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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11 )
APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, et al.,1
) ) )
Case No. 20-11466 (CSS)
) (Jointly Administered) Debtors. )
) Re: Docket No. 23
NOTICE OF FILING OF FIRST AMENDED
JOINT PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION OF
APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC AND ITS
DEBTOR AFFILIATES PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
PLEASE TAKE NOTICE that, on June 3, 2020, APC Automotive Technologies Intermediate Holdings, LLC and certain of its affiliates (collectively, the “Debtors”) filed the Joint Prepackaged Chapter 11 Plan of Reorganization of APC Automotive Technologies Intermediate
Holdings, LLC and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 23] (as may be amended or modified from time to time and including all exhibits and
supplements thereto, the “Plan”).2
PLEASE TAKE FURTHER NOTICE that the Debtors hereby file this First Amended Joint Prepackaged Chapter 11 Plan of Reorganization of APC Automotive Technologies
Intermediate Holdings, LLC and Its Debtor Affiliates Pursuant to Chapter 11 of the Bankruptcy Code (as may be amended or modified from time to time and including all exhibits and
supplements thereto, the “First Amended Plan”), attached hereto as Exhibit A, which incorporates additional comments from parties in interest.
PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit B is a blackline
of the First Amended Plan reflecting the changes made from the Plan filed on June 3, 2020.
PLEASE TAKE FURTHER NOTICE that the Debtors will seek confirmation of the
First Amended Plan at the Confirmation Hearing scheduled for July 10, 2020 at 2:00 p.m. ,
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, are: APC Automotive Technologies Intermediate Holdings, LLC (0991); Airtek, LLC (1239); AP
Emissions Technologies, LLC (8219); AP Exhaust Products Disc, Inc. (0288); APC Automotive Technologies,
LLC (6651); Aristo, LLC (4541); CWD Acquisition, LLC (4286); CWD Holding Corp. (7381); CWD
Intermediate Corp. (7285); CWD, LLC (5832); Eastern Manufacturing, LLC (2410); Qualis Automotive, L.L.C.
(7291); and Qualis Enterprises, Inc. (6610). The Debtors’ service address is: 10822 West Toller Drive, Suite
370, Littleton, Colorado 80127.
2 Capitalized terms used but not otherwise defined herein have the meanings given to such terms in the Plan.
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 1 of 103
prevailing Eastern Time, before the Honorable Christopher S. Sontchi, United States Bankruptcy Judge for the District of Delaware, 824 N. Market Street, Court Room #6, 5th Floor, Wilmington,
Delaware 19801.
PLEASE TAKE FURTHER NOTICE that if you would like to obtain a copy of the Disclosure Statement, the Plan, the Plan Supplement, or related documents, you may access (a) the Debtors’ restructuring website at https://cases.stretto.com/APC or (b) the Bankruptcy
Court’s website at http://www.deb.uscourts.gov/.
[Remainder of Page Intentionally Left Blank]
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 2 of 103
Dated: July 8, 2020 /s/ Domenic E. Pacitti
Wilmington, Delaware Domenic E. Pacitti (DE Bar No. 3989)
Michael W. Yurkewicz (DE Bar No. 4165)
KLEHR HARRISON HARVEY BRANZBURG LLP
919 North Market Street, Suite 1000
Wilmington, Delaware 19801
Telephone: (302) 426-1189
Facsimile: (302) 426-9193
- and -
Morton R. Branzburg (admitted pro hac vice)
KLEHR HARRISON HARVEY BRANZBURG LLP
1835 Market Street, 14th Floor
Philadelphia, PA 19103
Telephone: (215) 569-2700
Facsimile: (215) 56893
- and -
Jonathan S. Henes, P.C. (admitted pro hac vice)
KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
601 Lexington Ave
New York, New York 10022
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
Proposed Co-Counsel to the Debtors and Debtors in
Possession
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 3 of 103
Exhibit A
First Amended Plan
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 4 of 103
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
APC AUTOMOTIVE TECHNOLOGIES
INTERMEDIATE HOLDINGS, LLC, et al.,1
)
)
Case No. 20-11466 (CSS)
)
Debtors. ) (Jointly Administered)
)
FIRST AMENDED JOINT PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION
OF APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC AND
ITS DEBTOR AFFILIATES PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
Jonathan S. Henes, P.C. (admitted pro hac vice) Domenic E. Pacitti (DE Bar No. 3989)
KIRKLAND & ELLIS LLP Michael W. Yurkewicz (DE Bar No. 4165)
KIRKLAND & ELLIS INTERNATIONAL LLP KLEHR HARRISON HARVEY BRANZBURG LLP
601 Lexington Avenue 919 North Market Street, Suite 1000
New York, New York 10022 Wilmington, Delaware 19801
Telephone: (212) 446-4800 Telephone: (302) 426-1189
Facsimile: (212) 446-4900 Facsimile: (302) 426-9193
-and-
Morton R. Branzburg (admitted pro hac vice)
KLEHR HARRISON HARVEY BRANZBURG LLP
1835 Market Street, Suite 1400
Philadelphia, Pennsylvania 19103
Telephone: (215) 569-3007
Facsimile: (215) 568-6603
Proposed Co-Counsel to the Debtors and Debtors in Possession
Dated: July 8, 2020
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, are: APC Automotive Technologies Intermediate Holdings, LLC (0991); APC Automotive
Technologies, LLC (6651); CWD Acquisition, LLC (4286); CWD Holding Corp. (7381); CWD Intermediate
Corp. (7285); CWD, LLC (5832); Qualis Enterprises, Inc. (6610); Qualis Automotive, LLC (7291); AP Emissions
Technologies, LLC (8219); AP Exhaust Products Disc, Inc. (0288); Eastern Manufacturing, LLC (2410); Airtek,
LLC (1239); Aristo, LLC (4541). The Debtors’ service address is: 10822 West Toller Drive, Suite 370, Littleton,
Colorado 80127.
