Harvest Sherwood Food Distributors - Chapter 11 Plan Terms

Plan Terms

Overview

• Harvest Sherwood Food Distributors, Inc. and its Debtor Affiliates (collectively, the “Debtors”), which filed voluntary chapter 11 petitions on May 5, 2025 (the “Petition Date”), jointly propose this third amended joint chapter 11 plan, with technical and non-substantive modifications (the “Plan”), under section 1121 of the Bankruptcy Code, and are the proponents of the Plan within the meaning of section 1129. The Plan was filed August 3, 2026 [Docket No. 1131] and executed by Eric Kaup, Chief Restructuring Officer, on behalf of each Debtor.
  • The Debtor Affiliates include Del Mar Holding LLC, Del Mar Acquisition Inc., Surfliner Holdings, Inc., Harvest Meat Company, Inc., LAMCP Capital, LLC, Western Boxed Meats Distributors, Inc., Cascade Food Brokers, Inc., Hamilton Meat, LLC, SFD Acquisition LLC, SFD Transportation Corp., Sherwood Food Distributors, L.L.C., and SFD Company LLC.
  • The Plan must be in form and substance acceptable to the Debtors, the Plan Funders — certain funds managed by Atlas Grove Management, LLC — and the official committee of unsecured creditors appointed by the U.S. Trustee on May 21, 2025 (the “Committee”).
• The Plan is a liquidating construct: substantially all assets vest in a Liquidating Trust on the Effective Date, the Plan Funders provide an Exit Capital Facility to fund distributions and the Wind-Down, and the Liquidating Trust administers claims reconciliation, prosecutes Retained Causes of Action, and dissolves the Estates.
• Supplemental agreements and documents referenced in the Plan and Disclosure Statement are available on the Bankruptcy Court’s docket and on the Debtors’ case information website: https://dm.epiqll.com/case/harvestsherwood/info.
• Reference is made to the Third Amended Disclosure Statement [Docket No. 949] for the Debtors’ history, business, prepetition capital structure, and Liquidation Analysis, as well as a summary and analysis of the Plan and the distributions to be made under it.
• Epiq Corporate Restructuring, LLC serves as Claims and Noticing Agent [Docket No. 66]. Sidley Austin LLP is counsel to the Debtors; Akin Gump Strauss Hauer & Feld LLP is counsel to the Plan Funders; McDermott Will & Schulte LLP is counsel to the Committee.
• An initial draft of the Plan Supplement — which may include the Schedule of Retained Causes of Action, the Liquidating Trust Agreement, and other contemplated documentation — will be filed by the Voting Deadline.

Structure and Separate Plans

• Notwithstanding the combination of separate plans for purposes of economy and efficiency, the Plan constitutes a separate chapter 11 plan for each Debtor; if the Bankruptcy Court does not confirm the Plan as to one or more Debtors, it may still confirm the Plan as to any other Debtor satisfying section 1129.
• The Plan is premised on administrative consolidation of the Debtors solely for purposes of voting, tabulation, Confirmation, and the resulting treatment of Claims and Interests and all distributions, including Plan Distributions and subsequent Cash distributions by the Liquidating Trust.
  • Such consolidation does not constitute a transfer of assets or liabilities between Debtors for any other purpose, and each Debtor will continue to maintain its separate corporate existence for all purposes other than the treatment of Claims and Interests.
  • Solely for voting, tabulation, Confirmation, and distribution purposes: (1) Claims and Interests in each Class are deemed merged and treated against the Debtors on a consolidated basis; (2) each Claim or Interest is deemed a single Claim against, or Interest in, the consolidated Debtors; (3) any Claim based on a guaranty by one Debtor of another Debtor’s obligations is deemed eliminated and extinguished, so that the Claim, any guarantee, and any joint or several liability are treated as one obligation of the consolidated Debtors; and (4) each Holder is entitled to a single recovery regardless of whether it filed Proofs of Claim against multiple Debtors or holds Claims against multiple Debtors on the same debt.
  • The consolidation does not affect subordination provisions in any agreement, the ability of the Debtors or the Liquidating Trustee to seek subordination under section 510 or other applicable law, the rights, benefits, privileges, liens, security interests, or claims of the Debtors or the Liquidating Trust, obligations under contracts, licenses, or leases entered into during the Chapter 11 Cases or assumed under the Plan, the vesting of assets in the Liquidating Trust, or guarantees required to be maintained after the Effective Date; nor does it change the organizational structure of the Debtors’ business enterprise, constitute a change of control, cause a merger or consolidation of legal entities, or cause a transfer of assets.
• Upon the Effective Date, the provisions of the Plan constitute a good faith compromise and settlement of all Claims, Interests, Causes of Action, and controversies relating to the contractual, legal, and subordination rights that a Holder may have with respect to any Allowed Claim or Allowed Interest, with the Plan deemed a Bankruptcy Rule 9019 motion and entry of the Confirmation Order constituting Court approval and a finding that the compromise is fair, equitable, reasonable, and in the best interests of the Debtors, their Estates, and Holders.

DIP Financing

• The DIP Facility is a senior secured superpriority debtor-in-possession financing facility in the aggregate principal amount of $150 million, secured by a first lien, governed by a Senior Secured Debtor-in-Possession Credit Agreement dated as of June 2, 2026 with the lenders party thereto and Atlas Grove Management, LLC, as DIP Agent.
  • DIP Collateral comprises all prepetition and postpetition property of the Debtors, whether existing on the Petition Date or thereafter acquired and wherever located, including the Antitrust Litigation Claims and the Sprouts Farmers Market Litigation Claims, and proceeds from the disposition thereof.
  • DIP Claims are all Claims arising under, derived from, or based upon the DIP Loan Documents; they carry the priorities set forth in the DIP Credit Agreement, the DIP Facility Documents, and the DIP Order, and are limited by any caps, limitations, or other restrictions set forth in the DIP Facility Documents.
  • The DIP Facility replaced prior financing: the Prepetition Credit Agreement dated June 17, 2022 (as amended October 10, 2024 and March 18, 2025) with JPMorgan Chase Bank, N.A. as Prepetition Agent, and the Prior DIP Credit Agreement dated May 12, 2025 with JPMorgan Chase Bank, N.A. as Prior DIP Agent. The Prepetition Lenders and Prepetition Agent, together with the Prior DIP Lenders and Prior DIP Agent, constitute the Initial DIP Secured Parties.
• Except to the extent a Holder agrees to different treatment, on the Effective Date each Holder of an Allowed DIP Claim will receive, in full and final satisfaction, (i) payment in full in Cash or (ii) such other treatment agreed to by the Debtors and the Holders of Allowed DIP Claims.
• DIP Lender Expenses — the reasonable and documented fees, costs, and expenses of Akin Gump Strauss Hauer & Feld LLP and Venable LLP, as counsel to the DIP Agent — will constitute Allowed Administrative Claims with priority over all administrative expenses of the kind specified in sections 503(b) and 507, other than Professional Fee Claims.
  • Payable in full in Cash no later than the Effective Date, without any fee application or Bankruptcy Court review or approval.
  • Not discharged, modified, or otherwise affected by the Plan, and not subject to disgorgement, setoff, disallowance, impairment, challenge, contest, attack, rejection, recoupment, reduction, defense, counterclaim, subordination, recharacterization, avoidance, or other claim or cause of action of any nature under the Bankruptcy Code or applicable non-bankruptcy law.
  • Invoices substantiating DIP Lender Expenses payable on the Effective Date must be provided to the Plan Funders beforehand, and may be provided in summary format only, without time entries or detailed narratives, consistent with the DIP Facility Documents and past practice.

Exit Capital Facility

• On the Effective Date, and subject to definitive documentation, the Plan Funders will provide the Exit Capital Facility, consisting of (i) the New-Money Exit Capital Facility and (ii) the Contingent Exit Capital Facility, pursuant to an Exit Capital Commitment Agreement dated as of June 1, 2026 by and among the Debtors and the Plan Funders. The Debtors sought authority to enter the agreement by motion at Docket No. 761.
  • The Contingent Exit Capital Facility is a funding commitment in the amount of the Capital Provider Settlement Payment, drawn on the Effective Date solely in that amount and solely to fund that payment, and terminating thereupon.
  • Each Plan Funder has committed severally, and not jointly, to its portion of the New-Money and Contingent commitments.
  • Proceeds may be used for any purpose permitted by the Exit Capital Facility Documents, as and to the extent authorized by the Liquidating Trust Advisory Board.
  • The Exit Capital Facility Documents — the Exit Capital Commitment Agreement, the Exit Capital Order, and any other documents the Plan Funders require — must be in form and substance acceptable to the Plan Funders in their sole and absolute discretion, subject to further acceptance by the Committee not to be unreasonably withheld, conditioned, or delayed. The Exit Capital Order is a Final Order approving the Debtors’ entry into and performance under the Exit Capital Commitment Agreement, including approval of the Exit Capital Fees and Expenses.
• As consideration for providing or committing to provide the Exit Capital Facility, each Plan Funder will receive on the Effective Date (a) its Pro Rata share of the Series A Liquidating Trust Interests, based on such Plan Funder’s share of the Exit Capital Commitments, and (b) the Exit Capital Commitment Fee and other consideration under the Exit Capital Commitment Agreement.
• Exit Capital Fees and Expenses consist of:
  • The Exit Capital Commitment Fee, equal in the aggregate to 3.00% of the sum of each Plan Funder’s Exit Capital Commitment, allocated Pro Rata among the Plan Funders based on their respective commitments.
  • The Exit Capital Expense Reimbursement, covering reasonable and documented fees and expenses (including financial advisors’ and attorneys’ fees) incurred by the Plan Funders and their current or contemplated limited partners, members, and affiliates, whether incurred before or after consummation, in connection with (A) negotiating and drafting the Exit Capital Commitment Agreement, the Exit Capital Facility and related documents, the Plan, the Disclosure Statement, and related transaction documentation — including in connection with any litigation against the Debtors to enforce or protect rights and remedies thereunder — and (B) litigation activities by the Plan Funders in support of confirmation of the Plan and adoption of the Disclosure Statement in coordination with the Debtors.
    • Fees and expenses in respect of clause (A) are capped at $1,350,000; the cap does not apply to any DIP Lender Expenses, including fees and expenses incurred in connection with Section 9.03 of the DIP Credit Agreement.
• The Exit Capital Fees and Expenses constitute Allowed Administrative Claims and, except as otherwise set forth in the order approving the Exit Capital Commitment Motion, will be paid in full in Cash no later than the Effective Date without any Proof of Claim, fee application, or Bankruptcy Court review, and will not be discharged, modified, or otherwise affected by the Plan, and will not be subject to disgorgement, setoff, disallowance, impairment, challenge, contest, attack, rejection, recoupment, reduction, defense, counterclaim, subordination, recharacterization, avoidance, or other claim or cause of action of any nature under the Bankruptcy Code or applicable non-bankruptcy law.
• The Confirmation Order will constitute approval of the Exit Capital Facility and authorization for the Post-Effective Date Debtors and the Liquidating Trust to enter into and perform under the Exit Capital Facility Documents, which will constitute legal, valid, binding, and enforceable obligations.
  • The financial accommodations extended thereunder are deemed extended in good faith, for legitimate business purposes, are reasonable, and are not subject to avoidance, recharacterization, or subordination (including equitable subordination), nor do they constitute preferential or fraudulent transfers or other voidable transfers or obligations.

