bank or its designee, (1) such transfer
shall only pertain to such Pledged PPPLF Loans that as of the date
of the transfer shall not have been fully forgiven or guaranty
purchase by the SBA or fully repaid by the borrower and (2) with
respect to any loan files relating to non-transferred Pledged
PPPLF Loans, the Reserve Bank shall at its option, transfer the
loan servicing files to an alternate servicer or otherwise maintain
the loan servicing files2 and/or (y) the cash proceeds of the PPPLF
Collateral, where in accordance with section 5.3 hereof
(1) servicing of the loans that constitute PPPLF Collateral shall be
transferred to a different servicer on or prior to the Effective Date,
or (2) at the Debtors’ sole discretion, the Debtors offer Post-
Effective Date PPP Servicing and the Reserve Bank consents to
such post-Effective Date PPP Servicing and pays the Reserve
Bank Servicing Costs.
2 To the extent the Reserve Bank requests the Wind Down Officer to maintain the loan servicing files for non-
transferred Pledged PPPLF Loans, any corresponding costs, fees, and expenses shall be borne by the Reserve Bank
and funded prior to the Effective Date.
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(ii) Reserve Bank Priority Claims will receive :GUC Pool Class A
Interests.
(iii) For the avoidance of doubt, (x) the Reserve Bank shall not be paid
in excess of the Reserve Bank Claims and any amounts in excess
of the Reserve Bank Claims paid to the Reserve Bank on account
of the Allowed Reserve Bank Claims shall revert to the Wind
Down Estate and (y) any Liens on the Pledged PPPLF Loans
granted to or held in favor of the Reserve Bank shall remain in
place and continue on and after the Effective Date.
(1) if the Funded
Transaction occurs: GUC Pool Class A Claims, or
(2) if the Unfunded
Transaction occurs GUC Trust Beneficial A Interests.
(d) Voting: Class 3 is Impaired, and the holders of Reserve Bank Claims are
entitled to vote to accept or reject the Plan.
4.4. General Unsecured Claims (Class 4).
(a) Classification: Class 4 consists of General Unsecured Claims against the
Debtors.
(b) Treatment: Except to the extent that a holder of an Allowed General
Unsecured Claim agrees to less favorable treatment of such Claim, each holder of an Allowed General
Unsecured Claim will receive : its pro rata share of the GUC Pool Class B Interests.
(i) if the Funded Transaction occurs, its pro rata share of the GUC
Pool Class B Claims; or
(ii) if the Unfunded
Transaction occurs, its pro rata share of the GUC Trust Beneficial
B Interests.
(c) Voting: Class 4 is Impaired, and the holders of General Unsecured Claims
are entitled to vote to accept or reject the Plan.
4.5. Intercompany Claims (Class 5).
(a) Classification: Class 5 consists of Intercompany Claims against the
Debtors.
(b) Treatment: On or after the Effective Date, all Intercompany Claims will
either be reinstated or cancelled and released at the option of the Debtors; provided that no such distributions
shall be made on account of such Intercompany Claims on the Effective Date.
(c) Voting: Class 5 is Impaired, and the holders of Intercompany Claims are
conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
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Therefore, holders of Intercompany Claims are not entitled to vote to accept or reject this Plan, and the
votes of such holders will not be solicited with respect to such Intercompany Claims.
4.6. Intercompany Interests (Class 6).
(a) Classification: Class 6 consists of Intercompany Interests in the Debtors.
(b) Treatment: On the Effective Date, Intercompany Interests shall receive no
recovery or distribution and be reinstated solely to maintain the Debtors’ corporate structure, as necessary.
(c) Voting: Allowed Intercompany Interests are either Unimpaired, in which
case the holders of such Intercompany Interests conclusively are presumed to have accepted the Plan
pursuant to section 1126(f) of the Bankruptcy Code, or Impaired, in which case the holders of such
Intercompany Interests conclusively are presumed to have rejected the Plan pursuant to section 1126(g) of
the Bankruptcy Code. Therefore, holders of Allowed Intercompany Interests are not entitled to vote to
accept or reject this Plan, and the votes of such holders will not be solicited with respect to such Allowed
Intercompany Interests.
4.7. Subordinated Securities Claims (Class 7).
(a) Classification: Class 7 consists of Subordinated Securities Claims against
the Debtors.
(b) Treatment: Holders of Subordinated Securities Claims shall not receive
or retain any property under the Plan on account of such Subordinated Securities Claims. On the Effective
Date, all Subordinated Securities Claims shall be deemed cancelled without further action by or order of
the Bankruptcy Court, and shall be of no further force and effect, whether surrendered for cancellation or
otherwise.
(c) Voting: Class 7 is Impaired, and the holders of Subordinated Securities
Claims are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy
Code. Therefore, holders of Subordinated Securities Claims are not entitled to vote to accept or reject this
Plan, and the votes of such holders will not be solicited with respect to such Subordinated Securities Claims.
4.8. KServicing Equity Interests (Class 8).
(a) Classification: Class 8 consists of KServicing Equity Interests.
(b) Treatment: Except to the extent that a holder of KServicing Equity
Interests agrees to less favorable treatment, in full and final satisfaction and release of, and in exchange for
KServicing Equity Interests, each such holder thereof shall receive the following treatment: (i) on the
Effective Date, all KServicing Equity Interests shall be cancelled and one share of KServicing common
stock (the “Single Share”) shall be issued to the Plan Administrator Wind Down Officer to hold in trust as
custodian for the benefit of the former holders of KServicing Equity Interests consistent with their former
relative priority and economic entitlements and the Single Share shall be recorded on the books and records
maintained by the Plan AdministratorWind Down Officer; (ii) each former holder of KServicing Stock
(through their interest in the Single Share, as applicable) shall neither receive nor retain any property of the
Estate or direct interest in property of the Estate on account of such KServicing Stock; provided, that in the
event that all Allowed Claims have been satisfied in full in accordance with the Bankruptcy Code and the
Plan, each former holder of a KServicing Existing Equity Interests may receive its share of any remaining
assets of KServicing consistent with such holder’s rights of payment existing immediately prior to the
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Commencement Date. Unless otherwise determined by the Plan AdministratorWind Down Officer, on the
date that KServicing’s Chapter 11 Case is closed in accordance with Section 5.14 of the Plan, the Single
Share issued on the Effective Date shall be deemed cancelled and of no further force and effect; provided
that (i) such cancellation does not adversely impact the Debtors’ Estates; and (ii) the continuing rights of
former holders of KServicing Stock (including through their interest in Single Share or otherwise) shall be
nontransferable except (A) by operation of law or (B) for administrative transfers where the ultimate
beneficiary has not changed, subject to the Plan Administrator’s Wind Down Officer’s consent.
(c) Voting: Class 8 is Impaired, and the holders of KServicing Equity Interests
are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
Therefore, holders of KServicing Equity Interests are not entitled to vote to accept or reject this Plan, and
the votes of such holders will not be solicited with respect to such KServicing Equity Interests.
SECTION 5. MEANS FOR IMPLEMENTATION.
5.1. No Substantive Consolidation
This Plan is being proposed as a joint chapter 11 plan of the Debtors for administrative
purposes only and constitutes a separate chapter 11 plan for each Debtor. This Plan is not premised upon
the substantive consolidation of the Debtors with respect to the Classes of Claims of Interests set forth in
this Plan.
5.2. Sources of Consideration for Plan Distribution.
The Debtors and the Plan AdministratorWind Down Officer, as applicable, shall fund
Distributions under this Plan with the Net Cash Proceeds. In the event of a Funded Transaction, the Debtors
and the Plan Administrator shall fund Distributions under this Plan also with proceeds from Estate Causes
of Action. In the event of an Unfunded Transaction, the GUC Trust shall fund Distributions to holders of
Allowed General Unsecured Claims , the proceeds from the sale of any or all Legacy Loans, proceeds from
the sale of any or all KS Direct PPP Loans, and any other non-Cash assets of the Debtors that may become
Cash, including proceeds from the Estate Causes of Action. In addition to the foregoing, the Allowed
Reserve Bank Claims shall also be paid from proceeds of the GUC Trust AssetsPPPLF Collateral.
5.3. Toggle Implementation.
(a) In the event where (y) the Reserve Bank remits to the Debtors on a regular
basis, 100% of the Remittance Amounts for the duration of the Chapter 11 Cases and Wind Down, and (z)
the CUBI Receivable is recovered (with no more than a [●]% discount to the full CUBI Receivable) (the
“Funded Transaction”), then:
(i)(a) KServicing shall continue to service all Pledged PPPLF Collateral
loansLoans, all CRB PPP Loans, and all CUBI CB PPP Loans in the ordinary course and in accordance
with the PPPLF documentsProgram Agreements, CRB Agreements and CUBI CB Agreements (including
the Settlement and Release Agreement, dated October 27, 2022, by and among KServicing and CB),
respectively, until the earlier of (1) [●], and (2) the PPPLF Servicer Transfer Date for the PPPLF Collateral
loans, the CRB Servicer Transfer Date for the CRB PPP Loans, and the CUBI Servicer Transfer Date for
the CUBI PPP Loans; andEffective Date.
(b) KServicing shall (i) use commercially reasonable efforts to assist the
Reserve Bank and/or Partner Banks to transfer servicing obligations to a third-party loan servicer prior to
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the Effective Date (the “PPP Transfer”), or (ii) at its sole discretion, offer the Reserve Bank, CRB, and/or
CB, continued servicing through a date to certain (“Post-Effective Date PPP Servicing”).
(c) PPP Transfer. Prior to the Effective Date, KServicing shall use
commercially reasonable efforts to assist:
(ii) By [●], 2022:
(1)(i) The Reserve Bank shall elect in writing to the Debtors to either (w) fund
the Wind Down Estate with $[●] (the “Reserve Bank Servicing Costs”), which amount shall be allocated
in the Wind Down Budget to allow for the continued servicing of PPPLF Collateral loans through a date to
be mutually agreed (“Post-Effective Date PPPLF Servicing”), after which the Reserve Bank shall have
no further obligation to fund the Wind Down Estate; provided, that, the foregoing shall not affect the
Reserve Bank remitting to the Debtors on a regular basis, 100% of the Remittance Amounts, or (x) take all
steps necessary to transfer all of the Reserve Bank with transfer the Debtors’ servicing obligations with
respect to the Pledged PPPLF Collateral loans Loans to a third-party loan servicer (the “PPPLF Transfer”),
to be selected with the Reserve Bank’s consent and direction by a date to be mutually agreed (the completion
date of such transfer, the “PPPLF Servicer Transfer Date”)but no later than the Effective Date of the
Plan; provided that, for the avoidance of doubt, any fees associated with any transfer of servicing obligations
shall be borne by the Reserve Bank; and , costs, and expenses associated with any transfer of servicing
obligations shall be borne upfront by the Reserve Bank, provided that any such fees, as well as any
additional fees, costs and expenses borne by or on behalf of the Reserve Bank related to the servicing of
the Pledged PPPLF Loans by a third-party servicer other than the Debtors shall constitute a portion of and
be included in the Reserve Bank Claims. For the avoidance of doubt, with respect to the Reserve Bank,
unless otherwise agreed by the Reserve Bank, such servicing transfer shall only pertain to such Pledged
PPPLF Loans that, as of the date of the transfer, shall not have been fully forgiven or guaranty purchase by
the SBA or fully repaid by the borrower; provided, that with respect to any loan files relating to non-
transferred Pledged PPPLF Loans, the Reserve Bank shall at its option, transfer the loan servicing files to
an alternate servicer or otherwise maintain the loan servicing files;3
(2)(ii) CRB shall elect in writing to the Debtors to either (w) fund the Wind
Down Estate with $[●] (the “CRB Servicing Costs”), which amount shall be allocated in the Wind Down
Budget to allow for the continued servicing of CRB PPP Loans through a date to be mutually agreed, or
(x) take all steps necessary to transfer all of CRB with transfer of all the Debtors’ servicing obligations
with respect to the CRB PPP Loans to a third-party loan servicer to be selected with CRB’s consent and
direction by a date to be mutually agreed but no later than the Effective Date of the Plan; provided that, for
the avoidance of doubt, any fees , costs, and expenses associated with any transfer of servicing obligations
shall be borne by CRB (the completion date of such transfer, the “CRB Servicer Transfer Date”).;
(3)(iii) CUBI shall elect in writing to the Debtors to either (w) fund the Wind
Down Estate with $[●] (the “CUBI Servicing Costs”), which amount shall be allocated in the Wind Down
Budget to allow for the continued servicing of CUBI PPP Loans through a date to be mutually agreed, or
(x) take all steps necessary to transfer all of CB with transfer of all the Debtors’ servicing obligations with
respect to the CUBI CB PPP Loans to a third-party loan servicer to be selected with CUBI’s CB’s consent
and direction by a date to be mutually agreed but no later than the Effective Date of the Plan; provided that,
for the avoidance of doubt, any fees , costs, and expenses associated with any the transfer of any servicing
3 To the extent the Reserve Bank requests the Wind Down Officer to maintain the loan servicing files for non-
transferred Pledged PPPLF Loans, any corresponding costs, fees, and expenses shall be borne by the Reserve Bank
and funded prior to the Effective Date.
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obligations shall be borne by CUBI (the completion date of such transfer, the “CUBI Servicer Transfer
Date”).CB;
(iv) On and after the Effective Date, subject to 5.3(h) hereof, the
Debtors shall not retain any PPP Loan servicing-related obligations.