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 5 of 103
i
TABLE OF CONTENTS
Page
Article I. DEFINED TERMS AND RULES OF INTERPRETATION......................................................................... 1 A. Defined Terms .................................................................................................................................. 1 B. Rules of Interpretation .................................................................................................................... 12 C. Computation of Time ...................................................................................................................... 12 D. Controlling Document ..................................................................................................................... 12 E. Restructuring Support Agreement ................................................................................................... 12
Article II. ADMINISTRATIVE CLAIMS, DIP FACILITY CLAIMS, PRIORITY TAX CLAIMS, AND
UNITED STATES TRUSTEE STATUTORY FEES ................................................................................... 13 A. Administrative Claims .................................................................................................................... 13 B. DIP Facility Claims ......................................................................................................................... 14 C. Priority Tax Claims ......................................................................................................................... 14 D. United States Trustee Statutory Fees .............................................................................................. 14
Article III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS ........................................... 15 A. Classification of Claims .................................................................................................................. 15 B. Treatment of Claims and Interests .................................................................................................. 16 C. Special Provision Governing Unimpaired Claims .......................................................................... 19 D. Voting Classes; Presumed Acceptance by Non-Voting Classes ..................................................... 19 E. Controversy Concerning Impairment .............................................................................................. 19 F. Confirmation Pursuant to Section 1129(a)(10) and Section 1129(b) of the Bankruptcy
Code ................................................................................................................................................ 19 G. Subordinated Claims ....................................................................................................................... 19 H. Elimination of Vacant Classes ........................................................................................................ 19 I. Intercompany Interests .................................................................................................................... 19
Article IV. MEANS FOR IMPLEMENTATION OF THE PLAN .............................................................................. 19 A. Substantive Consolidation ............................................................................................................... 19 B. General Settlement of Claims and Interests .................................................................................... 20 C. Restructuring Transactions ............................................................................................................. 20 D. Corporate Existence ........................................................................................................................ 21 E. Vesting of Assets in the Reorganized Debtors ................................................................................ 21 F. Cancellation of Agreements, Security Interests, and Other Interests .............................................. 21 G. Sources for Plan Distributions and Transfers of Funds Among Debtors ........................................ 22 H. New Equity Documents .................................................................................................................. 22 I. Exemption from Registration Requirements ................................................................................... 22 J. Organizational Documents .............................................................................................................. 22 K. Exemption from Certain Transfer Taxes and Recording Fees ........................................................ 23 L. Directors and Officers of the Reorganized Debtors ........................................................................ 23 M. Directors and Officers Insurance Policies ....................................................................................... 23 N. Other Insurance Policies ................................................................................................................. 24 O. Preservation of Rights of Action ..................................................................................................... 24 P. Corporate Action ............................................................................................................................. 24 Q. Effectuating Documents; Further Transactions ............................................................................... 25 R. Management Incentive Plan ............................................................................................................ 25 S. Workers’ Compensation Programs ................................................................................................. 25
Article V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES; EMPLOYEE
BENEFITS; AND INSURANCE POLICIES ............................................................................................... 25 A. Assumption of Executory Contracts and Unexpired Leases ........................................................... 25 B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases ................................... 26
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 6 of 103
ii
C. Contracts and Leases Entered into After the Petition Date ............................................................. 26 D. Indemnification and Reimbursement Obligations ........................................................................... 26 E. Employee Compensation and Benefits ........................................................................................... 27 F. Modifications, Amendments, Supplements, Restatements, or Other Agreements .......................... 27 G. Reservation of Rights ...................................................................................................................... 27 H. Nonoccurrence of Effective Date .................................................................................................... 28