Exit Capital Marketing Process

• Prior to the Voting Deadline, the Debtors will solicit alternative proposals for exit financing sufficient to (i) compensate the Liquidating Trustee; (ii) pay reasonable professional fees of the Liquidating Trust; (iii) pay all Allowed Administrative Claims, Allowed DIP Claims, and Allowed Priority Tax Claims; (iv) pay all Allowed Other Secured Claims and Other Priority Claims, as applicable; and (v) pay any other reasonable fees, costs, and expenses to be incurred by the Liquidating Trust in connection with the Wind-Down.
• Any alternative proposal must be submitted in writing to the Debtors, the Plan Funders, and the Committee, and actually received prior to the Voting Deadline, and must satisfy the requirements for an Alternative Transaction set forth in the Exit Capital Commitment Agreement.
  • If the Debtors select an alternative proposal, the definitive terms and documentation will be filed in advance of the Voting Deadline.

Capital Provider Settlement

• The Plan incorporates and effectuates a compromise and settlement (the “Capital Provider Settlement”) resolving all Claims, Interests, Causes of Action, and disputes between (i) the Debtors, the Estates, the Committee, the Plan Funders, the DIP Agent, the DIP Lenders, and the Initial DIP Secured Parties, together with their respective Related Parties, on the one hand, and (ii) the Capital Providers and their Related Parties, on the other. “Capital Providers” has the meaning set forth in the JBS Settlement Order or the Pilgrim’s Pride Settlement Order, as applicable.
  • The settled matters include the Capital Providers’ Appeal — the appeal pending before the U.S. District Court for the Northern District of Texas (Civ. Act. No. 3:25-cv-03325-K) of the Bankruptcy Court’s order dismissing the adversary proceeding (Adv. Pro. No. 25-08008-sgj) commenced by the Capital Providers against the Debtors in respect of the Capital Provision Agreement — and any Claims and Causes of Action arising under or related to the Capital Provision Agreement, the December 21, 2022 agreement between Hamilton Meat, L.L.C., Harvest Meat Company, Inc., Harvest Sherwood Food Distributors, Inc., Sherwood Food Distributors, L.L.C., and Western Boxed Meat Distributors, Inc., on the one hand, and Blakemore Investments LLC and Milwaukee Investments LP, on the other.
• On the Effective Date, the Debtors, the Post-Effective Date Debtors, or the Liquidating Trust will pay the Capital Providers a Capital Provider Settlement Payment of $9.5 million in Cash by wire transfer of immediately available funds, funded solely by a draw on the Contingent Exit Capital Facility.
  • The payment is the sole and exclusive recovery of the Capital Providers under the Plan or otherwise from the Debtors, the Post-Effective Date Debtors, the Estates, the Liquidating Trust, the Liquidating Trust Assets, the DIP Agent, the DIP Lenders, the Initial DIP Secured Parties, and their Related Parties; the Capital Providers will not receive or retain any other payment, distribution, or property on account of any alleged Claim, Interest, or Cause of Action arising from or relating to the Capital Provision Agreement, the Capital Providers’ Appeal, or the Chapter 11 Cases.
  • Reciprocally, none of the Debtors, the Post-Effective Date Debtors, the Estates, the Liquidating Trust, the Liquidating Trust Assets, the DIP Agent, the DIP Lenders, the Initial DIP Secured Parties, or their Related Parties will be entitled to any payment, distribution, or property from the Capital Providers on account of such matters.
• Upon payment of the Capital Provider Settlement Payment, and without further action by any Person or order of the Bankruptcy Court:
  • No party will receive any Series B-3 or Series B-4 Liquidating Trust Interests, all references in the Plan to those interests will be of no further force or effect, and Class 4 (Non-Recourse Claims) will be considered and treated as vacant and deemed eliminated from the Plan.
  • All commitments under the Contingent Exit Capital Facility in excess of the Capital Provider Settlement Payment will be deemed irrevocably terminated and released, the parties will take all steps necessary to terminate the Claw-Back LOC and the Escrow Agreement (each as defined in the DIP Order), and upon such termination the Liquidating Trustee will be deemed to have irrevocably released such commitments for all purposes, including for purposes of the definition of “Return Threshold.”
  • The mutual releases among the Debtors, the Estates, the Committee, the Plan Funders, the DIP Agent, the DIP Lenders, the Initial DIP Secured Parties, the Capital Providers, and their respective Related Parties will become effective at the times and subject to the conditions set forth in the Confirmation Order. Those releases are the only releases provided by the Capital Providers and their Related Parties under the Plan, as the Capital Providers are not, and will not be deemed to be, Releasing Parties.
• Entry of the Confirmation Order constitutes approval of the Capital Provider Settlement under section 1123(b)(3)(A) and Bankruptcy Rule 9019 and a finding that it is fair, equitable, reasonable, negotiated in good faith and at arm’s length, and in the best interests of the Debtors, the Estates, and all Holders of Claims and Interests.

Other Settlements

• The Settlement Payments consist of the JBS Settlement Consideration and the Pilgrim’s Pride Settlement Payment, as defined in the respective Settlement Orders:
  • The JBS Settlement Order approving a settlement agreement with JBS USA Food Company, JBS USA Food Company Holdings, and Swift Pork Company [Docket No. 409].
  • The Pilgrim’s Pride Settlement Order approving a settlement agreement with Pilgrim’s Pride Corporation [Docket No. 488].

Liquidating Trust

• On the Effective Date, the Debtors will be deemed to transfer to the Liquidating Trust all right, title, and interest in the Liquidating Trust Assets free and clear of all Liens, charges, Claims, encumbrances, and interests, in accordance with section 1141.
  • Liquidating Trust Assets comprise all assets of any kind of the Debtors or Post-Effective Date Debtors, tangible or intangible and irrespective of whether held or controlled by third parties, including the Retained Causes of Action and, to the extent applicable, the proceeds of the Exit Capital Facility, as well as any insurance policies covering potential liabilities of the Liquidating Trust, the Liquidating Trustee, and the Liquidating Trust Advisory Board (whether D&O, errors and omissions, or otherwise) and the proceeds thereof.
  • Execution of the Liquidating Trust Agreement will effect a transfer, assignment, and vesting in the Liquidating Trust of all attorney-client privileges, work product protections, joint client, mediation, common interest and joint defense privileges, and all other privileges, immunities, or protections from disclosure held by the Debtors, any prepetition or postpetition committee or subcommittee of any Debtor’s board or equivalent governing body and their predecessors, and the Committee, related in any way to the Liquidating Trust Assets or their analysis or prosecution.
• META Advisors LLC will serve as Liquidating Trustee, with James Carr as its representative, subject to the supervision and control of the Liquidating Trust Advisory Board.
  • The Liquidating Trustee, subject to the consent of the Liquidating Trust Advisory Board, will be responsible for, among other things, administering and paying taxes and filing tax returns and representing the Debtors before taxing authorities; distributing information statements required for tax purposes; filing an application for a final decree closing the Chapter 11 Cases; and making distributions to Professionals for Allowed Professional Fee Claims from the Professional Fee Account.
• The Liquidating Trust Advisory Board is a three-member board appointed on the Effective Date, comprised of two members appointed by the Plan Funders in their sole discretion and the Committee Designee, appointed by the Committee in its sole discretion.
  • The board will oversee, review, and direct the activities of the Liquidating Trust and the Liquidating Trustee and the Liquidating Trustee’s performance of its responsibilities under the Plan and the Liquidating Trust Agreement, and will review and approve or reject the Liquidating Trustee’s proposed decisions, acting with the consent of a majority of its members. Governance matters not set forth in the Plan, including replacement mechanics for the Liquidating Trustee and board members, will be set forth in definitive documents acceptable to the Plan Funders in their sole and exclusive discretion and to the Committee (such acceptance not to be unreasonably withheld, conditioned, or delayed).
  • Upon final payment of all amounts to the Series B-1, B-2, B-3, and B-4 Liquidating Trust Interests pursuant to the Distribution Schedule, the Committee Designee will be replaced with a member appointed by the other two members with the consent of the Plan Funders.
• The Liquidating Trust Agreement must be in substance and form acceptable to the Plan Funders in their sole and exclusive discretion and to the Committee (such acceptance not to be unreasonably withheld, conditioned, or delayed), will provide for the appointment of the Liquidating Trustee, and will be included in the Plan Supplement. It will generally provide for:
  • The irrevocable transfer of all of the Debtors’ rights, title, and interest in the Liquidating Trust Assets to the Liquidating Trust.
  • The powers, rights, and duties of the Liquidating Trustee and the Liquidating Trust Advisory Board, including the investigation and prosecution of Retained Causes of Action; the administration and pursuit of Liquidating Trust Assets; procedures for reconciliation and allowance of Claims and Interests; distributions to Holders of Allowed Claims and Allowed Interests; retention of professionals; payment of and reserve for all expenses of the Liquidating Trust, solely from Liquidating Trust Assets, payable before any Plan Distribution; the authority to obtain additional funding; and customary limitation of liability and indemnification provisions.
• The Liquidating Trust will undertake the liabilities, obligations, and responsibilities of the Post-Effective Date Debtors for all Claims and Interests, and distributions in accordance with the Liquidating Trust Agreement will be the sole source of recovery against the Post-Effective Date Debtors and their Estates, with Holders having no other or further recourse.
  • In no event will Liquidating Trust Beneficiaries recover more than the full amount of their Allowed Claims from the Liquidating Trust, except as provided in the Distribution Schedule.
• From and after the Effective Date, the Liquidating Trust will pay Liquidating Trust Expenses — reasonable and documented fees, costs, and expenses authorized by the Liquidating Trust Advisory Board and incurred by the Liquidating Trust, the board, or the Liquidating Trustee (or any Disbursing Agent, person, entity, or professional engaged by them) — in the ordinary course without Bankruptcy Court approval. The Debtors and the Post-Effective Date Debtors will not be responsible for any costs, fees, or expenses of the Liquidating Trust.
• The Liquidating Trust is intended to be treated for U.S. federal income tax purposes in part as a liquidating trust described in Treasury Regulation § 301.7701-4(d) and in part as one or more Disputed Claims reserves treated as disputed ownership funds described in Treasury Regulation § 1.468B-9 (each taxable as a “qualified settlement fund” if all assets of the reserve are passive assets).
  • The Liquidating Trust Agreement will require termination no later than five years after the Effective Date, subject to Bankruptcy Court-approved extensions of finite periods not to exceed six months each and no more than four extensions absent a favorable IRS ruling that further extension would not adversely affect grantor trust status.
  • It will also limit the trust’s investment powers; limit business operations to activities reasonably necessary to and consistent with its purpose; prohibit retention of Cash or Cash equivalents in excess of amounts reasonably necessary to meet Claims and contingent liabilities or maintain asset value; and require at least annual distribution of net income and net proceeds from Liquidating Trust Assets in excess of such amounts.
• For U.S. federal income tax purposes, the transfer of assets to the Liquidating Trust is treated in part as a transfer by the Debtors to Holders of Allowed Claims and Allowed Interests, followed by those Holders’ deemed transfer to the trust in exchange for interests, and in part as a transfer to one or more Disputed Claims reserves.
  • Holders of Allowed Claims and Allowed Interests are treated as grantors and deemed owners of their respective shares of trust assets and must include in income their shares of the income, deductions, gains, losses, and credits attributable to those assets.
  • Asset values are determined by the Liquidating Trust Advisory Board in consultation with the Liquidating Trustee and must be used consistently by all parties for all U.S. federal, state, and local income tax purposes, including in recognizing gain or loss on Allowed Claims and Interests and on any subsequent disposition of an asset.
  • Assets reserved for Disputed Claims are treated as one or more Disputed Claims reserves subject to entity-level tax; no Holder is treated as grantor or deemed owner of a reserved asset until it receives or is allocated an interest in that asset. The Liquidating Trust will file all tax returns on a basis consistent with this treatment and will pay all taxes owed from Liquidating Trust Assets.