(d) Post-Effective Date PPP Servicing. Prior to the Effective Date, if, in its
sole discretion, the Debtors offer Post-Effective Date PPP Servicing:
(i) if the Reserve Bank consents to such continued servicing, the
Reserve Bank shall provide the Wind Down Estate with amounts necessary to allow for the continued
servicing of Pledged PPPLF Loans (“Reserve Bank Servicing Costs”), after which the Reserve Bank shall
have no further obligation to provide any amounts to the Wind Down Estate; provided that, for the
avoidance of doubt, to the extent the Reserve Bank Servicing Costs are not provided to the Debtors prior
to the Effective Date, the Debtors shall not provide any post-Effective Date servicing for the Reserve Bank;
provided further that any Reserve Bank Servicing Costs shall constitute a portion of and be included in the
Reserve Bank Claims;
(ii) CRB shall fund the Wind Down Estate with amounts necessary to
allow for the continued servicing of CRB PPP Loans (“CRB Servicing Costs”); provided that, for the
avoidance of doubt, to the extent the CRB Servicing Costs are not provided to the Debtors prior to the
Effective Date, the Debtors shall not provide any post-Effective Date servicing for CRB;
(iii) CB shall fund the Wind Down Estate with amounts necessary to
allow for the continued servicing of CB PPP Loans (“CB Servicing Costs”), after which CB shall have no
further obligation to fund the Wind Down Estate; provided that, for the avoidance of doubt, to the extent
the CB Servicing Costs are not provided to the Debtors prior to the Effective Date, the Debtors shall not
provide any post-Effective Date servicing for CB;
(iii)(e) On the Effective Date, the GUC Pool shall be funded in the
aggregate amount of no less than the GUC Pool Amount; for the avoidance of doubt, the Plan Administrator
Wind Down Officer shall be responsible for making Distributions to holders of Allowed General Unsecured
Claims.
(iv)(f) On the Effective Date, the Wind Down Estate shall be funded in
accordance with the Wind Down Budget for (w) the (i) Wind Down process and (x) any continued servicing
of PPPLF Collateral loans, CRB PPP Loans, or CUBI PPP Loansii) any Post-Effective Date PPP Servicing,
as applicable, and be funded with the Wind Down Amount; provided that any amounts on account of
continued servicing of Pledged PPPLF Collateral loansLoans, CRB PPP Loans, or CUBI CB PPP Loans,
as applicable, shall be funded by the payment of applicable Post-Effective Date Servicing Costs.
(v)(g) On the Effective Date, any remaining assets and any Estate Causes
of Action of the Debtors’ Estates shall transfer to the Wind Down Estate automatically and without further
action of the Bankruptcy Court.
(h) On or before the Effective Date, KServicing shall transfer its servicing
obligations with respect to KS Direct PPP Loans to a third party servicer or effectuate a sale of the KS
Direct PPP Loans whereby they may consummate all transactions as are necessary to consummate a sale
of the KS Direct PPP Loans, including engaging in a marketing and sale process to identify a purchaser and
begin negotiations and implementation of such sale; provided, that, if the Debtors, in their sole discretion
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provide Post-Effective Date PPP Servicing, KServicing may continue servicing its obligations with respect
to KS Direct PPP Loans.
(i) On or after the Effective Date, the Debtors or the Wind Down Estate, as
applicable, may effectuate a Legacy Loan Sale, subject to consultation with the Reserve Bank; provided,
that, if the Wind Down Estate, in its sole discretion provides Post-Effective Date PPP Servicing, KServicing
may continue servicing its obligations with respect to the Legacy Loans. The Debtors or the Wind Down
Estate, as applicable, shall consummate all other transactions as are necessary to consummate the Legacy
Loan Sale. To commence the Legacy Loan Sale, on or prior to the Effective Date, the Debtors or the Wind
Down Estate, as applicable, may engage in a marketing and sale process to identify a purchaser and begin
negotiation and implementation of the Legacy Loan Sale, subject to consultation with the Reserve Bank.
(vi)(j) At the conclusion of the Wind Down: (w (i) any residual amounts
remaining in the Wind Down Budget (other than amounts on account of Post-Effective Date Servicing
Costs) shall be transferred to the GUC Pool, and (xfor the avoidance of doubt, shall first be used to make
distributions to holders of GUC Pool Class A Interests, unless the Reserve Bank Claims have been
indefeasibly paid in full as of such date and (ii) any residual amounts remaining on account of Post-Effective
Date Servicing Costs, shall be distributed pro rata to the Reserve Bank, CRB, and CUBICB, as applicable
and proportionate to each party’s Post-Effective Date Servicing Costs.
(b) In the event where (i) the Reserve Bank does not remit to the Debtors on
a regular basis, 100% of the Remittance Amounts for the duration of the Chapter 11 Cases, and (ii) the
CUBI Receivable is (a) not recovered or (b) recovered but with more than a [●]% discount to the full CUBI
Receivable (the “Unfunded Transaction”), then:
(i) No later than [●] days from the Petition Date, the Debtors shall
file a motion to reject the (a) CUBI Agreements, and (b) CRB Agreements; provided, that, the Debtors shall
make commercially reasonable efforts to assist CUBI (with respect to the CUBI PPP Loans) and CRB (with
respect to the CRB PPP Loans) with the transfer of all of the Debtors’ servicing obligations to a third-party
loan servicer prior to the effective date or rejection of the CUBI Agreements or the CRB Agreements, as
applicable; provided further that, for the avoidance of doubt, any fees associated with any transfer of
servicing obligations shall be borne by CUBI or CRB, as applicable.
(ii) The Debtors shall make commercially reasonable efforts to assist
the Reserve Bank with the transfer of all of the Debtors’ servicing obligations with respect to the PPPLF
Loans to a third-party loan servicer prior to the Effective Date; provided further that, for avoidance of doubt,
any fees associated with any transfer of servicing obligations shall be borne by the Reserve Bank, as
applicable.
(iii) On the Effective Date, the Wind Down Estate shall have Wind
Down Budget for the Wind Down process. At the conclusion of the Wind Down, any residual amounts
remaining in the Wind Down Budget shall be transferred to the GUC Trust.
(iv) On the Effective Date, any remaining assets (other than amounts
on account of the Wind Down Budget) and any Estate Causes of Action of the Debtors’ Estates shall transfer
to the GUC Trust automatically and without further action of the Bankruptcy Court. The GUC Trustee
shall be responsible for making Distributions to holders of Allowed General Unsecured Claims.
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5.4. Plan Administrator.
5.4. Wind Down Officer.
(a) Appointment. The Plan Administrator’s Appointment. The Wind Down
Officer’s retention shall commence on the Effective Date and shall continue until: (i) the Bankruptcy Court
enters an order closing the Chapter 11 Cases; (ii) the Bankruptcy Court enters an order removing the Plan
Administrator Wind Down Officer for cause (as defined below); or (iii) the Plan Administrator Wind Down
Officer voluntarily resigns, upon notice filed with the Bankruptcy Court, and a successor Plan
Administrator Wind Down Officer is appointed in accordance with the Plan.
(b) Certain Consent Rights. The Reserve Bank shall have approval rights and
the United States Department of Justice, SBA, and CRB shall have consultation rights over certain material
decisions by the Wind Down Officer including, but not limited to, prosecution of Causes of Action on
behalf of the Wind Down Estates, proposed reserves and budgets for the Wind Down Estates, proposed
distributions by the Wind Down Officer and settlements above a certain threshold amount, all as set forth
in the Wind Down Agreement.
(b)(c) Authority. Subject to Section 5.4(c) of this Plan, the Plan Administrator
Wind Down Officer shall have the authority and right on behalf of each of the Debtors, without the need
for Bankruptcy Court approval (unless otherwise indicated), subject to the Wind Down Officer’s fiduciary
duties, and subject to any consent or consultation rights of the Reserve Bank, United States Department of
Justice, Small Business Administration, and CRB, as set forth in the Wind Down Agreement, to carry out
and implement all provisions of the Plan, including, without limitation, to:
(i) subject to Section 7 of the Plan, except to the extent Claims have
been previously Allowed or in the event of the Unfunded Transaction solely with respect to General
Unsecured Claims, control and effectuate the Claims reconciliation process in accordance with the terms
of this Plan, including to object to, seek to subordinate, compromise or settle any and all Claims against the
Debtors;
(ii) make Distributions to holders of Allowed Claims (other than
General Unsecured Claims in the event of an Unfunded Transaction) in accordance with this Plan;
(iii) exercise its reasonable business judgment to direct and control the
Wind Down under the Plan and in accordance with applicable law as necessary to maximize Distributions
to holders of Allowed Claims;
(iv) prepare, file, and prosecute any necessary filings or pleadings with
the Bankruptcy Court to carry out the duties of the Plan Administrator Wind Down Officer as described
herein;
(v) in the event of a Funded Transaction, other than any Causes of
Action released by the Debtors pursuant to the Plan or otherwise, prosecute all Causes of Action on behalf
of the Debtors, elect not to pursue any Causes of Action, and determine whether and when to compromise,
settle, abandon, dismiss, or otherwise dispose of any such Causes of Action, as the Plan Administrator Wind
Down Officer may determine is in the best interests of the Debtors and their Estates;
(vi) retain professionals to assist in performing its duties under the
Plan;
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(vii) maintain the books and records and accounts of the Debtors;
(viii) incur and pay reasonable and necessary expenses in connection
with the performance of duties under this Plan, including the reasonable fees and expenses of professionals
retained by the Plan AdministratorWind Down Officer;
(ix) administer each Debtor’s tax obligations, including (i) filing tax
returns and paying tax obligations, (ii) requesting, if necessary, an expedited determination of any unpaid
tax liability of each Debtor or its estate under Bankruptcy Code section 505(b) for all taxable periods of
such Debtor ending after the Commencement Date through the liquidation of such Debtor as determined
under applicable tax laws, and (iii) representing the interest and account of each Debtor or its estate before
any taxing authority in all matters including, without limitation, any action, suit, proceeding or audit;
(x) prepare and file any and all informational returns, reports,
statements, returns or disclosures relating to the Debtors that are required hereunder, by any Governmental
Unit or applicable law;
(xi) pay statutory fees in accordance with Section 12.1 of the Plan;
(xii) perform other duties and functions that are consistent with the
implementation of the Plan; and
(xiii) close the Chapter 11 Cases.
(c)(d) Boards of Directors and Officers.
(i) The Upon the Effective Date, (i) the officers
and directors of the Debtors existing prior to the Effective Date shall be relieved of any and all duties with
the respect to the Debtors as of the Effective Date. and shall be deemed to have resigned without the
requirement of having to take any further action and (ii) the Wind Down Officer shall be the sole officer,
director or manager, as applicable, of each of the Debtors without the requirement of having to take any
further action.
(ii) Upon the Effective Date, the New Board shall consist of one or
more directors selected by the Debtors, which shall be announced by notice filed with the Bankruptcy Court
prior to the Confirmation Hearing.
(iii) Upon the Effective Date, the new governance structure of
KServicing will be set forth in the Amended Organizational Documents.
(iv) The New Board shall, among other things, oversee and direct the
Plan Administrator and the administration of the Wind Down Estates in accordance with the Plan. On the
Effective Date, or as soon as is reasonably practicable thereafter, the New Board shall establish, in
consultation with the Plan Administrator, such procedures and protocols as it deems necessary to carry out
its duties.
(d)(e) Wind Down. After the Effective Date, pursuant to the Plan, the Plan
Administrator Wind Down Officer shall effectuate the Wind Down according to the Wind Down Budget
without any further approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code
or Bankruptcy Rules, provided, that, the Wind Down Officer shall not effectuate the Wind Down in a
manner inconsistent with any express requirements of the Wind Down Agreement, including with respect
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to any consent or consultation rights of the Reserve Bank, United States Department of Justice, Small
Business Administration, and CRB. The Wind Down (as determined for federal income tax purposes) shall
occur in an expeditious but orderly manner after the Effective Date.
(e)(f) Indemnification. Each of the Wind Down Estates shall indemnify and hold
harmless the New Board and the Plan Administrator Wind Down Officer solely in their capacities as such
for any losses incurred in such capacity, except to the extent such losses were the result of the Plan
Administrator’s or the New Board’s Wind Down Officer’s bad faith, gross negligence, willful misconduct
or criminal conduct.
(f)(g) Dissolution. After the Effective Date, the Plan Administrator Wind Down
Officer shall, subject to applicable non-bankruptcy law and consistent with the implementation of this Plan,
merge, dissolve, liquidate, or take such other similar action with respect to each Debtor (including the
cancellation of all Interests in a Wind Down Estate) and complete the winding up of such Wind Down
Estate as expeditiously as practicable without the necessity for any other or further actions to be taken by
or on behalf of such Wind Down Estate or its shareholders or members, as applicable, or any payments to
be made in connection therewith subject to the filing of a certificate of dissolution with the appropriate
Governmental Unit; provided, however, that the foregoing does not limit the Plan Administrator’s Wind
Down Officer’s ability to otherwise abandon an Interest in a Wind Down Estate. The Plan Administrator
Wind Down Officer may, to the extent required by applicable non-bankruptcy law, maintain a Wind Down
Estate as a corporate entity in good standing until such time as such Wind Down Estate is dissolved or
merged out of existence in accordance with the Plan.