Article VI. PROVISIONS GOVERNING DISTRIBUTIONS .................................................................................... 28 A. Timing and Calculation of Amounts to Be Distributed .................................................................. 28 B. Delivery of Distributions ................................................................................................................ 28 C. Manner of Payment ......................................................................................................................... 30 D. No Postpetition or Default Interest on Claims ................................................................................ 30 E. Compliance with Tax Requirements/Allocations ............................................................................ 30 F. Surrender of Cancelled Instruments or Securities ........................................................................... 30 G. Claims Paid or Payable by Third Parties ......................................................................................... 30
Article VII. PROCEDURES FOR RESOLVING UNLIQUIDATED AND DISPUTED CLAIMS OR
EQUITY INTERESTS .................................................................................................................................. 31 A. Allowance of Claims and Interests.................................................................................................. 31 B. Proofs of Claim ............................................................................................................................... 31 C. Claims Administration Responsibilities .......................................................................................... 31 D. Estimation of Claims and Interests.................................................................................................. 31 E. Adjustment to Claims Without Objection ....................................................................................... 32 F. Disallowance of Certain Claims ...................................................................................................... 32 G. No Distributions Pending Allowance .............................................................................................. 32 H. Distributions After Allowance ........................................................................................................ 32 I. No Interest ....................................................................................................................................... 32
Article VIII. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE ............................................................... 32 A. Conditions Precedent to the Effective Date .................................................................................... 32 B. Effect of Non-Occurrence of Conditions to the Effective Date ...................................................... 33 C. Waiver of Conditions ...................................................................................................................... 34
Article IX. RELEASE, INJUNCTION, AND RELATED PROVISIONS .................................................................. 34 A. Discharge of Claims and Termination of Interests; Compromise and Settlement of
Claims, Interests, and Controversies ............................................................................................... 34 B. Releases by the Debtors ................................................................................................................ 34 C. Releases by the Releasing Parties ................................................................................................ 36 D. Exculpation .................................................................................................................................... 37 E. Injunction....................................................................................................................................... 37 F. Setoffs and Recoupment ................................................................................................................. 38 G. Release of Liens .............................................................................................................................. 38
Article X. RETENTION OF JURISDICTION ............................................................................................................ 38
Article XI. MODIFICATION, REVOCATION, OR WITHDRAWAL OF PLAN .................................................... 40 A. Modification of Plan ....................................................................................................................... 40 B. Effect of Confirmation on Modifications ........................................................................................ 40 C. Revocation of Plan .......................................................................................................................... 40
Article XII. MISCELLANEOUS PROVISIONS ........................................................................................................ 40 A. Immediate Binding Effect ............................................................................................................... 40 B. Additional Documents .................................................................................................................... 41 C. Reservation of Rights ...................................................................................................................... 41 D. Successors and Assigns ................................................................................................................... 41 E. Service of Documents ..................................................................................................................... 41
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 7 of 103
iii
F. Term of Injunctions or Stays ........................................................................................................... 43 G. Entire Agreement ............................................................................................................................ 43 H. Plan Supplement Exhibits ............................................................................................................... 43 I. Governing Law ............................................................................................................................... 43 J. Nonseverability of Plan Provisions upon Confirmation .................................................................. 43 K. Closing of Chapter 11 Cases ........................................................................................................... 43 L. Section 1125(e) Good Faith Compliance ........................................................................................ 44
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 8 of 103
FIRST AMENDED JOINT PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION
OF APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC AND
ITS DEBTOR AFFILIATES PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
AirTek, LLC, AP Emissions Technologies, LLC, AP Exhaust Products DISC, Inc., APC Automotive
Technologies Intermediate Holdings, LLC, APC Automotive Technologies, LLC, Aristo, LLC, CWD Acquisition,
LLC, CWD Holding Corp., CWD Intermediate Holding Corp., CWD, LLC, Eastern Manufacturing, LLC, Qualis
Automotive, L.L.C., and Qualis Enterprises, Inc. (each a “Debtor” and, collectively, the “Debtors”) propose this joint
prepackaged plan of reorganization for the resolution of outstanding claims against and equity interests in the Debtors.
Capitalized terms used in the Plan and not otherwise defined have the meanings ascribed to such terms in Article I.A
of this Plan.