Liquidating Trust Interests

• The Liquidating Trust Agreement provides for seven series of beneficial interests, issued to the applicable Holders of Allowed Claims or Allowed Interests on the Effective Date based on the amount of each Holder’s corresponding Allowed Claim or Interest relative to the aggregate amount in such series:
  • Series A (Exit Claims); Series B-1 (Qualified Holder General Unsecured Claims); Series B-2 (Non-Qualified Holder General Unsecured Claims); Series B-3 (Qualified Holder Non-Recourse Claims); Series B-4 (Non-Qualified Holder Non-Recourse Claims); Series C (Subordinated Claims); and Series D (Existing Equity Interests).
  • Series A Liquidating Trust Interests will not be issued to any party other than the Plan Funders, nor will any interests senior to Series A be issued, in each case absent the express written consent of the Plan Funders.
• The interests are not intended to constitute “securities” and will not be registered under the Securities Act or any state securities law; if determined to be securities, the exemption provisions of section 1145 of the Bankruptcy Code will apply.
• The interests will not be certificated. The Plan states both that the interests are non-transferable other than by will, intestate succession, or operation of law or as set forth in the Plan, and that they are transferable except as set forth in the Plan; in either case transfers are subject to the following restrictions.
  • For any proposed transfer of Series A, Series B-1, and Series B-3 interests, other than transfers to the Plan Funders or their assignee, the proposed transferee must deliver to the Liquidating Trust a written certification that it is an “accredited investor” as defined in Regulation D under the Securities Act.
  • A transfer that would require the Liquidating Trust to file reports under sections 13(a) or 15(d) of the Securities Exchange Act, or that could reasonably be expected to cause the trust to fail to qualify as a liquidating trust treated as a grantor trust under Treasury Regulation § 301.7701-4(d), is prohibited and void ab initio.
  • A proposed transferor must deliver a Transfer Notice to the Liquidating Trust at least 14 calendar days before the proposed effective date, identifying the transferor and transferee, the series and amount, the proposed effective date, and any required certification. The Liquidating Trustee, with the consent of the Liquidating Trust Advisory Board, may object in writing within ten calendar days on Exchange Act registration or liquidating-trust-qualification grounds, in which case the transfer is not effectuated and, if purportedly effectuated, is void ab initio; unresolved objections may be brought before the Bankruptcy Court. Absent a timely objection the transfer may proceed solely on the noticed terms, and any transfer effectuated without compliance is void ab initio. The Liquidating Trustee, with board consent, may enforce these restrictions, including by denying a requested transfer.
• A “Qualified Holder” is a Holder of an Allowed General Unsecured Claim or Allowed Non-Recourse Claim that delivers a Certification Form to the Debtors on or prior to the Certification Deadline stating that it is an accredited investor; each Plan Funder is deemed a Qualified Holder regardless of delivery.
  • Any such Holder that does not provide the Certification Form by the Certification Deadline is deemed a Non-Qualified Holder.

Distribution Schedule

• On and after the Effective Date, Distributable Cash will be allocated pursuant to the Liquidating Trust Agreement as follows:
  • First, 100% Pro Rata to Holders of Series A Liquidating Trust Interests until Return Threshold A has been reached.
  • Second, 20% Pro Rata to Holders of Series A Liquidating Trust Interests and 80% to the Junior Distribution Pool, until holders of the Series B-1, B-2, B-3, B-4, and Series C interests have been paid in full.
  • Third, 80% Pro Rata to Holders of Series A Liquidating Trust Interests and 20% to holders of Series D Liquidating Trust Interests.
• The Return Threshold equals (a) the Exit Capital New-Money Commitment, plus (b) the amount of the Capital Provider Settlement Payment, plus (c) a 3.5% rate of return, accruing daily and compounding continuously, on any drawn commitments under the Contingent Exit Capital Facility from the Effective Date through the date Return Threshold A is reached.
  • Return Threshold A is the point at which holders of Series A Liquidating Trust Interests have received aggregate distributions equal to 1.00x the Return Threshold, calculated in a manner giving credit for the repayment of accrued interest.
  • Upon payment of the Capital Provider Settlement Payment and termination of the remaining Contingent Exit Capital Facility commitments, no fee or rate of return will accrue on any undrawn commitment thereunder.
• Within the Junior Distribution Pool, Distributable Cash remaining after allocation to the Series A interests will be distributed:
  • First, Pro Rata to holders of Series B-1, B-2, B-3, and B-4 interests until they have received Distributable Cash equal in the aggregate to their Allowed Claims, including (i) post-petition interest at the greater of the contract rate (if applicable) and the federal judgment rate on Allowed General Unsecured Claims and (ii) post-petition interest at the applicable federal judgment rate on any Allowed Non-Recourse Claims.
    • Series B-1 and B-2 are pari passu with each other in all respects, and Series B-3 and B-4 are pari passu with each other in all respects, within the applicable category of Distributable Cash, receiving identical rights and entitlements except to reflect the Qualified/Non-Qualified Holder distinction and the source limitation on Series B-3 and B-4.
  • Second, Pro Rata to holders of Series C interests until paid in the aggregate amount of their Allowed Subordinated Claims; holders of Series C interests receive no Distributable Cash until all Allowed General Unsecured Claims are paid in full, including all post-petition interest.
  • Third, Pro Rata to holders of Series D interests.
• Distributions on Series B-3 and B-4 interests are limited to their specified source of payment — in the case of the Capital Providers, the Prepetition Antitrust Litigation Claim Proceeds — and in no event may such holders recover from the general assets of the Debtors, the Post-Effective Date Debtors, or the Estates.
  • To the extent general assets remain available after Series B-1 and B-2 holders have received Distributable Cash equal in the aggregate to their Allowed Claims, including post-petition interest, such funds will be distributed to Series C holders and then to Series D holders.
  • Prepetition Antitrust Litigation Claim Proceeds means Distributable Cash derived solely from Proceeds (as defined in Exhibit A of the Capital Provision Agreement) of the Antitrust Litigation Claims (as defined in Annex II of the Capital Provision Agreement), and excludes Antitrust Litigation Claims against turkey, egg, and/or potato producers, or against any other producers, growers, processors, manufacturers, distributors, wholesalers, or suppliers not expressly included in Annex II.
• Distributable Cash is all Cash held as of the Effective Date or generated by monetization of the Liquidating Trust Assets thereafter, other than Cash necessary to (a) fund the Professional Fee Account; (b) pay Statutory Fees; (c) pay DIP Lender Expenses; (d) pay Exit Capital Fees and Expenses; (e) pay Liquidating Trust Expenses; (f) pay Allowed Other Secured Claims; (g) pay regular installment payments of Allowed Other Priority Claims; and (h) fund the Post-Effective Budget and Wind-Down.