5.5. GUC Trust.
(a) In the event of an Unfunded Transaction, on the Effective Date the GUC
Trust shall be established. In accordance with Section 1141 of the Bankruptcy Code, all of the GUC Trust
Assets, as well as the rights and powers of the Debtors’ Estates applicable to the GUC Trust Assets, shall
vest in the GUC Trust, for the benefit of the GUC Trust Beneficiaries. The GUC Trustee shall determine
whether to enforce, settle, release, or compromise the GUC Trust Causes of Action (or decline to do any of
the foregoing). The Plan Administrator shall not be subject to any claims or counterclaims with respect to
the GUC Trust Causes of Action, or otherwise. In the event of any conflict between the terms of the Plan
and the terms of the GUC Trust Agreement, the terms of the Plan shall govern.
(b) The GUC Trustee shall be the exclusive administrator of the GUC Trust
Assets for purposes of 31 U.S.C. § 3713(b) and 26 U.S.C. § 6012(b)(3), as well as a representative of the
Estate of each of the Debtors appointed pursuant to section 1123(b)(3)(B) of the Bankruptcy Code, solely
for purposes of carrying out the GUC Trustee’s duties under the GUC Trust Agreement. The GUC Trust
shall be governed by the GUC Trust Agreement and administered by the GUC Trustee. The powers, rights,
and responsibilities of the GUC Trustee shall be specified in the GUC Trust Agreement and shall include
the authority and responsibility to, among other things, take the actions set forth in this Section 5.5. The
GUC Trustee shall hold and distribute the GUC Trust Assets in accordance with the provisions of the Plan
and the GUC Trust Agreement. Other rights and duties of the GUC Trustee shall be as set forth in the GUC
Trust Agreement. After the Effective Date, the Debtors and the Plan Administrator shall have no interest in
the GUC Trust Assets except as set forth in the GUC Trust Agreement.
(c) The GUC Trustee and the GUC Trust shall be discharged or dissolved, as
the case may be, at such time as (i) the GUC Trustee determines that the pursuit of additional GUC Trust
Causes of Action is not likely to yield sufficient additional proceeds to justify further pursuit of such claims
and (ii) all Plan Distributions required to be made by the GUC Trustee under the Plan have been made.
Upon dissolution of the GUC Trust, any remaining GUC Trust Assets shall be distributed to holders of
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Allowed General Unsecured Claims in accordance with the Plan and the GUC Trust Agreement, as
appropriate.
(d) U.S. Federal Income Tax Treatment of GUC Trust. In furtherance of
Section 5.3(b) of the Plan, (i) the GUC Trust shall be structured to qualify as a “liquidating trust” within
the meaning of Treasury Regulation section 301.7701-4(d) and in compliance with Revenue Procedure 94-
45, 1994-2 C.B. 684, and, thus, as a “grantor trust” within the meaning of sections 671 through 679 of the
Tax Code to the holders of Allowed Reserve Bank Priority Claims and Allowed General Unsecured Claims
(whether Allowed on or after the Effective Date), consistent with the terms of the Plan; (ii) the holders of
Reserve Bank Priority Claims and General Unsecured Claims shall be treated as the beneficiaries and
grantors of the GUC Trust; (iii) the sole purpose of the GUC Trust shall be the liquidation and distribution
of the GUC Trust Assets in accordance with Treasury Regulation section 301.7701-4(d), including the
resolution of General Unsecured Claims in accordance with this Plan, with no objective to continue or
engage in the conduct of a trade or business; (iv) all parties (including the Debtors and the Estates, holders
of General Unsecured Claims, the GUC Trustee, and holders of Reserve Bank Priority Claims) shall report
consistently with such treatment (including the deemed receipt of the GUC Trust Assets, subject to
applicable liabilities and obligations, by the holders of General Unsecured Claims and Reserve Bank
Priority Claims, followed by the deemed transfer of such GUC Trust Assets to the GUC Trust); (v) all
parties shall report consistently for federal income tax purposes, and otherwise, with the valuation of the
GUC Trust Assets transferred to the GUC Trust as determined by the GUC Trustee (or its designee); (vi) the
GUC Trustee shall be responsible for filing returns for the GUC Trust as a grantor trust pursuant to Treasury
Regulation section 1.671-4(a); (vii) the GUC Trustee shall annually send to each holder of an interest in the
GUC Trust a separate statement regarding the receipts and expenditures of the trust as relevant for U.S.
federal income tax purposes; (viii) all items of income, deductions, and credit loss of the GUC Trust shall
be allocated for federal income tax purposes to the holders of General Unsecured Claims and Reserve Bank
Priority Claims based on their respective interests in the GUC Trust, including the holders of General
Unsecured Claims holding Disputed Claims, in such manner as the GUC Trustee deems reasonable and
appropriate; and (ix) subject to definitive guidance from the Internal Revenue Service or a court of
competent jurisdiction to the contrary (including the receipt by the GUC Trustee of a private letter ruling if
the GUC Trustee so requests one, or the receipt of an adverse determination by the Internal Revenue Service
upon audit if not contested by the GUC Trustee), the GUC Trustee may timely elect to (x) treat any portion
of the GUC Trust allocable to Disputed Claims as a “disputed ownership fund” governed by Treasury
Regulation section 1.468B-9 (and make any appropriate elections) and (y) to the extent permitted by
applicable law, report consistently with the foregoing for state and local income tax purposes. If a “disputed
ownership fund” election is made for all or any portion of the GUC Trust, all impacted parties (including
the Debtors and the Estates, and, to the extent applicable, holders General Unsecured Claims, and the GUC
Trustee), and solely with respect to the impacted assets, shall report for United States federal, state, and
local income tax purposes consistently with such election.
(e) Expedited Determination. The GUC Trustee may request an expedited
determination of taxes of the GUC Trust under section 505(b) of the Bankruptcy Code for all returns filed
for, or on behalf of, the GUC Trust for all taxable periods through the dissolution of the GUC Trust.
(f) Notwithstanding anything to the contrary herein, in no event shall holders
of Allowed General Unsecured Claims recover more than the full amount of their Allowed General
Unsecured Claims from the GUC Trust.
5.6.5.5. Corporate Action.
Upon the Effective Date, by virtue of entry of the Confirmation Order, all actions
contemplated by this Plan (including any action to be undertaken by the Plan AdministratorWind Down
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Officer) shall be deemed authorized, approved, and, to the extent taken prior to the Effective Date, ratified
without any requirement for further action by holders of Claims or Interests, the Debtors, or any other Entity
or Person. All matters provided for in this Plan involving the corporate structure of the Debtors, and any
corporate action required by the Debtors in connection therewith, shall be deemed to have occurred and
shall be in effect as of the Effective Date, without any requirement of further action by the Debtors or the
Estates.
5.7.5.6. Withholding and Reporting Requirements.
(a) Withholding Rights. In connection with the Plan, any party issuing any
instrument or making any distribution described in the Plan shall comply with all applicable withholding
and reporting requirements imposed by any federal, state, or local taxing authority, and all distributions
pursuant to the Plan and all related agreements shall be subject to any such withholding or reporting
requirements. Any amounts withheld pursuant to the preceding sentence shall be deemed to have been
distributed to and received by the applicable recipient for all purposes of the Plan. Notwithstanding the
foregoing, each holder of an Allowed Claim or any other Person that receives a distribution pursuant to the
Plan shall have responsibility for any taxes imposed by any Governmental Unit, including, without
limitation, income, withholding, and other taxes, on account of such distribution. Any party issuing any
instrument or making any distribution pursuant to the Plan has the right, but not the obligation, to not make
a distribution until such holder has made arrangements satisfactory to such issuing or disbursing party for
payment of any such tax obligations. Additionally, in the case of a non-Cash distribution that is subject to
withholding, the distributing party has the right, but not the obligation, to withhold an appropriate portion
of such distributed property and either (i) sell such withheld property to generate Cash necessary to pay
over the withholding tax (or reimburse the distributing party for any advance payment of the withholding
tax), or (ii) pay the withholding tax using its own funds and retain such withheld property.
(b) Forms. Any party entitled to receive any property as an issuance or
distribution under the Plan shall, upon request, deliver to the Plan AdministratorWind Down Officer, Wind
Down Estates, or such other Person designated by the Plan Administrator Wind Down Officer or Wind
Down Estates (which entity shall subsequently deliver to the Plan Administrator Wind Down Officer any
applicable IRS Form W-8 or Form W-9 received) an appropriate Form W-9 or (if the payee is a foreign
Person) Form W-8, unless such Person is exempt from information reporting under the Tax Code and
provides to the Plan Administrator Wind Down Officer notice and evidence of such exemption. If such
request is made by the Plan AdministratorWind Down Officer, Wind Down Estates, or such other Person
designated by the Plan Administrator Wind Down Officer or Wind Down Estates and the holder fails to
comply within ninety (90) days after the request is made, the amount of such distribution shall irrevocably
revert to the applicable Wind Down Estate and any Claim in respect of such distribution shall be forever
barred from assertion against any Debtor, the applicable Wind Down Estate and their respective property.
Exemption From Certain Transfer Taxes.
To the maximum extent provided by section 1146(a) of the Bankruptcy Code: (i) the
issuance, distribution, transfer, or exchange of any debt, equity security, or other interest in the Debtors; or
(ii) 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 instruments 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 transfer tax, mortgage recording tax, Uniform Commercial Code filing
or recording fee, or other similar tax or governmental assessment, in each case to the extent permitted by
applicable bankruptcy law, and the appropriate state or local government officials or agents shall forego
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 or governmental assessment.
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5.8.5.7. Effectuating Documents; Further Transactions.
(a) On or as soon as practicable after the Effective Date, the Plan
Administrator Wind Down Officer shall take such actions as may be or become necessary or appropriate to
effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan,
subject to any consent or consultation rights of the Reserve Bank, United States Department of Justice,
Small Business Administration, and CRB, as set forth in the Wind Down Agreement, including (i) the
execution and delivery of appropriate agreements or other documents of merger, consolidation,
restructuring, financing, conversion, disposition, transfer, dissolution, transition services, or liquidation
containing terms that are consistent with the terms of the Plan and that satisfy the applicable requirements
of applicable law and any other terms to which the applicable Entities may determine; (ii) 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 to which the applicable parties agree; (iii) the filing of appropriate certificates or articles of
incorporation, reincorporation, merger, consolidation, conversion, or dissolution pursuant to applicable
state law; (iv) the issuance of securities, all of which shall be authorized and approved in all respects, in
each case, without further action being required under applicable law, regulation, order, or rule; (v) the
execution, delivery, or filing of contracts, instruments, releases, and other agreements to effectuate and
implement the Plan without the need for any approvals, authorizations, actions, or consents; and (vi) all
other actions that the applicable Entities determine to be necessary or appropriate.
(b) Each officer, manager, or member of the board of directors of the Debtors
is (and each officer, manager, or member of the board of directors of the Plan AdministratorWind Down
Officer, if applicable, shall be) authorized and directed to issue, execute, deliver, file, or record such
contracts, securities, instruments, releases, indentures, 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 and the securities issued pursuant to the Plan in the name of, and on behalf of, the
Wind Down Estates, all of which shall be authorized and approved in all respects, in each case, without the
need for any approvals, authorization, consents, or any further action required under applicable law,
regulation, order, or rule (including, without limitation, any action by the stockholders or directors or
managers of the Debtors, or the Wind Down Estates) except for those expressly required pursuant to the
Plan.
(c) All matters provided for herein involving the corporate structure of the
Debtors or the Wind Down Estates, to the extent applicable, or any corporate or related action required by
the Debtors or the Wind Down Estates in connection herewith shall be deemed to have occurred and shall
be in effect, without any requirement of further action by the stockholders, members, or directors or
managers of the Debtors and with like effect as though such action had been taken unanimously by the
stockholders, members, directors, managers, or officers, as applicable, of the Debtors or the Wind Down
Estates.
5.9.5.8. Preservation of Rights of Action.
Other than Causes of Action against an Entity that are waived, relinquished, exculpated,
released, compromised, transferred or settled pursuant to this Plan, the Confirmation Order, or by another
Bankruptcy Court order, the Debtors reserve any and all Causes of Action. On and after the Effective Date,
in a Funded Transaction, the Plan Administrator and in an Unfunded Transaction, the GUC Trustee, the
Wind Down Officer may pursue such Causes of Action in its sole discretionon behalf of the Wind Down
Estate with the consent and consultation of the Reserve Bank, United States Department of Justice, Small
Business Administration, and CRB, as set forth in the Wind Down Agreement. No Entity may rely on the
absence of a specific reference in this Plan or the Disclosure Statement to any Cause of Action against them
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as any indication that the Debtor or the Plan Administrator or GUC TrusteeWind Down Officer, as
applicable will not pursue any and all available Causes of Action against them. No preclusion doctrine,
including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion (judicial,
equitable, or otherwise), or laches, shall apply to such Causes of Action upon, after, or as a consequence of
the Confirmation or the Effective Date. Prior to the Effective Date, the Debtors, and on and after the
Effective Date, in a Funded Transaction, the Plan Administrator and in an Unfunded Transaction, the GUC
Trustee, the Wind Down Officer shall retain and shall have, including through its authorized agents or
representatives, the exclusive right, authority, and discretion, subject to this Plan and to the consent and
consultation rights of the Reserve Bank, United States Department of Justice, Small Business
Administration, and CRB, as set forth in the Wind Down Agreement, to determine and to initiate, file,
prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes
of Action and to decline to do any of the foregoing, as the Plan Administrator or GUC Trustee, as applicable
Wind Down Officer may determine is in the best interest of the Estates, without the consent or approval of
any third party (aside from the Reserve Bank) or further notice to or action, order, or approval of the
Bankruptcy Court. Notwithstanding anything contained herein to the contrary, the settlement of any Claims
and Causes of Action which are expressly to be settled by Confirmation of this Plan itself shall be resolved
only by Confirmation of this Plan itself.
5.10.5.9. Certificate of Incorporation and By-Laws.
As of the Effective Date, the certificate of incorporation and by-laws, or other
organizational documents, as applicable, of the Debtors shall be amended to the extent necessary to carry
out the provisions of this Plan. Such amended organizational documents (if any) shall be filed with the
Bankruptcy Court in advance of the Effective Date.
5.11.5.10. Cancellation of Existing Securities and Agreements
Except for the purpose of evidencing a right to a distribution under the Plan and except as
otherwise set forth in the Plan, all notes, instruments, other securities, and other evidence of debt issued,
and any rights of any holder in respect thereof shall be deemed cancelled, discharged, and of no force or
effect and the obligations of the Debtors thereunder shall be deemed fully satisfied, released, and
discharged.
5.12.5.11. Subordinated Claims.
The allowance, classification, and treatment of all Allowed Claims and 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 reserve the right for the Plan Administrator Wind Down Officer to seek to re-classify any Allowed
Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto.
5.13. Nonconsensual Confirmation.
The Debtors intend to undertake to have the Bankruptcy Court confirm the Plan under
section 1129(b) of the Bankruptcy Code as to any Classes that reject, or are deemed to reject, the Plan.
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5.14.5.12. Closing of Chapter 11 Cases.
After an Estate has been fully administered, the applicable Wind Down Estate or Plan
Administrator Wind Down Officer shall seek authority from the Bankruptcy Court to close the applicable
Chapter 11 Case(s) in accordance with the Bankruptcy Code and Bankruptcy Rules.
5.15.5.13. Notice of Effective Date.
As soon as practicable, but not later than three (3) Business Days following the Effective
Date, the Debtors shall file a notice of the occurrence of the Effective Date with the Bankruptcy Court.
5.16.5.14. Corporate Form
On the Effective Date, each of the Debtors shall maintain its current corporate form, which
may be modified or changed at any time after the Effective Date by the Plan Administrator Wind Down
Officer in accordance with the terms of this Plan and applicable law.
5.17.5.15. Separability.
Notwithstanding the combination of the separate plans of liquidation for the Debtors set
forth in the Plan for purposes of economy and efficiency, the Plan constitutes a separate chapter 11 plan for
each Debtor. Accordingly, if the Bankruptcy Court does not confirm the Plan with respect to one or more
Debtors, it may still, subject to the consent of the applicable Debtors, confirm the Plan with respect to any
other Debtor that satisfies the confirmation requirements of section 1129 of the Bankruptcy Code.
SECTION 6. DISTRIBUTIONS.
6.1. Distributions Generally.
Except as otherwise provided in the Plan, one or more Disbursing Agents shall make all
distributions under the Plan to the appropriate holders of Allowed Claims in accordance with the terms of
the Plan.
6.2. Distribution Record Date.
As of the close of business on the Distribution Record Date, the various transfer registers
for each of the Classes of Claims or Interests as maintained by the Debtors or their respective agents shall
be deemed closed for purposes of determining whether a holder of such a Claim or Interest is a record
holder entitled to distributions under the Plan, and there shall be no further changes in the record holders or
the permitted designees of any such Claims or Interests. The Debtors, the Plan Administrator, or the GUC
TrusteeWind Down Officer, as applicable, shall have no obligation to recognize any transfer or designation
of such Claims or Interests occurring after the close of business on the Distribution Record Date. In
addition, with respect to payment of any Cure Amounts or Assumption Disputes, neither the Debtors nor
the Disbursing Agent shall have any obligation to recognize or deal with any party other than the non-
Debtor party to the applicable executory contract or unexpired lease as of the close of business on the
Distribution Record Date, even if such non-Debtor party has sold, assigned, or otherwise transferred its
Claim for a Cure Amount.
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6.3. Date of Distributions.
(a) Except as otherwise provided in the Plan, any distributions and deliveries
to be made under the Plan shall be made on or about the Effective Date or as otherwise determined in
accordance with the Plan, including, without limitation, the treatment provisions of Section 4 of the Plan;
provided, that the Plan Administrator or the GUC Trustee, as applicable, Wind Down Officer shall from
time to time determine subsequent distribution dates to the extent they determine them to be appropriate.
(b) In the event of the Funded Transaction (i) prior to any distributions to the
GUC Pool, the Plan AdministratorReserve Bank or holders of General Unsecured Claims, the Wind Down
Officer, shall reserve an amount sufficient to pay holders of Disputed Administrative Expense Claims,
Disputed Secured Claims, Disputed Priority Non-Tax Claims, and Disputed Priority Tax Claims, and (ii)
prior to any distributions by the Plan Administrator Wind Down Officer to the holders of General Unsecured
Claims, the Plan Administrator shall Wind Down Officer shall (x) make distributions to the Reserve Bank
on the Allowed Reserve Bank Priority Claim and, (y) reserve an amount sufficient to pay holders of any
Disputed General Unsecured Claims, in each case, the amount such holders would be entitled to receive
under the Plan if such Claims were to become Allowed Claims. After the resolution of a Disputed
Administrative Expense Claim, Disputed Secured Claim, Disputed Priority Non-Tax Claim, and Disputed
Priority Tax Claims, the Plan Administrator Wind Down Officer shall treat any amounts that were reserved
on account of such Disputed Claim that is Disallowed or does not become an Allowed Claim as Net Cash
Proceeds.
(c) In the event of the Unfunded Transaction, Section 6.3(b) above shall not
apply to Plan Distributions to holders of Allowed General Unsecured Claims, which will be governed by
Section 5.5(a) and the GUC Trust Agreement.
6.4. Disbursing Agent.
Other than as contemplated in Section 6.2 of the Plan, all distributions under this Plan shall
be made by the Disbursing Agent on and after the Effective Date as provided herein. The Disbursing Agent
shall not be required to give any bond or surety or other security for the performance of its duties. The Plan
Administrator Wind Down Officer shall use all commercially reasonable efforts to provide the Disbursing
Agent with the amounts of Claims and the identities and addresses of holders of Claims, in each case, as
set forth in the books and records of the Debtors or the Wind Down Estates, as applicable. The Plan
Administrator Wind Down Officer shall cooperate in good faith with the applicable Disbursing Agent to
comply with the reporting and withholding requirements outlined in Section 5.7 of the Plan.
6.5. Rights and Powers of Disbursing Agent.
(a) From and after the Effective Date, the Disbursing Agent, solely in its
capacity as Disbursing Agent, shall be exculpated by all Entities, including, without limitation, holders of
Claims against, and Interests in, the Debtors and other parties in interest, from any and all Claims, Causes
of Action, and other assertions of liability arising out of the discharge of the powers and duties conferred
upon such Disbursing Agent by the Plan or any order of the Bankruptcy Court entered pursuant to or in
furtherance of the Plan, or applicable law, except for actions or omissions to act arising out of the gross
negligence or willful misconduct, fraud, malpractice, criminal conduct, or ultra vires acts of such
Disbursing Agent. No holder of a Claim or Interest, or other party in interest, shall have or pursue any
claim or Cause of Action against the Disbursing Agent, solely in its capacity as Disbursing Agent, for
making distributions in accordance with the Plan or for implementing provisions of the Plan, except for
actions or omissions to act arising out of the gross negligence or willful misconduct, fraud, malpractice,
criminal conduct, or ultra vires acts of such Disbursing Agent.
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(b) The Disbursing Agent shall be empowered to (i) effect all actions and
execute all agreements, instruments, and other documents necessary to perform its duties hereunder;
(ii) make all distributions contemplated hereby; and (iii) exercise such other powers as may be vested in
the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan or GUC Trust Agreement, as
applicable, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions
hereof.
6.6. Expenses of Disbursing Agent.
Except as otherwise ordered by the Bankruptcy Court, any reasonable and documented fees
and expenses incurred by the Disbursing Agent acting in such capacity (including reasonable documented
attorneys’ fees and expenses) on or after the Effective Date shall be paid in Cash. This Section 6.6 shall
not apply to post-Effective Date expenses of the GUC Trustee, which shall be governed by Section 5.5(a)
hereof and the GUC Trust Agreement.
6.7. No Postpetition Interest on Claims.
Except as otherwise provided in the Plan, the Confirmation Order, or another order of the
Bankruptcy Court, or required by the Program Agreements in the case of the Reserve Bank and only to the
extent the Reserve Bank Claims are oversecured, or the Bankruptcy Code (including postpetition interest
in accordance with sections 506(b) and 726(a)(5) of the Bankruptcy Code), interest shall not accrue or be
paid on any Claims on or after the Commencement Date; provided, that if interest is payable pursuant to
the preceding sentence, interest shall accrue at the federal judgment rate pursuant to 28 U.S.C. § 1961 on a
non-compounded basis from the date the obligation underlying the Claim becomes due and is not timely
paid through the date of payment.
6.8. Delivery of Distributions.
Subject to Bankruptcy Rule 9010, all distributions to any holder or permitted designee, as
applicable, of an Allowed Claim or Interest shall be made to a Disbursing Agent, who shall transmit such
distribution to the applicable holders or permitted designees of Allowed Claims or Interests on behalf of
the Debtors. In the event that any distribution to any holder or permitted designee is returned as
undeliverable, no further distributions shall be made to such holder or such permitted designee unless and
until such Disbursing Agent is notified in writing of such holder’s or permitted designee’s, as applicable,
then-current address, at which time all currently-due, missed distributions shall be made to such holder as
soon as reasonably practicable thereafter without interest. Nothing herein shall require the Disbursing
Agent to attempt to locate holders or permitted designees, as applicable, of undeliverable distributions and,
if located, assist such holders or permitted designees, as applicable, in complying with Section 5.7 of the
Plan.
6.9. Distributions after Effective Date.
Distributions made after the Effective Date to holders of Disputed Claims that are not
Allowed Claims as of the Effective Date, but which later become Allowed Claims, shall be deemed to have
been made on the Effective Date.
6.10. Unclaimed Property.
Undeliverable distributions or unclaimed distributions shall remain in the possession of the
Debtors, or Wind Down Estate, or GUC Trust, as applicable, until such time as a distribution becomes
deliverable or the holder accepts the distribution, or such distribution reverts back to the Debtors, or Wind
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Down Estate, or GUC Trust, as applicable, and shall not be supplemented with any interest, dividends, or
other accruals of any kind. Such distributions shall be deemed unclaimed property under section 347(b) of
the Bankruptcy Code at the expiration of ninety (90) days from the date of distribution. After such date all
unclaimed property or interest in property shall revert to the Wind Down Estates and the Claim of any other
holder to such property or interest in property shall be discharged and forever barred.
6.11. Time Bar to Cash Payments.
Checks issued by the Disbursing Agent in respect of Allowed Claims shall be null and void
if not negotiated within one hundred and twenty (120) days after the date of issuance thereof. Thereafter,
the amount represented by such voided check shall irrevocably revert to the Wind Down Estates, and any
Claim in respect of such voided check shall be discharged and forever barred, notwithstanding any federal
or state escheat laws to the contrary. Requests for re-issuance of any check shall be made to the Disbursing
Agent by the holder of the Allowed Claim to whom such check was originally issued.
6.12. Manner of Payment under Plan.
Except as otherwise specifically provided in the Plan, at the option of the Debtors, Plan
Administrator, or GUC Trustee or Wind Down Officer, as applicable, any Cash payment to be made
hereunder may be made by a check or wire transfer, or ACH transfer, or as otherwise required or provided
in applicable agreements or customary practices of the Debtors.
6.13. Satisfaction of Claims.
Except as otherwise specifically provided for in the Plan and to the extent permitted by
law, any distributions and deliveries to be made on account of Allowed Claims under the Plan shall be in
complete and final satisfaction of, and exchange for, such Allowed Claims.
6.14. Minimum Cash Distributions.
The Disbursing Agent shall not be required to make any distribution of Cash less than One
Hundred Dollars ($100) to any holder of an Allowed Claim; provided, that if any distribution is not made
pursuant to this Section 6.14, such distribution shall be added to any subsequent distribution to be made on
behalf of the holder’s Allowed Claim; provided further that, solely with respect to distributions on account
of the Reserve Bank Claims, the Disbursing Agent shall seek prior consent of the Reserve Bank.
6.15. Setoffs and Recoupments.
The Debtors, or Wind Down Estates, or GUC Trust, as applicable, or such entity’s
designee (including, without limitation, the Disbursing Agent) may, but shall not be required to, set off or
recoup against any Claim, and any distribution to be made on account of such Claim, any and all claims,
rights, and Causes of Action of any nature whatsoever that the Debtors, or Wind Down Estates, or GUC
Trust, as applicable, may have against the holder of such Claim pursuant to the Bankruptcy Code or
applicable non-bankruptcy law; provided, that neither the failure to do so nor the allowance of any Claim
hereunder shall constitute a waiver or release by a Debtor or its successor of any claims, rights, or Causes
of Action that a Debtor or its successor or assign may possess against the holder of such Claim.