Classification and Treatment of Claims and Interests

• Class 1 (Other Secured Claims): Each Holder of an Allowed Other Secured Claim will receive, at the option of the Liquidating Trustee (with the consent of the Plan Funders or the Liquidating Trust Advisory Board, as applicable), either (a) payment in full in Cash on the Effective Date or as soon as reasonably practicable after the Claim becomes Allowed, or (b) Reinstatement or other treatment rendering the Claim Unimpaired under section 1124.
  • Unimpaired; conclusively presumed to accept and not entitled to vote.
• Class 2 (Other Priority Claims): Each Holder of an Allowed Other Priority Claim will receive, at the option of the Liquidating Trustee (with the consent of the Plan Funders or the Liquidating Trust Advisory Board, as applicable), (a) payment in full in Cash as soon as reasonably practicable after the Claim becomes Allowed; (b) Reinstatement or other treatment rendering the Claim Unimpaired under section 1124; or (c) other treatment consistent with section 1129(a)(9).
  • Unimpaired; conclusively presumed to accept and not entitled to vote.
• Class 3 (General Unsecured Claims): On the Effective Date, except to the extent a Holder agrees to less favorable treatment, each Holder of an Allowed General Unsecured Claim will receive:
  • If the Holder makes the Convenience Class Election, treatment in accordance therewith in lieu of Class 3 treatment; or
  • If the Holder does not make the Convenience Class Election, its Pro Rata share of the Series B-1 Liquidating Trust Interests (if a Qualified Holder) or the Series B-2 Liquidating Trust Interests (if a Non-Qualified Holder), each of which receives distributions pursuant to the Distribution Schedule.
  • Impaired and entitled to vote.
• Class 4 (Non-Recourse Claims): Each Holder of an Allowed Non-Recourse Claim will receive its Pro Rata share of the Series B-3 Liquidating Trust Interests (if a Qualified Holder) or the Series B-4 Liquidating Trust Interests (if a Non-Qualified Holder), each of which receives distributions pursuant to the Distribution Schedule.
  • Impaired and entitled to vote; as noted above, the Class is deemed eliminated upon payment of the Capital Provider Settlement Payment.
  • Non-Recourse Claims are unsecured Claims arising under or related to a prepetition agreement, instrument, or transaction that by its express terms is non-recourse to the Debtors and payable or enforceable only from a specified source of payment or fund, such that Holders have no recourse to the Debtors’ or the Estates’ general assets, and only to the extent the Bankruptcy Court determines that the agreement, instrument, or transaction grants the Holder an Allowed Claim. Excluded are any Claims of the Capital Providers classified and treated as Subordinated Claims under the Plan (the Plan text cross-references these as “Class 6 Subordinated Claims,” but Subordinated Claims are classified in Class 7 and Class 6 is Intercompany Claims).
• Class 5 (Convenience Class Claims): Each Holder of an Allowed Convenience Class Claim will receive Cash equal to its Pro Rata share of the Convenience Class Cash Pool of $1,340,000; if Class 5 votes to reject the Plan, each such Holder will receive the same treatment as if its Claims were Allowed General Unsecured Claims in Class 3.
  • The Convenience Class Threshold is $5,400. Convenience Class Claims are General Unsecured Claims of a Holder that makes the Convenience Class Election and whose General Unsecured Claims aggregate at or below the threshold, or that agrees to reduce its Claims to the threshold; Claims in excess of the threshold may not be sub-divided to receive treatment as multiple Convenience Class Claims.
  • Impaired and entitled to vote.
• Class 6 (Intercompany Claims): On the Effective Date, or as soon as reasonably practicable thereafter, all Allowed Intercompany Claims will either be cancelled, released, extinguished, and otherwise eliminated, with no Plan Distributions or retained property on account thereof, or Reinstated, in the discretion of the Liquidating Trustee and subject to majority consent of the Liquidating Trust Advisory Board.
  • Holders are conclusively presumed to accept or deemed to reject and are not entitled to vote.
• Class 7 (Subordinated Claims): Each Holder of an Allowed Subordinated Claim will receive its Pro Rata share of the Series C Liquidating Trust Interests, which receive distributions pursuant to the Distribution Schedule.
  • Subordinated Claims are Claims or Causes of Action subject to subordination to General Unsecured Claims under section 510, including Section 510(b) Claims and Claims subordinated under principles of equitable subordination pursuant to section 510(c).
  • Impaired and entitled to vote.
• Class 8 (Existing Equity Interests): Each Holder of an Existing Equity Interest — the existing Interests in Del Mar Holding, LLC, as Parent — will receive its Pro Rata share of the Series D Liquidating Trust Interests, which receive distributions pursuant to the Distribution Schedule.
  • Impaired and entitled to vote.
• Class 9 (Intercompany Interests): On the Effective Date, or as soon as reasonably practicable thereafter, all Allowed Intercompany Interests will either be cancelled, released, extinguished, and otherwise eliminated, with no Plan Distributions or retained property on account thereof, or Reinstated, in the discretion of the Liquidating Trust and subject to majority consent of the Liquidating Trust Advisory Board.
  • Classified as Impaired/Unimpaired; Holders are conclusively presumed to accept or deemed to reject and are not entitled to vote.
• Nothing in the Plan affects the rights of the Debtors, the Post-Effective Date Debtors, or the Liquidating Trust with respect to Unimpaired Claims, including all legal and equitable defenses to, and setoffs or recoupments against, such Claims.
• If a controversy arises as to whether any Claim or Class is Impaired, the Bankruptcy Court will determine it, after notice and a hearing, on or before the Confirmation Hearing.
• Allowance, classification, treatment, and distributions conform to the relative priority and rights of Claims and Interests under any contractual, legal, or equitable subordination rights, and the Debtors or the Liquidating Trust reserve the right to re-classify any Allowed Claim or Interest accordingly, including under section 510(b).
• If a Claim is subject to coverage under an Insurance Policy, payments on account of that Claim will be made first from the proceeds of the policy in accordance with its terms, with any balance treated under the Plan provisions governing the applicable Class.

Administrative Claims, Priority Tax Claims, and Statutory Fees

• In accordance with section 1123(a)(1), Administrative Claims (including Professional Fee Claims) and Priority Tax Claims are unclassified and excluded from the Classes.
• Except with respect to Other Administrative Claims — those that are Statutory Fees, DIP Lender Expenses, Exit Capital Fees and Expenses, or Professional Fee Claims — and except where already paid or where a Holder agrees to less favorable treatment (with the consent of the Plan Funders or the Liquidating Trust Advisory Board, as applicable), each Holder of an Allowed Administrative Claim will receive treatment consistent with section 1129(a)(9) on the applicable Plan Distribution Record Date.
  • Proofs of Claim seeking allowance and payment of Administrative Claims (other than Other Administrative Claims) must be filed and served on the Debtors or the Liquidating Trust and their counsel by the Administrative Claims Bar Date, which is 30 days after the Effective Date for Administrative Claims other than Professional Fee Claims and 45 days after the Confirmation Date for Professional Fee Claims. The Administrative Claims Bar Date does not apply to Claims arising under section 503(b)(9), which are governed by the General Bar Date, or to Claims held by a Debtor or a direct or indirect subsidiary of a Debtor.
  • The U.S. Trustee is not required to file an application for payment of an Administrative Claim for Statutory Fees, and, consistent with section 503(b)(1)(D), a governmental unit is not required to file a request for payment of an expense described in section 503(b)(1)(B) or (C) as a condition of allowance.
  • The burden of proof for allowance of Administrative Claims, other than DIP Lender Expenses and Exit Capital Fees and Expenses, remains on the Holder.
  • Holders that fail to timely file and serve will be forever barred, estopped, and enjoined from asserting Administrative Claims against the Debtors, the Liquidating Trust, the Liquidating Trustee, the Estates, or their assets and properties, and such Claims will be deemed disallowed as of the Effective Date absent contrary Bankruptcy Court order.
• Professionals (other than OCPs) seeking compensation for services rendered or expenses incurred through the Confirmation Date must file final fee applications on or before 45 days after the Confirmation Date (or such later time agreed with the Liquidating Trust), and will be paid in full in Cash, first from the Professional Fee Account and then from any Distributable Cash, including Cash proceeds of the Exit Capital Facility, in amounts Allowed by the Bankruptcy Court.
  • Objections to Professional Fee Claims must be filed and served no later than 21 days after the filing of the Professional Fee Claim.
  • On the Effective Date, the Debtors will establish and fund the Professional Fee Account — a non-interest-bearing escrow held and maintained by the Claims and Noticing Agent — with Cash equal to the Professional Fee Reserve Amount, the aggregate estimated accrued and unpaid Professional Fee Claims, whether billed or unbilled, as of the Effective Date.
    • The account is maintained in trust solely for Professionals, and its funds are not property of the Estates, the Post-Effective Date Debtors, or the Liquidating Trust.
    • Professionals must deliver reasonable estimates of unpaid fees and expenses to the Debtors and the Plan Funders no later than two Business Days before the anticipated Effective Date, without limiting their final requests; if a Professional does not provide an estimate, the Debtors may estimate for it.
    • Any surplus remaining after all Allowed Professional Fee Claims are paid is promptly paid to the Liquidating Trust; if the account is insufficient, the remaining Allowed Professional Fee Claims are paid by the Liquidating Trust as Allowed Administrative Claims. The account may not be used to pay any Secured, Priority, or Administrative Claims until all Professional Fee Claims are satisfied or reserved for.
  • Professional Fee Claims of OCPs are paid pursuant to the OCP Order; to the extent not Allowed under that order by the Effective Date, they are paid in Cash from the Professional Fee Account as soon as reasonably practicable after allowance.
  • From and after the Confirmation Date, the Debtors or the Liquidating Trust will pay, in the ordinary course and without further Bankruptcy Court approval, the reasonable and documented legal, professional, and other fees and expenses related to implementation of the Plan and Consummation incurred by the Debtors, the Liquidating Trust, or the Committee, and any requirement that Professionals comply with sections 327 through 331, 363, and 1103 in seeking retention or compensation for post-Confirmation Date services terminates.
  • Professional Fee Claims include Success Fees payable under the Meru Engagement Letter and the Hilco Engagement Letter on account of distributions to Holders of General Unsecured Claims, or as otherwise set forth pursuant to amendments to such letters.
• Except where already paid or where a Holder agrees to less favorable treatment (with the consent of the Plan Funders or the Liquidating Trust Advisory Board, as applicable), each Holder of an Allowed Priority Tax Claim will receive Cash equal to the aggregate amount of such Claim on the applicable Plan Distribution Record Date. To the extent an Allowed Priority Tax Claim is not due and owing on the Effective Date, it will be paid in accordance with any agreement between the Liquidating Trust and the Holder, as due under applicable nonbankruptcy law, in the ordinary course, or on other treatment consistent with section 1129(a)(9)(C).
• The Debtors will file all preconfirmation monthly reports and pay all preconfirmation Statutory Fees under 28 U.S.C. § 1930(a) on or before the Effective Date; thereafter, the Post-Effective Date Debtors and the Liquidating Trust will file all quarterly reports and pay all such fees until the earlier of each Debtor’s case being closed, dismissed, or converted to chapter 7.