6.16. Allocation of Distributions between Principal and Interest.
Except with respect to the Reserve Bank, and except as otherwise required by law (as
reasonably determined by the Wind Down Estates or GUC Trustee, as applicable), distributions with respect
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to an Allowed Claim shall be allocated first to the principal portion of such Allowed Claim (as determined
for U.S. federal income tax purposes) and, thereafter, to the remaining portion of such Allowed Claim, if
any.
6.17. No Distribution in Excess of Amount of Allowed Claim.
Except as provided in Section 6.7 of the Plan, no holder of an Allowed Claim shall receive,
on account of such Allowed Claim, distributions in excess of the Allowed amount of such Claim.
SECTION 7. PROCEDURES FOR DISPUTED CLAIMS.
7.1. Objections to Claims.
(a) The Debtors or the Plan Administrator Wind Down Officer on behalf of
each of the Wind Down Estates shall exclusively be entitled to object to Claims. After the Effective Date,
the Plan Administrator Wind Down Officer shall have and retain any and all rights and defenses that the
Debtors had with regard to any Claim to which they may object, except with respect to any Claim that is
Allowed. Any objections to proofs of Claim shall be served and filed on or before the later of (a) one
hundred eighty (180) days after the Effective Date, and (b) on such later date as ordered by the Bankruptcy
Court for cause.
(b) In the event of the Unfunded Transaction on and after the Effective Date, the GUC Trustee, on behalf of
the GUC Trust, shall exclusively be entitled to object to object to General Unsecured Claims. After the
Effective Date, the GUC Trustee shall have and retain any and all rights and defenses that the Debtors had
with regard to any General Unsecured Claim to which they may object, except with respect to any General
Unsecured Claim that is Allowed.
7.2. Resolution of Disputed Claims.
(a)The Plan AdministratorWind Down Officer, on behalf of each of the Wind Down
Estates and upon consultation with the Reserve Bank and subject to the terms of
the Wind Down Agreement, shall have the authority to compromise, settle,
otherwise resolve, or withdraw any objections to Administrative Expense Claims,
Priority Tax Claims, Priority Non-Tax Claims, and Other Secured Claims, and
General Unsecured Claims without approval of the Bankruptcy Court, other than
with respect to Fee Claims. Further, in the event of the Funded Transaction on and
after the Effective Date, the Plan Administrator, on behalf of each of the Wind
Down Estates, shall also have the authority to compromise, settle, otherwise
resolve, or withdraw any objections to General Unsecured Claims, upon the
establishment of the GUC Pool, without approval of the Bankruptcy Court, other
than with respect to Fee Claims.
(b) In the event of the Unfunded Transaction on and after the Effective Date,
the GUC Trustee, on behalf of the GUC Trust, shall have authority to compromise, settle, otherwise resolve,
or withdraw any objections to General Unsecured Claims, upon the establishment of the GUC Trust,
without approval of the Bankruptcy Court.
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7.3. Payments and Distributions with Respect to Disputed Claims.
Notwithstanding anything herein to the contrary, if any portion of a Claim is a Disputed
Claim, no payment or distribution provided hereunder shall be made on account of such Claim unless and
until such Disputed Claim becomes an Allowed Claim.
7.4. Distributions after Allowance.
After such time as a Disputed Claim becomes, in whole or in part, an Allowed Claim, the
holder thereof shall be entitled to distributions, if any, to which such holder is then entitled as provided in
this Plan, without interest, as provided in Section 7.8 of the Plan. Such distributions shall be made as soon
as practicable after the date that the order or judgment of the Bankruptcy Court allowing such Disputed
Claim (or portion thereof) becomes a Final Order.
7.5. Estimation of Claims.
In the event of a Funded Transaction, the The Debtors or Plan Administrator Wind Down
Officer (on behalf of each of the Wind Down Estates), as applicable, shall determine, resolve and otherwise
adjudicate all contingent, unliquidated, and Disputed Administrative Expense Claims, Priority Tax Claims,
Priority Non-Tax Claims, Other Secured Claims, and General Unsecured Claims. In the event of an
Unfunded Transaction, the The Debtors or Plan Administrator , Wind Down Officer (on behalf of each of
the Wind Down Estates), as applicable, shall still determine, resolve and otherwise adjudicate all such
Claims, except for Disputed General Unsecured Claims, which shall be determined, resolved and otherwise
adjudicated by the GUC Trustee. The Debtors, Plan Administrator (on behalf of each of the Wind Down
Estates), or GUC Trustee (on behalf of the GUC Trust), as applicable, with respect to such Disputed Claims,
may at any time request that the Bankruptcy Court estimate any contingent, unliquidated, or Disputed Claim
or Class of Claims pursuant to section 502(c) of the Bankruptcy Code or otherwise, including to establish
a reserve for distribution purposes, regardless of whether such, or any, Person had previously objected to
such Claim or whether the Bankruptcy Court has ruled on any such objection. The Bankruptcy Court will
retain jurisdiction to estimate any Claim or Class of Claims at any time during litigation concerning any
objection to any Claim, including, without limitation, during the pendency of any appeal relating to any
such objection. In the event that the Bankruptcy Court estimates any contingent, unliquidated, or Disputed
Claim or Class of Claims, the amount so estimated shall constitute either the Allowed amount of such Claim
or Class of Claims, or a maximum limitation on such Claim or Class of Claims, as determined by the
Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such Claim
or Class of Claims, the Debtors, Plan Administrator, or GUC Trustee or Wind Down Officer, as applicable,
may pursue supplementary proceedings to object to the allowance of such Claims; provided, that such
limitation shall not apply to Claims requested by the Debtors to be estimated for voting purposes only.
For the avoidance of doubt, there shall be no estimation of the Reserve Bank Claim,
Reserve Bank Secured Claim or the Reserve Bank Priority Claim absent the express consent of the Reserve
Bank.
7.6. No Distributions Pending Allowance.
If an objection, motion to estimate, or other challenge to a Claim is filed, no payment or
distribution provided under the Plan shall be made on account of such Claim unless and until (and only to
the extent that) such Claim becomes an Allowed Claim.
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7.7. Claim Resolution Procedures Cumulative.
All of the objection, estimation, and resolution procedures in the Plan are intended to be
cumulative and not exclusive of one another. Claims may be estimated and subsequently settled,
compromised, withdrawn, or resolved in accordance with the Plan without further notice or Bankruptcy
Court approval.
7.8. Interest.
To the extent that a Disputed Claim becomes an Allowed Claim after the Effective Date,
the holder of such Claim shall not be entitled to any interest that accrued thereon from and after the Effective
Date, except as provided in Section 6.7 of the Plan.
7.9. Insured Claims.
If any portion of an Allowed Claim is an Insured Claim, no distributions under the Plan
shall be made on account of such Allowed Claim until the holder of such Allowed Claim has exhausted all
remedies with respect to any applicable insurance policies. To the extent that the Debtors’ insurers agree
to satisfy a Claim in whole or in part, then immediately upon such satisfaction, the portion of such Claim
so satisfied may be expunged without an objection to such Claim having to be filed and without any further
notice to or action, order or approval of the Court.
SECTION 8. EXECUTORY CONTRACTS AND UNEXPIRED LEASES.
8.1. Rejection of Executory Contracts and Unexpired Leases.
(a) As of and subject to the occurrence of the Effective Date, all executory
contracts and unexpired leases to which any of the Debtors are parties shall be deemed rejected, unless such
contract or lease (i) was previously assumed or rejected by the Debtors pursuant to an order of the
Bankruptcy Court; (ii) previously expired or terminated pursuant to its own terms or by agreement of the
parties thereto; (iii) is the subject of a motion to assume filed by the Debtors on or before the Confirmation
Date; (iv) is identified in Section 8.4 of the Plan; or (v) is identified for assumption on the Assumption
Schedule included in the Plan Supplement.
(b) Subject to the occurrence of the Effective Date, entry of the Confirmation
Order by the Bankruptcy Court shall constitute approval of the assumptions, assumptions and assignments,
or rejections provided for in the Plan pursuant to sections 365(a) and 1123 of the Bankruptcy Code and a
determination by the Bankruptcy Court that Wind Down Estates, as applicable, have provided adequate
assurance of future performance under such assumed executory contracts and unexpired leases. Each
executory contract and unexpired lease assumed or assumed and assigned pursuant to the Plan shall vest in
and be fully enforceable by the Wind Down Estates, as applicable, in accordance with its terms, except as
modified by the provisions of the Plan, any order of the Bankruptcy Court authorizing and providing for its
assumption, or applicable law. For the avoidance of doubt, the Program Agreements are not executory
contracts or unexpired leases.
8.2. Determination of Assumption Disputes and Deemed Consent.
(a) Any Cure Amount shall be satisfied, pursuant to section 365(b)(1) of the
Bankruptcy Code, by payment of the Cure Amount, as reflected in the applicable cure notice, in Cash on
the Effective Date, subject to the limitations described below, or on such other terms as the parties to such
executory contracts or unexpired leases and the Debtors may otherwise agree.
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(b) The Debtors shall file, as part of the Plan Supplement, the Assumption
Schedule. At least fourteen (14) days before the Confirmation Hearing, the Debtors shall serve a notice on
parties to executory contracts or unexpired leases to be assumed or assumed and assigned reflecting the
Debtors’ intention to potentially assume or assume and assign the contract or lease in connection with this
Plan and, where applicable, setting forth the proposed Cure Amount (if any). Any objection by a
counterparty to an executory contract or unexpired lease to the proposed assumption, assumption
and assignment, or related Cure Amount must be filed, served, and actually received by the Debtors
within ten (10) days of the service of the assumption notice, or such shorter period as agreed to by
the parties or authorized by the Bankruptcy Court. Any counterparty to an executory contract or
unexpired lease that does not timely object to the notice of the proposed assumption of such executory
contract or unexpired lease shall be deemed to have assented to assumption of the applicable executory
contract or unexpired lease notwithstanding any provision thereof that purports to (i) prohibit, restrict, or
condition the transfer or assignment of such contract or lease; (ii) terminate or modify, or permit the
termination or modification of, a contract or lease as a result of any direct or indirect transfer or assignment
of the rights of any Debtor under such contract or lease or a change, if any, in the ownership or control to
the extent contemplated by the Plan; (iii) increase, accelerate, or otherwise alter any obligations or liabilities
of any Debtor, or any Wind Down Estate, under such executory contract or unexpired lease; or (iv) create
or impose a Lien upon any property or Asset of any Debtor, or Wind Down Estates, as applicable. Each
such provision shall be deemed to not apply to the assumption of such executory contract or unexpired lease
pursuant to the Plan and counterparties to assumed executory contracts or unexpired leases that fail to object
to the proposed assumption in accordance with the terms set forth in this Section 8.2(b), shall forever be
barred and enjoined from objecting to the proposed assumption or to the validity of such assumption
(including with respect to any Cure Amounts or the provision of adequate assurance of future performance),
or taking actions prohibited by the foregoing or the Bankruptcy Code on account of transactions
contemplated by the Plan.
(c) If there is an Assumption Dispute pertaining to assumption of an executory
contract or unexpired lease (other than a dispute pertaining to a Cure Amount), such dispute shall be heard
by the Bankruptcy Court prior to such assumption being effective; provided, that the Debtors or Wind Down
Estates, as applicable, may settle any Assumption Dispute without any further notice to any party or any
action, order, or approval of the Bankruptcy Court.
(d) To the extent an Assumption Dispute relates solely to the Cure Amount,
the Debtors may assume and/or assume and assign the applicable executory contract or unexpired lease
prior to the resolution of the Assumption Dispute; provided, that the Debtors or the Wind Down Estate, as
applicable, reserve Cash in an amount sufficient to pay the full amount reasonably asserted as the required
cure payment by the non-Debtor party to the extent such executory contract or unexpired lease (or such
smaller amount as may be fixed or estimated by the Bankruptcy Court or otherwise agreed to by such non-
Debtor party and the applicable Reorganized Debtor or the Wind Down Estate, as applicable). The Debtors
or Wind Down Estates, as applicable, may settle any dispute regarding the Cure Amount or the nature
thereof without any further notice to any party or any action, order, or approval of the Bankruptcy Court.
(e) Assumption or assumption and assignment of any executory contract or
unexpired lease pursuant to the Plan or otherwise shall result in the full release and satisfaction of any
Claims against any Debtor or defaults by any Debtor, whether monetary or nonmonetary, including defaults
of provisions restricting the change in control or ownership interest composition or other bankruptcy-related
defaults, arising under any assumed executory contract or unexpired lease at any time before the date that
the Debtors assume or assume and assign such executory contract or unexpired lease. Any proofs of Claim
filed with respect to an executory contract or unexpired lease that has been assumed or assumed and
assigned shall be deemed Disallowed and expunged, without further notice to or action, order, or approval
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of the Bankruptcy Court or any other Entity, upon the assumption of such executory contract or unexpired
leases.
8.3. Rejection Damages Claims.
In the event that the rejection of an executory contract or unexpired lease hereunder
results in damages to the other party or parties to such contract or lease, any Claim for such damages
shall be classified and treated in Class 4 (General Unsecured Claims). A proof of such Claim must
be filed with the Bankruptcy Court by the later of (i) thirty (30) days after the filing and service of
the notice of occurrence of the Effective Date; (ii) the general bar date or governmental bar date, as
applicable; and (iii) thirty (30) days following service of an Order approving rejection of any
executory contract or unexpired lease of the Debtors if such contract or lease is the subject of a
pending Assumption Dispute.
8.4. Insurance Policies.
Notwithstanding anything to the contrary in the Definitive Documents, the Plan, the Plan
Supplement, any bar date notice, or claim objection, and any other document related to any of the foregoing,
and any other order of the Bankruptcy Court, on the Effective Date: (a) all insurance policies issued or
providing coverage to the Debtors shall (subject to the applicable insurer’s right to object to such a
designation) be assumed in their entirety by the Debtors pursuant to sections 365 and 1123 of the
Bankruptcy Code, and, in the event of a Funded Transaction, coverage for defense costs and
indemnification under the D&O Policies shall remain available to all individuals within the definition of
“Insured” in the D&O Policies, and Wind Down Estates, or Plan AdministratorWind Down Officer, as
applicable, shall remain liable in full for any and all now existing or hereinafter arising obligations,
liabilities, terms, provisions and covenants of any of the Debtors under such insurance policies, without the
need or requirement for an insurer to file a Proof of Claim, Administrative Expense Claim or objection to
any cure amount; (b) nothing shall alter or modify the terms and conditions of and/or any rights, obligations,
benefits, claims, rights to payments, or recoveries under the insurance policies without the express written
consent of the applicable insurer; and (c) the automatic stay of Bankruptcy Code section 362(a) and the
injunctions set forth in the Plan, if and to the extent applicable, shall be deemed lifted without further order
of this Court, solely to permit: (i) claimants with valid workers’ compensation claims or direct action claims
against an insurer under applicable nonbankruptcy law to proceed with their claims; (ii) insurers to
administer, handle, defend, settle, and/or pay, in the ordinary course of business and without further order
of the Bankruptcy Court, (I) workers’ compensation claims, (II) claims where a claimant asserts a direct
claim against any insurer under applicable non-bankruptcy law, or an order has been entered by the
Bankruptcy Court granting a claimant relief from the automatic stay to proceed with its claim, and (III) all
costs in relation to each of the foregoing; (iii) the insurers to cancel any insurance policies, and take other
actions relating thereto, to the extent permissible under applicable non-bankruptcy law, and in accordance
with the terms of the insurance policies; and (iv) holders of Allowed Claims to pursue insurance recovery
to the extent allowed or required by Section 7.9 of this Plan.
8.5. Indemnification Obligations
Any obligations of the Debtors pursuant to a contract, instrument, agreement, certificate of
incorporation, by-law, comparable organizational document or any other document or applicable law,
including amendments entered into any time prior to the Effective Date, to indemnify, reimburse, or limit
the liability of any director, officer, or employee of the Debtors, pursuant to the foregoing in respect of any
claims, demands, suits, causes of action, or proceedings against such director, officer, or employee based
upon any act or omission related to such director or officer’s service with, for, or on behalf of the Debtors
prior to the Effective Date with respect to all present and future actions, suits, and proceedings relating to
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the Debtors shall survive Confirmation of the Plan and except as set forth herein, remain unaffected thereby,
and shall not be discharged, irrespective of whether such defense, indemnification, reimbursement, or
limitation of liability accrued or is owed in connection with an occurrence before or after the
Commencement Date; provided, however, that all monetary obligations under this provision shall be (a)
limited solely to available insurance coverage, (b) to the extent such Claims are not covered by any
applicable insurance, including deductibles, shall be treated as Allowed General Unsecured Claims, and (c)
neither the Debtors, Wind Down Estates, Wind Down Officer, the GUC Pool, nor any of their assets shall
be liable for any such obligations.
Any Claim based on the Debtors’ indemnification obligations shall not be a Disputed Claim
or subject to any objection under Bankruptcy Code section 502(e)(1)(B). For the avoidance of doubt, the
scope of the Debtors’ indemnification obligations in this Section 8.5 shall be conterminous with applicable
non-bankruptcy law and to the extent provided by such law.
Notwithstanding the above, this Section 8.5 shall not apply to any Former Officers and
Directors and any obligations of the Debtors pursuant to a contract, instrument, agreement, certificate of
incorporation, by-law, comparable organizational document or any other document or applicable law,
including amendments entered into any time prior to the Effective Date, to indemnify, reimburse, or limit
the liability of any Former Officer and Director shall be rejected as of the Effective Date.
8.5.8.6. Intellectual Property Licenses and Agreements.
Notwithstanding anything to the contrary in the Definitive Documents, the Plan, the Plan
Supplement, any bar date notice or claim objection, and any other document related to any of the foregoing,
all intellectual property contracts, licenses, royalties, or other similar agreements to which the Debtors have
any rights or obligations in effect as of the date of the Confirmation Order shall be deemed assumed by the
Debtors and the Wind Down Estates and shall continue in full force and effect unless any such intellectual
property contract, license, royalty, or other similar agreement otherwise is specifically rejected pursuant to
a separate order of the Bankruptcy Court or is the subject of a separate rejection motion filed by the Debtors
in accordance with Section 8.1 of the Plan. Unless otherwise noted hereunder, all other intellectual property
contracts, licenses, royalties, or other similar agreements shall vest in the Wind Down Estates, and the Wind
Down Estates may take all actions as may be necessary or appropriate to ensure such vesting as
contemplated herein.
8.6.8.7. Assignment.
To the extent provided under the Bankruptcy Code or other applicable law, any executory
contract or unexpired lease transferred and assigned hereunder shall remain in full force and effect for the
benefit of the transferee or assignee in accordance with its terms, notwithstanding any provision in such
executory contract or unexpired lease (including those of the type set forth in section 365(b)(2) of the
Bankruptcy Code) that prohibits, restricts, or conditions such transfer or assignment. To the extent provided
under the Bankruptcy Code or other applicable law, any provision that prohibits, restricts, or conditions the
assignment or transfer of any such executory contract or unexpired lease or that terminates or modifies such
executory contract or unexpired lease or allows the counterparty to such executory contract or unexpired
lease to terminate, modify, recapture, impose any penalty, condition renewal or extension, or modify any
term or condition upon any such transfer and assignment, constitutes an unenforceable anti-assignment
provision and is void and of no force or effect with respect to any assignment pursuant to the Plan.
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8.7.8.8. Modifications, Amendments, Supplements, Restatements, or Other Agreements.
Unless otherwise provided herein or by separate order of the Bankruptcy Court, each
executory contract and unexpired lease that is assumed shall include any and all modifications,
amendments, supplements, restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract or unexpired lease,
without regard to whether such agreement, instrument, or other document is listed in the notice of assumed
contracts.
8.8.8.9. Reservation of Rights.
(a) The Debtors may amend the Assumption Schedule and any cure notice
until five (5) Business Days immediately prior to the commencement of the Confirmation Hearing in order
to (i) add, delete, or reclassify any executory contract or unexpired lease or amend a proposed assumption
or assumption and assignment and/or (ii) amend the proposed Cure Amount; provided, that if the
Confirmation Hearing is adjourned for a period of more than two (2) consecutive calendar days, the
Debtors’ right to amend such schedules and notices shall be extended to the Business Day immediately
prior to the adjourned date of the Confirmation Hearing, with such extension applying in the case of any
and all subsequent adjournments of the Confirmation Hearing. The Debtors shall provide notice of such
amendment to any affected counterparty as soon as reasonably practicable.
(b) Neither the exclusion nor inclusion of any contract or lease by the Debtors
on any exhibit, schedule, or other annex to the Plan or in the Plan Supplement, nor anything contained in
the Plan, will constitute an admission by the Debtors that any such contract or lease is or is not in fact an
executory contract or unexpired lease or that the Debtors, or Wind Down Estates, or their respective
affiliates have any liability thereunder.
(c) Except as otherwise provided in the Plan, nothing herein shall waive,
excuse, limit, diminish, or otherwise alter any of the defenses, Claims, Causes of Action, or other rights of
the Debtors and Wind Down Estates, under any executory or non-executory contract or any unexpired or
expired lease.
(d) Nothing in the Plan will increase, augment, or add to any of the duties,
obligations, responsibilities, or liabilities of the Debtors, Wind Down Estates, as applicable, under any
executory or non-executory contract or any unexpired or expired lease.
SECTION 9. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE.
9.1. Conditions Precedent to the Effective Date.
The occurrence of the Effective Date of the Plan is subject to the following conditions
precedent:
(a) the Bankruptcy Court shall have entered the Confirmation Order, the form
and substance of the Confirmation Order is acceptable to the Reserve Bank in its reasonable discretion, the
Confirmation Date shall have occurred, and no stay of the Confirmation Order shall be in effect;
(b) all agreements necessary to implement the Plan, shall have (i) been
tendered for delivery and (ii) been effected or executed by all Entities party thereto, and all conditions
precedent to the effectiveness of such documents and agreements shall have been satisfied or waived
pursuant to the terms of such documents or agreements;
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(c) the documents contained in the Plan Supplement will contain terms and
conditions consistent in all material respects with this Plan;
(d) the Wind Down Estate shall have been funded with the Wind Down
Amount in accordance with the Wind Down Budget;
(c)(e) in the event of a Funded Transaction, the GUC Pool shall have been
created and funded by with the GUC Pool Amount; and
(d) in the event of an Unfunded Transaction, the GUC Trust shall have been
established; and
(e)(f) notwithstanding when a condition precedent to the Effective Date occurs,
for purposes of the Plan, such condition precedent shall be deemed to have occurred simultaneously upon
the completion of the applicable conditions precedent to the Effective Date; provided, that to the extent a
condition precedent (a “Prerequisite Condition”) may be required to occur prior to another condition
precedent (a “Subsequent Condition”) then, for purposes of the Plan, the Prerequisite Condition shall be
deemed to have occurred immediately prior to a Subsequent Condition regardless of when such Prerequisite
Condition or Subsequent Condition shall have occurred.
(g) The transfer of servicing of the PPPLF Collateral to an alternate third party
servicer contemplated pursuant to section 5.3 herein has been completed to the satisfaction of the Reserve
Bank, unless the Reserve Bank consents in advance, in its sole discretion, to Post-Effective Date PPP
Servicing in accordance with section 5.3(d) herein.
9.2. Waiver of Conditions Precedent.
(a) Except as otherwise provided herein, all actions required to be taken on
the Effective Date shall take place and shall be deemed to have occurred simultaneously and no such action
shall be deemed to have occurred prior to the taking of any other such action. Each of the conditions
precedent in Section 9.1 of the Plan other than the conditions set forth in Section 9.1(b) may be waived in
writing by the Debtors , subject to the reasonable consent of the Reserve Bank with respect to the conditions
set forth in Section 9.1(a), (c) and (e) and without leave of or order of the Bankruptcy Court.
(b) The stay of the Confirmation Order pursuant to Bankruptcy Rule 3020(e)
shall be deemed waived by and upon the entry of the Confirmation Order, and the Confirmation Order shall
take effect immediately upon its entry.
9.3. Effect of Failure of Conditions to Effective Date.
Unless otherwise extended by the Debtors, if the Effective Date does not occur on or before
the date that is one hundred and eighty (180) days after the date on which the Confirmation Order is entered
or if the Confirmation Order is vacated, (a) no distributions under the Plan shall be made, (b) the Debtors
and all holders of Claims and Interests shall be restored to the status quo ante as of the day immediately
preceding the Confirmation Date as though the Confirmation Date never occurred, and (c) all the Debtors’
obligations with respect to the Claims and the Interests shall remain unchanged and nothing contained
herein shall be deemed to constitute a waiver or release of any Claims by or against the Debtors or any
other entity or to prejudice in any manner the rights of the Debtors or any other entity in any further
proceedings involving the Debtors or otherwise.
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SECTION 10. EFFECT OF CONFIRMATION.
10.1. Vesting of Assets.
(a) On the Effective Date and solely with respect to the Funded Transaction,
pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all remaining property of the Debtors’ Estates
and any Estate Causes of Action shall vest in the Wind Down Estates free and clear of all Claims, Liens,
encumbrances, charges, and other interests (other than the Liens securing the Reserve Bank Claims), subject
to treatment of Other Secured Claims and Reserve Bank Claims under the Plan. On and after the Effective
Date, the Wind Down Estates may take any action, including, without limitation, the operation of their
businesses; the use, acquisition, sale, lease and disposition of property; and the entry into transactions,
agreements, understandings, or arrangements, whether in or other than in the ordinary course of business,
and execute, deliver, implement, and fully perform any and all obligations, instruments, documents, and
papers or otherwise in connection with any of the foregoing, free of any restrictions of the Bankruptcy Code
or Bankruptcy Rules and in all respects as if there was no pending case under any chapter or provision of
the Bankruptcy Code, except as expressly provided herein. Without limiting the foregoing, the Wind Down
Estates may pay the charges that they incur on or after the Effective Date for professional fees,
disbursements, expenses, or related support services without application to the Bankruptcy Court.
Notwithstanding the foregoing, vesting of property in which any governmental unit holds an interest, and
for which title vests in the Debtors subject to regulatory requirements under a governmental grant or award,
including but not limited to, the requirements of 10 C.F.R. 600.321, shall be limited to the extent of the
Debtors’ interest in such property; and the Wind Down Estates may only take action, including but not
limited to the use, acquisition, sale, lease, and disposition of such property, in accordance with applicable
non-bankruptcy law.