Sources of Consideration, Vesting, and Cancellation

• The Debtors, the Post-Effective Date Debtors, or the Liquidating Trust, as applicable, will fund the transactions and distributions under the Plan from the Exit Capital Facility.
• On the Effective Date, all property in each Estate, all Executory Contracts and Unexpired Leases assumed but not assigned, and any property acquired by the Debtors, including Interests held in non-Debtor subsidiaries, will vest in the Liquidating Trust free and clear of all Liens, Claims, charges, or other encumbrances unless expressly provided otherwise by the Plan or the Confirmation Order.
• On the Effective Date, any certificate, share, note, bond, indenture, purchase right, option, warrant, or other instrument or document evidencing or creating any indebtedness or obligation of, or ownership interest in, the Debtors giving rise to any Claim or Interest will be deemed cancelled, discharged, and of no force or effect without further action or approval of the Bankruptcy Court, other than instruments Reinstated pursuant to the Plan, and the Debtors’ obligations under the related governing agreements, indentures, and organizational documents will be released and discharged.
  • Any such indenture or agreement governing the rights of a Holder nonetheless continues in effect to allow that Holder to appear and be heard in the Chapter 11 Cases or any other proceeding and to enforce obligations owed to it thereunder.
  • Any provision in any document, instrument, lease, or agreement that causes or purports to cause a default, termination, waiver, or forfeiture by reason of the Plan’s cancellations, terminations, satisfactions, releases, or discharges is null and void solely in that connection; nothing cancels the obligations of the Debtors or their counterparties under assumed Executory Contracts or Unexpired Leases or under Reinstated Claims or Interests.
• To the fullest extent permitted by section 1146(a), transfers of property under the Plan — including issuances, Reinstatements, distributions, or exchanges of debt or equity; the Wind-Down; the creation, modification, consolidation, termination, refinancing, or recording of mortgages, deeds of trust, or other security interests; the making, assignment, or recording of leases or subleases; and the making, delivery, or recording of deeds and other transfer instruments — are exempt from document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, sales or use tax, UCC filing or recording fees, regulatory filing or recording fees, and similar taxes, fees, and governmental assessments, and filing and recording officers must accept the instruments without such payment.
• Upon entry of the Confirmation Order, the Debtors or the Liquidating Trust are authorized to execute, deliver, file, or record all documents and take all actions reasonable, necessary, or appropriate to effectuate the Plan; all matters involving the Debtors’ corporate structure and required corporate actions are deemed to have occurred and are effective as of the Effective Date without further action by security holders, directors, managers, authorized persons, or officers.

Retained Causes of Action

• Retained Causes of Action are all Causes of Action of the Debtors or the Estates not expressly released under the Plan, as indicated on the Schedule of Retained Causes of Action, including:
  • The Antitrust Litigation Claims — claims held by the Debtors against several pork, chicken, turkey, and beef producers, and against any other producers, growers, processors, manufacturers, distributors, wholesalers, or suppliers of goods, products, commodities, or services purchased, acquired, or paid for by the Debtors in various ongoing and prospective antitrust and price-fixing proceedings.
  • The Sprouts Farmers Market Litigation Claims asserted in the Sprouts Adversary Proceeding, including any litigation or appeals thereof, subject to any release set forth in the order approving the settlement agreement with Sprouts Farmers Market, Inc. [Docket No. 1099].
  • Retained Causes of Action exclude any claim or Cause of Action of the Debtors or Post-Effective Date Debtors against the DIP Agent, any DIP Lender, or any Plan Funder.
• The Liquidating Trust will retain and may enforce all rights to commence and pursue any and all Causes of Action belonging to the Debtors or their Estates, whether arising before or after the Petition Date, and will be vested with all rights, powers, and privileges of the Debtors, including under chapter 5 of the Bankruptcy Code, as the only Entity that may pursue such Causes of Action in accordance with the best interests of the Liquidating Trust Beneficiaries.
  • All rights in any Retained Causes of Action vest in the Liquidating Trust as of the Effective Date and may be pursued solely by the Liquidating Trust.
  • The Liquidating Trust has the exclusive right, authority, and ability to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment such Causes of Action, or decline to do so, without third-party consent or further Bankruptcy Court approval; any settlement, compromise, release, withdrawal, or abandonment requires the consent of the Liquidating Trust Advisory Board.
  • No preserved Cause of Action will include any claim against a Released Party or Exculpated Party, subject in all respects to Article VIII, or against the DIP Agent, any DIP Lender, or any Plan Funder.
  • No Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any Cause of Action against it as an indication that the Debtors, the Post-Effective Date Debtors, or the Liquidating Trust will not pursue it. Unless expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Final Order, all Causes of Action are expressly reserved for later adjudication, and no preclusion doctrine — res judicata, collateral estoppel, issue preclusion, claim preclusion, judicial or equitable estoppel, or laches — applies as a result of Confirmation or Consummation.
  • The Liquidating Trust is deemed substituted as plaintiff, defendant, or in any other capacity for the applicable Debtors and the Committee in any Causes of Action pending before the Bankruptcy Court or any other court that relate to a Liquidating Trust Asset, without the need to file a motion.

Executory Contracts and Unexpired Leases

• On the Effective Date, all Executory Contracts and Unexpired Leases not previously assumed, assumed and assigned, or rejected pursuant to a Bankruptcy Court order will be deemed rejected under sections 365 and 1123, other than those (a) subject to a motion to assume pending on the Confirmation Date or (b) set forth on the Schedule of Assumed Executory Contracts and Unexpired Leases.
  • The blanket rejection excludes the Indemnification Obligations, the D&O Liability Insurance Policies, the Meru Engagement Letter, the Hilco Engagement Letter, and the Antitrust Counsel Engagement Letters.
  • Before the Confirmation Hearing the Debtors will cause Notices of Assumption to be sent to applicable counterparties; objections to the proposed assumption or cure amount must be filed by the date set in the Notice of Assumption, the Confirmation Order, or another Bankruptcy Court order, and a counterparty that fails to object timely is deemed to have assented to the assumption and cure amount. The Liquidating Trust reserves the right to amend the Schedule of Assumed Executory Contracts and Unexpired Leases within 90 days after the Effective Date, and has 30 days following a Final Order resolving any dispute over whether a contract or lease was executory or unexpired to alter its treatment.
• Claims arising from rejection under the Plan and Confirmation Order will be forever barred and unenforceable against the Debtors, the Estates, the Liquidating Trustee, the Liquidating Trust, or their assets unless a Proof of Claim is filed with the Claims and Noticing Agent and served on the Liquidating Trust within 30 days of the Effective Date; such Claims, if Allowed, will be classified and treated as General Unsecured Claims.
• Each D&O Liability Insurance Policy, including any “tail policy” and related agreements, documents, or instruments, will be treated as an Executory Contract and assumed in its entirety as of the Effective Date under sections 105, 365, and 1123, without further notice, action, order, or approval of the Bankruptcy Court.
  • Coverage for defense and indemnity remains available to all individuals within the definition of “Insured,” and all officers, directors, agents, and employees of the Debtors who served at any time before the Effective Date are entitled to the full benefits of the policies (including any tail policy) in effect or purchased as of the Effective Date for the full policy term, regardless of whether they remain in such positions afterward. The Debtors will not terminate or otherwise reduce coverage under any D&O Liability Insurance Policy in effect prior to the Effective Date and will continue such policies and satisfy their obligations thereunder in full in the ordinary course.
• Each of the Antitrust Counsel Engagement Letters, the Hilco Engagement Letter, and the Meru Engagement Letter, as approved by the Bankruptcy Court and unless otherwise amended in connection with the Effective Date, will be treated as an Executory Contract and assumed in its entirety as of the Effective Date under sections 105, 365, and 1123.
• The Debtors’ Indemnification Obligations will not be discharged, impaired, or otherwise affected by the Plan, and will be deemed Executory Contracts and assumed by the Post-Effective Date Debtors on the Effective Date.
• All employment policies and all compensation and benefits plans, policies, and programs applicable to the Debtors’ employees, retirees, and nonemployee directors — including savings, retirement, healthcare, disability, severance, incentive, and life and accidental death and dismemberment insurance plans — are treated as Executory Contracts and will be rejected on the Effective Date pursuant to sections 365 and 1123.
• Rejection does not terminate preexisting obligations owed to the Debtors, the Post-Effective Date Debtors, the Liquidating Trustee, or the Liquidating Trust under the rejected contract or lease; notwithstanding any non-bankruptcy law to the contrary, they expressly reserve the right to receive warranties and continued maintenance obligations with respect to goods previously purchased.
• Neither the inclusion nor the exclusion of a contract or lease on any schedule or exhibit is an admission that it is or is not executory or unexpired, or that any liability exists thereunder. Modifications, amendments, supplements, and restatements of prepetition contracts or leases executed during the Chapter 11 Cases do not alter the prepetition nature of the contract or lease or the validity, priority, or amount of any resulting Claims.

Wind-Down and Corporate Dissolution

• Following the Effective Date, and subject to the Post-Effective Budget, the Plan, and the Liquidating Trust Agreement, the Liquidating Trust will administer the Wind-Down, including winding down the affairs of the Post-Effective Date Debtors and their Estates.
  • Any Post-Effective Budget prepared prior to the Effective Date must be mutually determined by and acceptable in substance and form to the Plan Funders and the Committee, and will include amounts reasonably necessary to (i) compensate the Liquidating Trustee; (ii) pay reasonable professional fees of the Liquidating Trustee; (iii) pay all Allowed Administrative Claims and Allowed Priority Tax Claims; (iv) pay all Allowed Other Secured Claims and Other Priority Claims, as applicable; and (v) pay any other reasonable fees, costs, and expenses incurred by the Liquidating Trust in connection with the Wind-Down.
  • From and after the Effective Date, the Post-Effective Budget may be created, modified, or replaced by the Liquidating Trust Advisory Board in its sole and exclusive discretion following consultation with the Liquidating Trustee.
• On the Effective Date, following satisfaction of the distribution and funding requirements set forth in the Plan, the Debtors or Post-Effective Date Debtors will be dissolved for all purposes unless the Liquidating Trust determines that dissolution could adversely impact the Liquidating Trust Assets; neither the Debtors nor any party released under Article VIII will be responsible for liabilities arising as a result of non-dissolution.
• On the Effective Date and following satisfaction of the Plan’s distribution and funding requirements, the Debtors and Post-Effective Date Debtors have no further duties or responsibilities in connection with implementation of the Plan, their directors and officers are deemed to have resigned, and their employees are terminated. Immediately following the Effective Date, the respective boards of directors, managers, and officers of each Debtor will be terminated and the officers and board members deemed to have resigned. The Liquidating Trust will submit a copy of the Confirmation Order to the appropriate governmental agencies, which will suffice to obtain certificates of dissolution, and may file tax returns on behalf of the Debtors notwithstanding their dissolution.
• Upon the Effective Date: (a) the Liquidating Trust will be deemed appointed to serve as, and authorized to act on behalf of, each Post-Effective Date Debtor with the same power and authority as its sole officer, director, or manager; (b) the Liquidating Trustee will be appointed to serve as trustee and administrator of the Liquidating Trust; and (c) the Liquidating Trust will serve as sole holder of the New Equity Interest.
  • The New Equity Interest will be issued in a tax efficient manner as determined by the Debtors and the Plan Funder or the Liquidating Trust Advisory Board, as applicable, to the Liquidating Trust for no consideration in connection with the administration of the Plan.
  • The New Equity Interest is not transferable to any person other than a successor Liquidating Trust in accordance with the Liquidating Trust Agreement.
  • As of the Effective Date, the Liquidating Trustee, or such other person as the Plan Funders may designate (with the consent of the Committee, not to be unreasonably withheld) and disclose (the “Designee”), will act as the sole officer, director, manager, and Governing Body of the Post-Effective Date Debtors with respect to their affairs, with power to take any action necessary to wind down and dissolve them, including (a) filing certificates of dissolution and all other necessary corporate and company documents under the laws of each entity’s state of formation and (b) completing and filing all final or otherwise required federal, state, and local tax returns, paying taxes required to be paid, and requesting an expedited determination of unpaid tax liability under section 505(b) for taxes incurred during administration of the cases. Such filings are authorized and approved without further action under applicable law.
• As soon as reasonably practical after the Confirmation Date, the Debtors or Post-Effective Date Debtors may take any action reasonably designed to simplify the corporate structure — including merging one Debtor into another or causing a Debtor to liquidate or dissolve — without further Bankruptcy Court order, further action, payment of any fee, tax, or charge, or the filing of reports or certificates. Upon the Effective Date, each Debtor is deemed to have withdrawn business operations from every jurisdiction in which it conducted, or was registered or licensed to conduct, business, without any filing or payment, and is not liable for franchise, business, license, or similar taxes accruing on or after the Effective Date.
• On the Effective Date, the Committee and any other statutory committee will dissolve automatically and all members will be released and discharged from all rights, duties, and responsibilities arising from or relating to the Chapter 11 Cases; provided that the Committee will continue to exist and its Professionals will continue to be retained, without further Bankruptcy Court order, with respect to the preparation and prosecution of any final fee applications of the Committee’s Professionals and all final fee applications filed with the Bankruptcy Court.
• Promptly after full administration of the Chapter 11 Cases, the Liquidating Trust will file all documents required by Bankruptcy Rule 3022 and any applicable order to close the cases; as of the Effective Date, the Post-Effective Date Debtors may submit separate orders under certification of counsel, previously provided to the U.S. Trustee, closing certain individual Chapter 11 Cases and changing the caption accordingly.
• No case may be closed effective as of a date preceding entry of the closing order; any request must be made on motion served on the U.S. Trustee and ruled on after notice and a hearing. Upon filing a motion to close the last remaining case, a final report covering all Chapter 11 Cases will be filed.

Provisions Governing Distributions

• The Disbursing Agent — the Liquidating Trustee or any Entity designated or retained by the Liquidating Trust without further Bankruptcy Court order — may make all distributions under the Plan and is empowered to effect all actions and execute all agreements, instruments, and documents necessary to perform its duties.
• On the Effective Date, all Liquidating Trust Interests will be registered in the name of the Disbursing Agent on the register of the Liquidating Trust, held for the benefit of Holders of Claims and Interests that are Allowed or become Allowed after the Effective Date.
  • At such times as the Liquidating Trust determines in its discretion that there are sufficient net proceeds, the Disbursing Agent will distribute such proceeds to Holders of Allowed Claims and Interests in accordance with the Plan and the Liquidating Trust Agreement, including the Distribution Schedule.
• As of the close of business on the Plan Distribution Record Date the Claims Register is closed, and the Disbursing Agent is entitled to recognize only the record Holders listed as of that time. A Claim transferred 20 or fewer days before that date will be recognized for distribution only to the extent practical and only if the transfer form contains an unconditional and explicit certification and waiver of any objection to the transfer by the transferor.
• On the Effective Date, each Holder of a certificate or instrument evidencing a Claim or Interest is deemed to have surrendered it to the Disbursing Agent, and the certificate or instrument is cancelled solely as to the Debtors; obligations and rights among non-Debtor third parties, including trustee or agent rights, charging liens, and reimbursement and indemnification rights, continue in effect. This does not apply to instruments evidencing Unimpaired Claims or Interests.
• No payment of Cash of less than $250 is required on account of any Allowed Claim or Allowed Interest. If the remaining assets available for distribution are, in the discretion of the Liquidating Trustee and subject to the consent of the Liquidating Trust Advisory Board, too impractical or unduly burdensome to distribute, the Liquidating Trust may donate such funds to the unaffiliated charity of its choice.
• Any Claim or Interest asserted in a currency other than U.S. dollars will be automatically deemed converted as of the Effective Date to its U.S. dollar equivalent using the exchange rate published in The Wall Street Journal on the Petition Date.
• Unless otherwise specifically provided in the DIP Order, the Plan, or the Confirmation Order, or required by applicable law, postpetition interest will not accrue or be paid on any prepetition Claims.
• Any person making a distribution must comply with all applicable withholding and reporting requirements; the distributing party may condition a non-Cash distribution on the recipient providing Cash sufficient to satisfy withholding, or may withhold and sell property or pay the tax from its own funds and retain the property, and may decline to distribute until its withholding or reporting obligation is satisfied. A recipient that fails, for 180 days after a request, to deliver a required IRS Form or other tax documentation irrevocably forfeits the distribution to the Liquidating Trust, and the related Claim is discharged and forever barred. Each Holder bears sole responsibility for its own tax obligations on account of any distribution.
• Distributions on an Allowed Claim are allocated first to principal (as determined for U.S. federal income tax purposes) and thereafter to the remaining portion of the Claim. Distributions are made free and clear of all Liens, Claims, encumbrances, charges, and other Interests.
• The Debtors, the Post-Effective Date Debtors, and the Liquidating Trust may, but are not required to, set off or recoup against any Allowed Claim and related distribution any claims, rights, and Causes of Action they hold against the Holder; failure to do so is not a waiver. No Holder may set off against a Debtor claim unless it asserted or preserved a right of setoff in a timely-filed Proof of Claim or was not required to file one under a Final Order.
• No distribution is made on an Allowed Claim payable under one of the Debtors’ Insurance Policies until the Holder has exhausted all remedies with respect to that policy; to the extent an insurer agrees to satisfy a Claim, the applicable portion may be expunged without an objection or Court order. A Holder that receives payment or satisfaction from a party other than the Debtors or the Liquidating Trust must repay or return the distribution within 14 calendar days to the extent its total recovery exceeds the amount of the Claim, and a Claim paid in full by a third party is disallowed.
• Undeliverable Plan Distributions will not be made unless and until the Disbursing Agent determines the Holder’s then-current address, at which time distribution will be made without interest; such distributions will be deemed unclaimed property under section 347(b) at the expiration of one year from the Effective Date. After that date, all unclaimed property reverts automatically to the Liquidating Trust without further order and notwithstanding any federal, provincial, or state escheat, abandoned, or unclaimed property law, and the Holder’s Claim to such property is discharged and forever barred, with no entitlement to any distribution under the Plan.
• The Liquidating Trust may reimburse any Entity, without further Bankruptcy Court approval, for reasonable, documented, and customary out-of-pocket expenses incurred in providing post-Confirmation distribution services, and may compensate an independent third-party Disbursing Agent as a Liquidating Trust Expense. The Disbursing Agent need not post a bond or surety unless ordered, and any such cost is borne by the Debtors.