(b) On the Effective Date and solely with respect to the Unfunded
Transaction, the GUC Trust Assets, as well as the rights and powers of the Debtors’ Estates applicable to
the GUC Trust Assets, shall vest in the GUC Trust, for the benefit of the GUC Trust Beneficiaries free and
clear of all Claims, Liens, encumbrances, charges, and other interests.
10.2. Term of Injunctions or Stays.
Unless otherwise provided herein, the Confirmation Order, or in a Final Order of the
Bankruptcy Court, all injunctions or stays arising under or entered during the Chapter 11 Cases under
section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall
remain in full force and effect until the later of the Effective Date and the date indicated in the order
providing for such injunction or stay.
10.3. Injunction.
(a) Upon entry of the Confirmation Order, all holders of Claims and
Interests and other parties in interest, along with their respective present or former employees,
agents, officers, directors, principals, and affiliates, shall be enjoined from taking any actions to
interfere with the implementation or consummation of the Plan in relation to any Claim extinguished,
discharged, or released pursuant to the Plan.
(b) Except as expressly provided in the Plan, the Definitive Documents,
the Confirmation Order, or a separate order of the Bankruptcy Court or as agreed to by the Debtors
and a holder of a Claim against or Interest in the Debtors, all Entities who have held, hold, or may
hold Claims against or Interests in the Debtors (whether proof of such Claims or Interests has been
filed or not and whether or not such Entities vote in favor of, against or abstain from voting on the
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Plan or are presumed to have accepted or deemed to have rejected the Plan) and other parties in
interest, along with their respective present or former employees, agents, officers, directors,
principals, and affiliates are permanently enjoined, on and after the Effective Date, solely with
respect to any Claims, Interests, and Causes of Action that will be or are treated by the Plan from
(i) commencing, conducting, or continuing in any manner, directly or indirectly, any suit, action, or
other proceeding of any kind (including, without limitation, any proceeding in a judicial, arbitral,
administrative or other forum) against or affecting the Debtors, the Wind Down Estates, the Plan
Administrator, the GUC Trust, or the GUC TrusteeWind Down Officer, as applicable, or the
property of any of the Debtors, the Wind Down Estates, the Plan Administrator, the GUC Trust, or
the GUC TrusteeWind Down Officer, as applicable; (ii) enforcing, levying, attaching (including,
without limitation, any prejudgment attachment), collecting, or otherwise recovering by any manner
or means, whether directly or indirectly, any judgment, award, decree, or order against the Debtors,
the Wind Down Estates, the Plan Administrator, the GUC Trust, or the GUC TrusteeWind Down
Officer; or the property of any of the Debtors, or the Wind Down Estates, or the GUC Trust, as
applicable; (iii) creating, perfecting, or otherwise enforcing in any manner, directly or indirectly, any
encumbrance of any kind against the Debtors, the Wind Down Estates, the GUC Trust, or the
property of any of the Debtors, the Wind Down Estates, the Plan Administrator, the GUC Trust, or
the GUC TrusteeWind Down Officer, as applicable; (iv) asserting any right of setoff, directly or
indirectly, against any obligation due from the Debtors, or the Wind Down Estates, or the GUC Trust,
as applicable, or against property or interests in property of any of the Debtors, the GUC Trust, or
the Wind Down Estates, except as contemplated or Allowed by the Plan; and (v) acting or proceeding
in any manner, in any place whatsoever, that does not conform to or comply with the provisions of
the Plan.
(c) By accepting distributions pursuant to the Plan, each holder of an
Allowed Claim or Interest extinguished, discharged, or released pursuant to the Plan will be deemed
to have affirmatively and specifically consented to be bound by the Plan, including, without
limitation, the injunctions set forth in this Section 10.3.
(d) The injunctions in this Section 10.3 shall extend to any successors of
the Debtors, or the Wind Down Estates, or the GUC Trust, as applicable, and their respective
property and interests in property.
(e) Notwithstanding the foregoing, nothing in this Section 10.3 shall
enjoin the assertion of a defensive right of recoupment.
(f) Nothing in the Plan or Confirmation Order shall (1) enjoin, release,
impair or otherwise preclude the United States (i) from pursuing any criminal action or any police
or regulatory action, (ii) from pursuing any liability to the United States that is not a Claim, (iii) from
exercising any rights of setoff or recoupment subsequent to confirmation of the Plan or any order
granting substantive consolidation, and such rights are preserved, and (iv) from pursuing any claim
of the United States arising on or after the Confirmation Date; and (2) grant the Debtors a discharge
pursuant to section 1141(d) of the Bankruptcy Code as to the United States.
(g) [Notwithstanding anything to the contrary in the foregoing or in any
releases provided for under this Plan, the Reserve Bank shall not release, waive or discharge and shall retain
the right to pursue any and all claims, rights and Causes of Action it may have pursuant to 12 U.S.C. § 1818
against any Institution-affiliated party (as defined in 12 U.S.C. § 1813(u)) of the Debtors.]
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10.4. Binding Effect.
As of the Effective Date, the Plan shall bind all holders of Claims against and Interests in
the Debtors and their respective successors and assigns, notwithstanding whether any such holders were
(a) Impaired or Unimpaired under the Plan; (b) deemed to accept or reject the Plan; (c) failed to vote to
accept or reject the Plan; (d) voted to reject the Plan; or (e) received any distribution under the Plan.
10.5. Releases by the Debtors.
As of the Effective Date, the Debtors, and each of their respective Affiliates, on behalf
of themselves and their respective Estates, including any successor to the Debtors or any Estate
representative appointed or selected pursuant to section 1123(b)(3) of the Bankruptcy Code,
including the Wind Down Estate, shall be deemed to have conclusively, absolutely, unconditionally,
irrevocably, and forever released, and waived, and discharged the each Released Parties Party from
any and all claims, interests, obligations, rights, suits, damages, Causes of Action, remedies, and
liabilities whatsoever (including any derivative claims asserted or that may be asserted on behalf of
any of the Debtors and or their Estates), whether known or unknown, foreseen or unforeseen, existing
or hereinafter arising, in law, equity, or otherwise, based on or relating to, or in any manner arising
from, in whole or in part, the Debtors, the Chapter 11 Cases, the Plan (including the Plan
Supplement), the Disclosure Statement, the Restructuringrestructuring of Claims or Interests prior
to or in the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation of any of the
foregoing or any contract, instrument, release, or other agreement or document created or entered
into in connection with any of the foregoing, the pursuit of confirmation of the Plan, the solicitation
of votes on the Plan, the pursuit of consummation of the Effective Date, the administration and
implementation of the Plan, including the issuance or distribution of securities pursuant to the Plan,
the subject matter of or the transactions or events giving rise to any Claim or Interest that is treated
in the Plan, or the distribution of property under the Plan or any other related agreement, or upon
any other act or omission, transaction, agreement, event, or other occurrence taking place on or
before the Effective Date related or relating to the foregoing, except for acts or omissions Causes of
Action arising from an act or omission of a Released Party arising out of or related to acts or
omissions that constitute that is judicially determined in a Final Order to have constituted actual
fraud, gross negligence, criminal misconduct or willful misconduct. Notwithstanding anything to the
contrary in the foregoing, the releases set forth above shall not be construed as releasing any post-
Effective Date obligations of any party or entity under the Plan, or any document, instrument, or
agreement (including those set forth in the Plan Supplement) executed to implement the Plan.
10.6. Releases By Holders of Claims and Interests.
As of the Effective Date, except (a) for the right to enforce the Plan or (b) as otherwise
expressly provided in the Plan or in the Confirmation Order, to the fullest extent permissible under
applicable law, as such law may be extended or integrated after the date upon which the Bankruptcy
Court enters the Confirmation Order, on or after the Effective Date, the each Released Parties Party
shall be deemed expressly, conclusively, absolutely, unconditionally, irrevocably and forever,
released, and waived, and discharged by by each of the Releasing Parties from any and all claims,
interests, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever
(including any derivative claims asserted or that may be asserted on behalf of any of the Debtors and
or their Estates), whether known or unknown, foreseen or unforeseen, existing or hereinafter arising,
in law, equity, or otherwise, based on or relating to, or in any manner arising from, in whole or in
part, the Debtors, the Chapter 11 Cases, the Plan (including the Plan Supplement), the Disclosure
Statement, the Restructuringrestructuring of Claims or Interests prior to or in the Chapter 11 Cases,
the formulation, preparation, dissemination, negotiation of any of the foregoing or any contract,
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instrument, release, or other agreement or document created or entered into in connection with any
of the foregoing, the pursuit of confirmation of the Plan, the solicitation of votes on the Plan, the
pursuit of consummation of the Effective Date, the administration and implementation of the Plan,
including the issuance or distribution of securities pursuant to the Plan, the subject matter of, or the
transactions or events giving rise to, any Claim or Interest that is treated in the Plan, or the
distribution of property under the Plan or any other related agreement, or upon any other act or
omission, transaction, agreement, event, or other occurrence taking place on or before the Effective
Date related or relating to the foregoing, except for acts or omissions Causes of Action arising from
an act or omission of a Released Party arising out of or related to acts or omissions that constitute
that is judicially determined in a Final Order to have constituted actual fraud, gross negligence,
criminal misconduct or willful misconduct. Notwithstanding anything to the contrary in the
foregoing, the releases set forth above shall not be construed as releasing any post-Effective Date
obligations of any party or entity under the Plan, or any document, instrument, or agreement
(including those set forth in the Plan Supplement) executed to implement the Plan.
10.7. Exculpation.
To the maximum extent permitted by applicable law, no Exculpated Party shall have
or incur liability for, and each Exculpated Party is hereby released and exculpated from any and all
Claims, Interests, obligations, rights, suits, damages, Causes of Action, remedies, and liabilities
whatsoever, arising between the Petition Commencement Date and the Effective Date, whether
known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or
otherwise, based on or relating to, or in any manner arising from, in whole or in part, the Debtors,
the Chapter 11 Cases, the Plan (including the Plan Supplement), the Disclosure Statement, the
Restructuringrestructuring of Claims or Interests in the Chapter 11 Cases, the formulation,
preparation, dissemination, negotiation of any of the foregoing or any contract, instrument, release,
or other agreement or document created or entered into in connection with any of the foregoing, the
pursuit of confirmation of the Plan, the solicitation of votes on the Plan, the pursuit of consummation
of the Effective Date, the administration and implementation of the Plan, including the issuance or
distribution of securities pursuant to the Plan, the subject matter of, or the transactions or events
giving rise to, any Claim or Interest that is treated in the Plan, or the distribution of property under
the Plan or any other related agreement, or upon any other act or omission, transaction, agreement,
event, or other occurrence taking place before the Petition Date and the Effective Date related or
relating to the foregoing, except for Claims or Causes of Action arising from an act or omission that
is judicially determined in a Final Order to have constituted actual fraud, willful misconduct, or gross
negligence, but in all respects, such Exculpated Parties shall be entitled to reasonably rely upon the
advice of counsel with respect to their duties and responsibilities.
The To the extent section 1125(e) of the Bankruptcy Code applies, the Exculpated
Parties have, and upon completion of the Plan, shall be deemed to have, participated in good faith
and in compliance with the applicable laws with regard to the solicitation of, and distribution of
consideration pursuant to, the Plan and, therefore, are not, and on account of such distributions shall
not be, liable at any time for the violation of any applicable law, rule, or regulation governing the
solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan.
This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities,
exculpations, and any other applicable laws, rules, or regulations protecting such Exculpated Parties
from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth
above shall not be construed as exculpating any party or entity from its post-Effective Date
obligations under the Plan, or any document, instrument, or agreement (including those set forth in
the Plan Supplement) executed to implement the Plan.
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10.8. Waiver of Statutory Limitation on Releases.
EACH RELEASING PARTY IN EACH OF THE RELEASES CONTAINED IN THE
PLAN (INCLUDING UNDER SECTION 10 OF THE PLAN) EXPRESSLY ACKNOWLEDGES THAT
ALTHOUGH ORDINARILY A GENERAL RELEASE MAY NOT EXTEND TO CLAIMS WHICH THE
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR, WHICH IF
KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE PARTY
RELEASED, IT HAS CAREFULLY CONSIDERED AND TAKEN INTO ACCOUNT IN
DETERMINING TO ENTER INTO THE ABOVE RELEASES THE POSSIBLE EXISTENCE OF SUCH
UNKNOWN LOSSES OR CLAIMS. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EACH RELEASING PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS
CONFERRED UPON IT BY ANY STATUTE OR RULE OF LAW WHICH PROVIDES THAT A
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CLAIMANT DOES NOT KNOW OR
SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY IT MAY HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE RELEASED
PARTY, INCLUDING THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542. THE
RELEASES CONTAINED IN SECTION 10 OF THE PLAN ARE EFFECTIVE REGARDLESS OF
WHETHER THOSE RELEASED MATTERS ARE PRESENTLY KNOWN, UNKNOWN, SUSPECTED
OR UNSUSPECTED, FORESEEN OR UNFORESEEN.