Claims Reconciliation and Objections

• Before the Effective Date, the Debtors may object to Claims. After the Effective Date, the Liquidating Trust will have exclusive authority to object to all Claims against the Debtors, other than any Claim expressly Allowed by Final Order or under the Plan.
  • If any objection filed by the Debtors remains pending as of the Effective Date, the Liquidating Trust will be deemed substituted for the Debtors as the objecting party.
  • Objections must be filed on or before the Claims Objection Deadline — 11:59 p.m. (prevailing Central Time) on the 180th calendar day after the Effective Date, subject to further extensions or exceptions ordered by the Bankruptcy Court or upon presentment of an order by the Liquidating Trust.
• On and after the Effective Date, the Liquidating Trust will have the sole and exclusive authority to file, withdraw, or litigate to judgment objections to Claims or Interests; settle or compromise any Disputed Claim; and administer and adjust the Claims Register to reflect such settlements or compromises, in each case without further notice to or approval by the Bankruptcy Court or any other party. It may assert all of the Debtors’, the Post-Effective Date Debtors’, and its own rights, claims, defenses, offsets, rights of recoupment, disallowance, subrogation, recharacterization, and equitable subordination, and counterclaims, and is deemed the holder of all applicable privileges of the Debtors, the Post-Effective Date Debtors, and the Committee in connection therewith.
• Before or after the Effective Date, the Debtors or the Liquidating Trust may request that the Bankruptcy Court estimate any contingent or unliquidated Disputed Claim under section 502(c), regardless of prior objections or rulings; an estimated amount is a maximum limitation on the Claim for all purposes, including distributions. A Claim expunged or disallowed from the Claims Register that is subject to appeal or not yet the subject of a Final Order is deemed estimated at $0.00 unless the Court orders otherwise.
• Claims held by parties against whom the Debtors or the Liquidating Trust have commenced turnover or avoidance proceedings under sections 542, 543, 544, 545, 547, 548, 549, or 550 (or that are transferees of transfers avoidable under sections 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a)) are deemed Disputed under section 502(d), and those Holders are not entitled to vote on the Plan; such Claims remain Disputed until the proceeding is resolved by Final Order and all sums due have been paid. Such Claims are Disallowed where liability to turn over property is agreed or determined by Final Order and the property is not turned over by the required date.
• Each Proof of Claim filed after the applicable Bar Date is deemed Disallowed and forever barred as of the Effective Date, without objection or further order, and may be expunged from the Claims Register, unless deemed timely filed by Final Order or agreed by the Debtors in writing on or before the Confirmation Hearing. Any Claim that has been paid, satisfied, amended, or superseded may be adjusted or expunged without an objection or further order.
• On or after the Effective Date, a Claim may not be filed or amended without prior authorization of the Bankruptcy Court or the Liquidating Trust, and any such new or amended Claim is deemed disallowed in full and expunged. No payment or distribution is made on a Claim subject to a pending objection until it becomes an Allowed Claim; once Allowed, the Disbursing Agent will distribute as soon as practicable after the allowance order becomes a Final Order, without interest, dividends, or accruals for the period from the Effective Date to the date of distribution.

Releases

• Released Parties comprise, each solely in its capacity as such: (a) the Debtors; (b) the Post-Effective Date Debtors; (c) the Committee and each of its members; (d) the Plan Funders and each of their current or contemplated limited partners, members, and affiliates; (e) each DIP Lender and its applicable agent; and (f) the Related Parties of each of the foregoing.
  • An Entity that affirmatively elects to opt out of being a Releasing Party — by timely objecting to Confirmation or by checking the appropriate box on a timely and properly submitted Ballot or Opt-Out Form — will not be considered a Released Party.
• Releasing Parties comprise, each solely in its capacity as such: (a) the Committee and each of its members; (b) the Plan Funders; (c) each DIP Lender and its applicable agent; (d) each Holder of a Claim entitled to vote that does not affirmatively opt out via Ballot or a timely objection to the Third Party Release; (e) each Holder of a Claim or Interest in a Nonvoting Class that does not affirmatively opt out via Opt-Out Form or a timely objection; and (f) the Related Parties of each of the foregoing.
• Debtor Releases: Effective as of the Effective Date, pursuant to section 1123(b), each Released Party is deemed conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by the Debtors, their Estates, and the Post-Effective Date Debtors — on behalf of themselves and their successors, assigns, and representatives, and any Entities purporting to assert claims directly or derivatively through them — from all claims, Causes of Action, and liabilities, including derivative claims, based on or relating to or arising from the Company-Related Matters.
• Third Party Release: Effective as of the Effective Date, each Releasing Party is deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged each Released Party from all claims, Causes of Action, and liabilities that such Releasing Party would have been legally entitled to assert in its own right or otherwise, based on or relating to or arising from the Company-Related Matters.
• The releases do not release: (a) any obligations arising pursuant to or after the Effective Date under the Plan, the Confirmation Order, or any document, instrument, or agreement executed to implement the Plan, including those in the Plan Supplement; (b) any Causes of Action included in the Schedule of Retained Causes of Action; or (c) any Claims or Causes of Action arising out of any act or omission of a Released Party determined by Final Order to have constituted actual fraud, gross negligence, or willful misconduct.
• Company-Related Matters is defined broadly to encompass, among other things, matters related to the Debtors and their management, ownership, or operation; the purchase, sale, amendment, or rescission of any Claim or Interest; the Debtors’ in- or out-of-court restructuring efforts and intercompany transactions; the Chapter 11 Cases and any related adversary proceedings; the Prepetition Credit Agreement, the Prior DIP Credit Agreement, the DIP Documents, the Exit Capital Facility Documents, the Disclosure Statement, and the Plan (including the Plan Supplement); and the pursuit of Confirmation and Consummation and the administration and implementation of the Plan, in each case taking place on or before the Effective Date.
• Entry of the Confirmation Order constitutes Bankruptcy Court approval of the Debtor Release and the Third Party Release under Bankruptcy Rule 9019, together with findings that:
  • The Debtor Release is given in exchange for good and valuable consideration; is a good faith settlement and compromise; is in the best interests of the Debtors, the Estates, and all Holders of Claims and Interests; is fair, equitable, and reasonable; was given after reasonable investigation by the Debtors and after due notice and opportunity for hearing; and bars the Debtors, their Estates, and the Post-Effective Date Debtors from asserting any released claim.
  • The Third Party Release is consensual; essential to Confirmation; given in exchange for good and valuable consideration, including the Released Parties’ contributions to facilitating the restructuring and implementing the Plan; a good faith settlement and compromise; in the best interests of the Debtors and their Estates; fair, equitable, and reasonable; given after due notice and opportunity for hearing; and a bar to any Releasing Party asserting a released claim.
• Except as otherwise provided in the Plan, the Exit Capital Facility Documents, or any contract, instrument, release, or other document created pursuant to the Plan, on the Effective Date and concurrently with the applicable distributions, all mortgages, deeds of trust, Liens, pledges, or other security Interests against property of the Estates will be fully released and discharged, and all right, title, and Interest of any holder thereof will revert to the Debtors and their successors and assigns. Any Holder of an Other Secured Claim (or its agent) that has publicly filed or recorded Liens or security Interests must, as soon as practicable on or after the Effective Date, take all steps requested by the Liquidating Trust to record or effectuate their cancellation and extinguishment, and the Liquidating Trust may make such filings or recordings on the Holder’s behalf.

Exculpation

• Exculpated Parties are (a) the Debtors, (b) each director of the Debtors, and (c) the Committee and each of its members, solely in their respective capacities as such.
• Effective as of the Effective Date, and without affecting or limiting either the Debtor Release or the Third Party Release, no Exculpated Party will have or incur liability for, and each is exculpated from, any claim or Cause of Action related to any act or omission in connection with, relating to, or arising out of the negotiation, solicitation, confirmation, execution, or implementation (to the extent on or prior to the Effective Date) of the Company-Related Matters.
  • Exculpation does not extend to claims determined in a Final Order by a court of competent jurisdiction to have constituted actual fraud, willful misconduct, or gross negligence, and such Entities are entitled to reasonably rely on advice of counsel with respect to their duties and responsibilities under the Plan.
  • Exculpation applies solely to actions taken from the Petition Date through the Effective Date, and does not exculpate obligations arising pursuant to or after the Effective Date under the Plan or implementing documents, Causes of Action included in the Schedule of Retained Causes of Action, or acts or omissions determined by Final Order to have constituted actual fraud, gross negligence, or willful misconduct.

Injunction

• In accordance with section 1141(d)(3), the Plan does not discharge the Debtors; section 1141(c) nevertheless provides that property dealt with by the Plan is free and clear of all Claims and Interests against the Debtors.
• Except as otherwise expressly provided in the Plan, or for obligations issued or required to be paid under the Plan or Confirmation Order, all Persons or Entities holding Claims, Interests, or Causes of Action in or against the Debtors are permanently enjoined, on and after the Effective Date, from taking the following actions against the Debtors, the Exculpated Parties, or the Released Parties and their successors, assigns, or representatives (including the Liquidating Trust, the Liquidating Trustee, and the Liquidating Trust Advisory Board), solely with respect to Claims, Interests, or Causes of Action treated by the Plan:
  • Commencing or continuing any action or proceeding on account of such Claims or Interests, including any released, compromised, or settled pursuant to the Plan;
  • Enforcing, attaching, collecting, or recovering any judgment, award, decree, or order;
  • Creating, perfecting, or enforcing any encumbrance against such Entities or their property; and
  • Asserting any right of setoff, subrogation, or recoupment against any obligation due from such Entities or against their property, subject to preserved setoff rights.
• Upon entry of the Confirmation Order, all Holders of Claims and Interests and their current and former employees, agents, officers, directors, managers, principals, and direct and indirect Affiliates, in their capacities as such, are enjoined from taking any actions to interfere with implementation or Consummation of the Plan.
• Each Holder of an Allowed Claim, by accepting or being eligible to accept distributions or Reinstatement, is deemed to have consented to the injunction provisions.
• No party may commence, continue, amend, pursue, join in, or support any claim or Cause of Action against the Debtors, the Liquidating Trust, the Liquidating Trustee, or the Exculpated Parties that relates to or is reasonably likely to relate to any act or omission subject to the releases or exculpations under the Plan without first (a) requesting a determination from the Bankruptcy Court, after notice and a hearing, that the Cause of Action is colorable and not released or exculpated — with the proposed complaint or petition attached — and (b) obtaining specific authorization from the Bankruptcy Court to bring such Cause of Action. A party that obtains such determination and authorization must return to the Bankruptcy Court for authorization before amending the authorized complaint or petition to add any Cause of Action not explicitly included. The Bankruptcy Court has sole and exclusive jurisdiction to determine whether a Cause of Action is colorable and, to the extent legally permissible, jurisdiction to adjudicate the underlying colorable Cause of Action.

Retention of Jurisdiction

• On and after the Effective Date, the Bankruptcy Court retains exclusive jurisdiction under 28 U.S.C. §§ 1334 and 157 over all matters arising in, arising under, or related to the Chapter 11 Cases, including to:
  • Allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including requests for payment of Administrative Claims and all objections to Claims and Interests; and resolve disputes concerning Claim objections, allowance, disallowance, subordination, estimation, and distribution.
  • Decide all matters relating to allowance or denial of compensation and expense reimbursement for Professionals.
  • Resolve matters relating to the assumption, or assumption and assignment, of Executory Contracts and Unexpired Leases, liquidate any resulting Cure, and resolve disputes over whether a contract or lease is or was executory or expired.
  • Adjudicate motions, adversary proceedings, and contested or litigated matters pending on the Effective Date, and any matters under sections 1141, 1145, and 1146.
  • Enter and implement orders necessary to execute, implement, or consummate the Plan and related documents; interpret and enforce the Plan and obligations incurred in connection with it; and enter orders if the Confirmation Order is modified, stayed, reversed, revoked, or vacated.
  • Resolve disputes concerning the releases, injunctions, and other provisions of the Plan and enter orders implementing them; and enforce or determine matters arising in connection with the Disclosure Statement, the Plan, the Confirmation Order, and the DIP documents.
  • Ensure distributions are made in accordance with the Plan; resolve disputes over repayment or return of distributions and recovery of amounts not timely repaid; and adjudicate all disputes arising from or relating to distributions.
  • Consider modifications of the Plan and cure defects, omissions, or inconsistencies in any Bankruptcy Court order, including the Confirmation Order.
  • Hear matters concerning state, local, and federal taxes under sections 346, 505, and 1146; hear and determine Causes of Action brought by the Liquidating Trust and other rights, Claims, or Causes of Action held by or accruing to the Debtors or the Liquidating Trust, including to recover estate property wherever located.
  • Enforce all previously entered orders, enter a final decree concluding or closing the Chapter 11 Cases, and hear any other matter within its jurisdiction.

Voting and Solicitation

• The Voting Deadline is July 29, 2026, at 4:00 p.m. (prevailing Central Time), subject to extension with the written consent of the Plan Funders, the Debtors, and the Committee.
• Ballots and Solicitation Materials will be provided to Holders of Claims entitled to vote, and the Notice of Non-Voting Status Package — including the Opt-Out Form, through which Holders in Non-Voting Classes may affirmatively elect to opt out of being a Releasing Party — will be sent to Holders of Claims and Interests in the Non-Voting Classes, which are Classes 1, 2, 6, and 9. Each such document must be in form and substance acceptable to the Debtors, the Plan Funders, and the Committee, with acceptance of the Ballots not to be unreasonably withheld, conditioned, or delayed. Solicitation procedures, conditional approval of the Disclosure Statement, and scheduling of the Confirmation Hearing are addressed by the Debtors’ Solicitation Procedures Motion, which must likewise be acceptable to the Debtors, the Plan Funders, and the Committee.
• Certification Forms will be distributed to Holders of Allowed General Unsecured Claims and Non-Recourse Claims to indicate accredited investor status, and must be delivered by the Certification Deadline, which is subject to extension with the consent of the Plan Funders, the Debtors, and the Committee before the Effective Date, or the Liquidating Trustee and the Liquidating Trust Advisory Board thereafter.
• With respect to each Debtor, if a Class contained Claims eligible to vote and no eligible Holder votes to accept or reject the Plan, the Plan will be presumed accepted by the Holders of such Claims in such Class.
• Any Class that, as of the commencement of the Confirmation Hearing, does not have at least one Holder of a Claim or Interest Allowed in an amount greater than zero for voting purposes will be considered vacant, deemed eliminated from the Plan for voting purposes, and disregarded for purposes of section 1129(a)(8).
• Section 1129(a)(10) will be satisfied by acceptance of the Plan by one or more of the Classes entitled to vote. The Debtors request Confirmation under section 1129(b) with respect to any Class deemed to reject under section 1126(g), and reserve the right to request Confirmation under section 1129(b) with respect to any voting Class that votes to reject.

Conditions Precedent to the Effective Date

• Occurrence of the Effective Date is subject to satisfaction or waiver of the following conditions:
  • Entry of a Final Order, in form and substance acceptable to the Debtors, the Plan Funders, and the Committee, approving the Disclosure Statement as containing adequate information within the meaning of section 1125.
  • Entry of the Confirmation Order, in form and substance acceptable to the Debtors, the Plan Funders, and the Committee, which must have become a Final Order.
  • The Exit Capital Commitment Agreement remaining in full force and effect and not having been terminated at any time.
  • Payment in full of all professional fees and expenses of Professionals already approved by the Bankruptcy Court.
  • Funding of the Professional Fee Reserve Amount into the Professional Fee Account.
  • Payment in full in Cash of the unpaid, reasonable, and documented fees and expenses of (a) DIP Lender Professionals, (b) counsel to any Plan Funder in accordance with the Exit Capital Commitment Agreement, and (c) any other professional retained by the Plan Funders; amounts incurred as of the Effective Date but not invoiced are not a condition precedent and will be payable by the Liquidating Trust within ten days after receipt of summary invoices, without itemized time detail or Bankruptcy Court review or approval.
  • Appointment of the Liquidating Trustee and assumption of its rights and responsibilities under the Liquidating Trust Agreement, and establishment and funding of the Liquidating Trust in accordance with that agreement — a condition that may not be waived.
  • All documents and agreements necessary to implement the Plan, including the Liquidating Trust Agreement and all other Plan Supplement items, being in form and substance acceptable to the Debtors, the Plan Funders, and the Committee (with acceptance of the Liquidating Trust Agreement not to be unreasonably withheld, conditioned, or delayed), and having been effected or fully executed and remaining in full force and effect.
  • Payment in full of all statutory fees and obligations then due and payable to the U.S. Trustee.
• The Debtors may, with the consent of the Plan Funders and the Committee, waive any one or more of the Conditions Precedent without notice, leave, or order of the Bankruptcy Court or any formal action other than proceeding to confirm or consummate the Plan.
• The Effective Date is the first Business Day after the Confirmation Date on which (a) the Confirmation Order has become a Final Order, (b) all conditions precedent have been satisfied or waived, and (c) the Debtors declare the Plan effective.

Modification, Revocation, or Withdrawal

• The Plan may be amended, modified, or supplemented by the Debtors, with the consent of the Plan Funders and the Committee, in the manner provided by section 1127 or as otherwise permitted by law, without additional disclosure under section 1125.
  • After the Confirmation Date, the Debtors may remedy any defect or omission or reconcile any inconsistencies in the Plan or Confirmation Order as necessary to carry out the Plan’s purposes, and any Holder that has accepted the Plan will be deemed to have accepted it as amended, modified, or supplemented.
  • Entry of the Confirmation Order means that all modifications or amendments to the Plan since solicitation are approved under section 1127(a) and constitutes a finding that they do not require additional disclosure or re-solicitation under Bankruptcy Rule 3019.
• The Debtors reserve the right to revoke or withdraw the Plan prior to the Effective Date as to any or all of the Debtors. If revoked or withdrawn as to a Debtor, then as to that Debtor (a) the Plan is null and void in all respects; (b) any settlement or compromise embodied in the Plan (including the fixing or limiting of any Claim, Interest, or Class), any assumption or rejection of executory contracts or unexpired leases effected by the Plan, and any document or agreement executed pursuant to the Plan is deemed null and void; and (c) nothing in the Plan constitutes a waiver or release of any Claim by or against, or Interest in, that Debtor or any other person, prejudices the rights of that Debtor or any other person, or constitutes an admission of any kind.

Miscellaneous Provisions

• In an inconsistency between the Plan and the Plan Supplement, the relevant Plan Supplement document controls unless it specifies otherwise; in an inconsistency between the Plan and any other instrument or document created or executed under it, or between the Plan and the Disclosure Statement, the Plan controls; the Plan and the Confirmation Order are to be construed consistently, but any irreconcilable inconsistency is governed by the Confirmation Order, whose provisions are deemed a modification of the Plan.
• Notwithstanding Bankruptcy Rules 3020(e), 6004(h), and 7062, upon the occurrence of the Effective Date the terms of the Plan will be immediately effective, enforceable, and binding upon and inure to the benefit of the Debtors, the Liquidating Trust, all present and former Holders of Claims and Interests (whether or not Impaired, whether or not a Proof of Claim was filed, and whether or not such Holder voted), the Released Parties, the Exculpated Parties, and their respective successors and assigns, including the Post-Effective Date Debtors and all other parties-in-interest.
• On the Effective Date, the Plan will be deemed substantially consummated within the meaning of section 1101(2) pursuant to section 1127(b). The Plan will have no force or effect unless and until the Bankruptcy Court enters the Confirmation Order.
• All injunctions and stays against actions against property of the Debtors or the Estates arising under or entered during the Chapter 11 Cases under sections 105 or 362 and in existence on the date the Confirmation Order is entered remain in effect until such property is no longer property of the Debtors or the Estates; all other such injunctions and stays remain in effect until the earlier of the date the Chapter 11 Cases are closed or dismissed by Final Order. All injunctions and stays contained in the Plan or the Confirmation Order remain in full force and effect indefinitely.
• The rights, benefits, and obligations of any Entity named or referred to in the Plan bind and inure to the benefit of its heirs, executors, administrators, successors, assigns, beneficiaries, and guardians, subject to the terms of the Plan Documents including the Liquidating Trust Agreement. On the Effective Date, the Plan, the Plan Supplement, and the Confirmation Order supersede and merge all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on the same subjects.
• As of the Effective Date, the Liquidating Trust will be responsible for preparing and filing any tax forms or returns on behalf of the Debtors’ Estates; it will not be responsible for preparing or filing tax forms for Holders of Interests in the Debtors, which Interests are cancelled under the Plan, but will provide such Holders with information reasonably required to prepare them.
• The Debtors and the Liquidating Trust may request an expedited determination of tax liability under section 505, including for any unpaid liability of the Estates for taxes incurred during administration of the Chapter 11 Cases.
• Unless a rule of law or procedure is supplied by federal law or otherwise specifically stated, New York law, without giving effect to conflict of laws principles (other than sections 5-1401 and 5-1402 of the New York General Obligations Law), governs the rights, obligations, construction, and implementation of the Plan and related agreements and corporate governance matters; corporate governance matters for Debtors not incorporated in New York are governed by the law of the applicable jurisdiction of incorporation, and the governing law provision has no impact on the law applied to the Retained Causes of Action.
• All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full therein.
• After the Effective Date, the Liquidating Trust may limit the list of Entities receiving documents under Bankruptcy Rule 2002 to those that file renewed requests.
• The Confirmation Order will constitute a judicial determination that each term and provision of the Plan is (a) valid and enforceable pursuant to its terms; (b) integral to the Plan and may not be deleted or modified without the consent of the Debtors (or the Liquidating Trust, as applicable), the Plan Funders, and the Committee; and (c) nonseverable and mutually dependent.