10.9. Solicitation of the Plan.
As of and subject to the occurrence of the Confirmation Date: (a) the Debtors shall be
deemed to have previously solicited acceptances of this Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code, including without limitation, sections 1125(a) and (e) of the
Bankruptcy Code, and any applicable non-bankruptcy law, rule or regulation governing the adequacy of
disclosure in connection with such solicitation, and (b) the Debtors and each of their respective directors,
officers, employees, Affiliates, agents, financial advisors, investment bankers, professionals, accountants,
and attorneys shall be deemed to have participated in good faith and in compliance with the applicable
provisions of the Bankruptcy Code in the offer and issuance of any securities under this Plan, and therefore,
are not, and on account of such offer, issuance and solicitation will not be, liable at any time for any violation
of any applicable law, rule or regulation governing the solicitation of acceptances or rejections of this Plan
or the offer and issuance of any securities under this Plan.
10.10. Corporate Action.
Upon the Effective Date, by virtue of the solicitation of votes in favor of this Plan and entry
of the Confirmation Order, all actions contemplated by this Plan (including any action to be undertaken by
the Plan AdministratorWind Down Officer) shall be deemed authorized, approved, and, to the extent taken
prior to the Effective Date, ratified without any requirement for further action by holders of Claims or
Interests, the Debtors, or any other Entity or Person. All matters provided for in this Plan involving the
corporate structure of the Debtors, and any corporate action required by the Debtors in connection
therewith, shall be deemed to have occurred on the Effective Date and shall be in effect, without any
requirement of further action by the Debtors or the Estates.
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SECTION 11. RETENTION OF JURISDICTION.
11.1. Retention of Jurisdiction.
On and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over all
matters arising in, arising under, and related to the Chapter 11 Cases for, among other things, the following
purposes:
(a) to hear and determine motions and/or applications for the assumption or rejection
of executory contracts or unexpired leases, including Assumption Disputes, and the allowance,
classification, priority, compromise, estimation, or payment of Claims resulting therefrom;
(b) to determine any motion, adversary proceeding, application, contested matter, and
other litigated matter pending on or commenced after the Confirmation Date;
(c) to ensure that distributions to holders of Allowed Claims are accomplished as
provided for in the Plan and Confirmation Order, including to ensure that an Allowed Claim does not
receive consideration in excess of the Allowed amount of such Claim, and to adjudicate any and all disputes
arising from or relating to distributions under the Plan, including, 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 paid;
(d) to consider the allowance, classification, priority, compromise, estimation, or
payment of any Claim or Class of Claims;
(e) to enter, implement, or enforce such orders as may be appropriate in the event the
Confirmation Order is for any reason stayed, reversed, revoked, modified, or vacated;
(f) to issue injunctions, enter and implement other orders, and take such other actions
as may be necessary or appropriate to restrain interference by any Entity with the consummation,
implementation, or enforcement of the Plan, the Confirmation Order, or any other order of the Bankruptcy
Court;
(g) to hear and determine any application to modify the Plan in accordance with
section 1127 of the Bankruptcy Code, to remedy any defect or omission or reconcile any inconsistency in
the Plan, or any order of the Bankruptcy Court, including the Confirmation Order, in such a manner as may
be necessary to carry out the purposes and effects thereof;
(h) to hear and determine all proceedings, if any, to approve Fee Claims;
(i) to hear and determine disputes arising in connection with the interpretation,
implementation, or enforcement of the Plan, the Plan Supplement, or the Confirmation Order, or any
agreement, instrument, or other document governing or relating to any of the foregoing;
(j) to take any action and issue such orders as may be necessary to construe, interpret,
enforce, implement, execute, and consummate the Plan;
(k) to determine such other matters and for such other purposes as may be provided in
the Confirmation Order;
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(l) to hear and determine matters concerning state, local, and federal taxes in
accordance with sections 346, 505, and 1146 of the Bankruptcy Code (including any requests for expedited
determinations under section 505(b) of the Bankruptcy Code);
(m) to hear, adjudicate, decide, or resolve any and all matters related to Section 10 of
the Plan, including, without limitation, the releases, discharge, exculpations, and injunctions issued
thereunder;
(n) to resolve disputes concerning Disputed Claims or the administration thereof;
(o) to hear and determine any other matters related hereto and not inconsistent with
the Bankruptcy Code and title 28 of the United States Code;
(p) to enter one or more final decrees closing the Chapter 11 Cases;
(q) to recover all Assets of the Debtors and property of the Debtors’ Estates, wherever
located and adjudicate any disputes with respect thereto;
(r) to resolve any disputes concerning whether an Entity had sufficient notice of the
Chapter 11 Cases, the Disclosure Statement, any solicitation conducted in connection with the Chapter 11
Cases, any bar date established in the Chapter 11 Cases, or any deadline for responding or objecting to a
Cure Amount, in each case, for the purpose of determining whether a Claim or Interest is discharged
hereunder or for any other purpose; and
(s) to hear and resolve any dispute over the application to any Claim of any limit on
the allowance of such Claim set forth in sections 502 or 503 of the Bankruptcy Code, other than defenses
or limits that are asserted under non-bankruptcy law pursuant to section 502(b)(1) of the Bankruptcy Code.
11.2. Courts of Competent Jurisdiction.
If the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is
otherwise without jurisdiction over any matter arising out of the Plan, such abstention, refusal, or failure of
jurisdiction shall have no effect upon and shall not control, prohibit, or limit the exercise of jurisdiction by
any other court having competent jurisdiction with respect to such matter.
SECTION 12. MISCELLANEOUS PROVISIONS.
12.1. Payment of Statutory Fees.
(a) On the Effective Date and thereafter as may be required, the Debtors or the Plan
AdministratorWind Down Officer, as applicable, shall pay all Statutory Fees that are due and payable,
together with interest, if any, pursuant to § 3717 of title 31 of the United States Code for each Debtor’s case
(the “Quarterly Fees”). After the Effective Date, the Wind Down Estates and the Wind Down Officer, as
applicable, shall pay any and all Quarterly Fees when due and payable. The Debtors shall file all monthly
operating reports due prior to the Effective Date when they become due, using UST Form 11-MOR. After
the Effective Date, the Wind Down Estates and the Wind Down Officer, as applicable shall file with the
Bankruptcy Court separate UST Form 11-PCR reports when they become due. Notwithstanding anything
called for in the Plan to the contrary, the Wind Down Estates and the Wind Down Officer, as applicable,
shall remain obligated to pay Quarterly Fees to the Office of the U.S. Trustee and make such reports until
the earliest of that particular Debtor's case being closed, dismissed, or converted to a case under Chapter 7
of the Bankruptcy Code. The U.S. Trustee shall not be required to file any Administrative Claim in the
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case and shall not be treated as providing any release under the Plan. The obligations under this Section
12.1 shall remain for each Debtor until such time as a final decree is entered closing the Chapter 11 Case
for such Debtor, a Final Order converting such Debtor’s Chapter 11 Case to a case under chapter 7 of the
Bankruptcy Code is entered, or a Final Order dismissing such Debtor’s Chapter 11 Case is entered.
12.2. Substantial Consummation.
On the Effective Date, the Plan shall be deemed to be substantially consummated under
sections 1101 and 1127(b) of the Bankruptcy Code.
12.3. Dissolution of Creditors’ Committee.
On the Effective Date, the Creditors’ Committee, if any, shall dissolve, and the members
thereof shall be released and discharged from all rights and duties arising from, or related to, the Chapter
11 Cases; provided, however, that after the Effective Date, the Creditors’ Committee shall exist and its
professionals shall continue to be retained and shall continue to be entitled to reasonable compensation by
the Debtors without the need for further application to the Bankruptcy Court with respect to all applications
filed pursuant to sections 330 and 331 of the Bankruptcy Code and any related hearings.
12.4. Amendments.
(a) Plan Modifications. The Debtors reserve the right, in accordance with the
Bankruptcy Code and the Bankruptcy Rules and subject to the consent of the Reserve Bank in its reasonable
discretion with respect to matters that adversely affect its rights, to amend or modify the Plan (i) prior to
the entry of the Confirmation Order, including amendments or modifications to satisfy section 1129(b) of
the Bankruptcy Code, and (ii) after entry of the Confirmation Order, the Debtors may, upon order of the
Court, amend, modify or supplement the Plan in the manner provided for by section 1127 of the Bankruptcy
Code or as otherwise permitted by law, in each case without additional disclosure pursuant to section 1125
of the Bankruptcy Code. In addition, after the Confirmation Date, so long as such action does not materially
and adversely affect the treatment of holders of Allowed Claims or Allowed Interests pursuant to the Plan,
the Debtors may remedy any defect or omission or reconcile any inconsistencies in this Plan or the
Confirmation Order with respect to such matters as may be necessary to carry out the purposes or effects
of this Plan, and any holder of a Claim or Interest that has accepted this Plan shall be deemed to have
accepted this Plan as amended, modified, or supplemented.
(b) Other Amendments. Before the Effective Date, the Debtors may make
appropriate technical adjustments and modifications to the Plan and the documents contained in the Plan
Supplement without further order or approval of the Bankruptcy Court.
12.5. Revocation or Withdrawal of the Plan.
The Debtors reserve the right to revoke or withdraw the Plan, including the right to revoke
or withdraw this Plan for any Debtor or all Debtors, prior to the Confirmation Date. If the Debtors revoke
or withdraw the Plan, or if Confirmation or the Effective Date does not occur, in each case with respect to
a Debtor, then, with respect to such Debtor: (a) this Plan shall be null and void in all respects; (b) any
assumption or rejection of executory contracts or unexpired leases effected by this Plan, and any document
or agreement executed pursuant to this Plan, shall be deemed null and void; and (c) nothing contained in
the Plan shall: (i) constitute a waiver or release of any Claims or Interests; (ii) prejudice in any manner the
rights of the Debtors, the Estates, or any other Entity; or (iii) constitute an admission, acknowledgement,
offer, or undertaking of any sort by the Debtors, the Estates, or any other Entity.
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12.6. Severability of Plan Provisions upon Confirmation.
If, prior to the entry of the Confirmation Order, any term or provision of this Plan is held
by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the
Debtors shall have the power to alter and interpret such term or provision to make it valid or enforceable to
the maximum extent practicable, consistent with the original purpose of the term or provision held to be
invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted.
Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions
of this Plan will remain in full force and effect and will in no way be affected, impaired or invalidated by
such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination
and shall provide that each term and provision of this Plan, as it may have been altered or interpreted in
accordance with the foregoing, is (a) valid and enforceable pursuant to its terms; (b) integral to this Plan
and may not be deleted or modified without the consent of the Debtors or the Wind Down Estates (as the
case may be); and (3) nonseverable and mutually dependent.
12.7. 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 herein, the laws of the State of
Delaware, without giving effect to the principles of conflict of laws, shall govern the rights, obligations,
construction, and implementation of this Plan, any agreements, documents, instruments, or contracts
executed or entered into in connection with this Plan (except as otherwise set forth in those agreements, in
which case the governing law of such agreement shall control); provided, that corporate or limited liability
company governance matters relating to the Debtors shall be governed by the laws of the state of
incorporation or formation (as applicable) of the applicable Debtor.
12.8. Time.
In computing any period of time prescribed or allowed by this Plan, unless otherwise set
forth herein or determined by the Bankruptcy Court, the provisions of Bankruptcy Rule 9006 shall apply.
12.9. 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 this Plan. The Debtors and all holders of Claims or Interests receiving distributions
pursuant to this Plan and all other parties in interest are authorized to 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 this Plan.
12.10. Immediate Binding Effect.
Notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon the
occurrence of the Effective Date, the terms of this Plan and the Plan Supplement shall be immediately
effective and enforceable and deemed binding upon and inure to the benefit of the Debtors, the Wind Down
Estates, the holders of Claims and Interests, the Released Parties, the Exculpated Parties, and each of their
respective successors and assigns, including, without limitation, the Plan AdministratorWind Down
Officer.
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12.11. Successors and Assigns.
The rights, benefits, and obligations of any Person named or referred to in this Plan shall
be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or permitted
assign, if any, of each Entity.
12.12. Entire Agreement.
On the Effective Date, this Plan, the Plan Supplement and the Confirmation Order shall
supersede 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.
12.13. Notices.
All notices, requests and demands to or upon the Debtors to be effective shall be in writing
(including by facsimile transmission) 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 facsimile transmission,
when received and telephonically confirmed, addressed as follows:
(i) if to the Debtors or the Plan AdministratorWind Down Officer:
Kabbage Inc. d/b/a KServicing
925B Peachtree Street NE, Suite 383
Atlanta, GA 30309
Attention: Laquisha Milner
Telephone: (678) 566-9000
- and –
Richards, Layton & Finger, P.A.
One Rodney Square
920 N. King Street
Wilmington, Delaware 19801
Attn: Daniel J. DeFranceschi
Amanda R. Steele
Zachary I. Shapiro
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
-and-
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attn: Ray C. Schrock, P.C.
Candace M. Arthur
Natasha Hwangpo
Chase Bentley
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
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After the Effective Date, the Debtors have authority to send a notice to Entities that to
continue to receive documents pursuant to Bankruptcy Rule 2002, they 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 Entities who
have filed such renewed requests.
Dated: October 3December 30, 2022
By: /s/ Laquisha Milner
Name: Laquisha Milner
Title: Chief Executive Officer
KABBAGE, INC. (D/B/A KSERVICING)
KABBAGE CANADA HOLDINGS, LLC
KABBAGE ASSET SECURITIZATION LLC
KABBAGE ASSET FUNDING 2017-A LLC
KABBAGE ASSET FUNDING 2019-A LLC
KABBAGE DIAMETER, LLC
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RLF1 28410173v.128018297V.1
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