Although proposed jointly for administrative purposes, the Plan constitutes a separate Plan for each Debtor
for the resolution of outstanding Claims and Interests pursuant to the Bankruptcy Code. The Debtors seek to
consummate the Restructuring Transactions on the Effective Date of the Plan. Each Debtor is a proponent of the Plan
within the meaning of section 1129 of the Bankruptcy Code. The classifications of Claims and Interests set forth in
Article III of this Plan shall be deemed to apply separately with respect to each Plan proposed by each Debtor, as
applicable. The Plan does not contemplate substantive consolidation of any of the Debtors.
Reference is made to the Disclosure Statement, filed contemporaneously with the Plan, for a discussion of
the Debtors’ history, businesses, historical financial information, valuation, liquidation analysis, projections, and
operations as well as a summary and analysis of the Plan and certain related matters, including distributions to be
made under this Plan.
ALL HOLDERS OF CLAIMS AND INTERESTS ARE ENCOURAGED TO READ THE PLAN AND THE
DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.
Article I.
DEFINED TERMS AND RULES OF INTERPRETATION
A. Defined Terms
The following terms shall have the following meanings when used in capitalized form herein:
1. “ABL Agent” means Wells Fargo Bank, N.A. in its capacity as administrative agent and collateral
agent under the ABL Credit Agreement.
2. “ABL Claims” means any and all Claims derived from, based upon, or secured by the ABL Credit
Agreement or any other agreement, instrument, or document executed at any time in connection therewith, including
Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising thereunder or
related thereto, in each case, with respect to the ABL Loans.
3. “ABL Credit Agreement” means that certain ABL Credit Agreement, dated May 10, 2017 (as
amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms), by and among
APC and certain of its affiliates and subsidiaries, as borrower and guarantors, the ABL Agent, and the ABL Lenders.
4. “ABL DIP Agent” means Wells Fargo Bank, N.A. in its capacity as administrative agent and
collateral agent under the ABL DIP Facility.
5. “ABL DIP Credit Agreement” means the debtor-in-possession credit agreement (as amended,
restated, modified, supplemented, or replaced from time to time in accordance with its terms) to be entered into by the
Debtors, the ABL DIP Agent, and the ABL DIP Lenders.
6. “ABL DIP Facility” means that certain debtor-in-possession credit facility to be provided by the
ABL DIP Lenders on the terms of and subject to the conditions set forth in the ABL DIP Credit Agreement.
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 9 of 103
2
7. “ABL DIP Facility Claim” means any Claim derived from or based upon the ABL DIP Facility,
including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising under
or related to the ABL DIP Facility.
8. “ABL DIP Facility Documents” means any documentation necessary to effectuate the incurrence of
the ABL DIP Facility.
9. “ABL DIP Lenders” means the banks, financial institutions, and other lenders party to the ABL DIP
Facility from time to time.
10. “ABL Exit Facility” means the new $90 million asset-based revolving credit facility, which will
have the terms set forth in the ABL Exit Facility Documents.
11. “ABL Exit Facility Documents” means any documentation necessary to effectuate the incurrence of
the ABL Exit Facility.
12. “ABL Exit Lenders” means the banks, financial institutions, and other lenders party to the ABL Exit
Facility from time to time.
13. “ABL Facility” means that certain prepetition asset-based revolving loan facility provided for under
the ABL Credit Agreement.
14. “ABL Lenders” means the lenders party to the ABL Credit Agreement with respect to the “Loans”
and “Letters of Credit” as defined in the ABL Credit Agreement.
15. “ABL Loans” means the “Loans” and “Letters of Credit” as defined in the ABL Credit Agreement.
16. “Accrued Professional Compensation Claim” means, at any date, a Claim for all accrued fees and
reimbursable expenses for services rendered by a Retained Professional in the Chapter 11 Cases through and including
such date, to the extent that such fees and expenses have not been previously paid whether pursuant to a retention
order with respect to such Retained Professional or otherwise. To the extent that there is a Final Order denying some
or all of a Retained Professional’s fees or expenses, such denied amounts shall no longer be considered an Accrued
Professional Compensation Claim.
17. “Administrative Claim” means a Claim (other than DIP Facility Claims) for costs and expenses of
administration under sections 503(b), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual and
necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates
and operating the businesses of the Debtors; and (b) Accrued Professional Compensation Claims (to the extent
Allowed by the Bankruptcy Court).
18. “Affiliate” means, with respect to any Entity, any other Entity that would fall within the meaning of
the term “affiliate” set forth in section 101(2) of the Bankruptcy Code, if such Entity was a debtor in a case under the
Bankruptcy Code; provided that in no event shall “affiliate” include any entity that is not directly or indirectly
controlled by or under common control with the party of which such entity is an affiliate with respect to the defined
terms Exculpated Party, Released Party, and Releasing Party in the Plan.
19. “Agents” means, collectively, (a) the DIP Agents, (b) the ABL Agent, (c) the Term Agent, and (d)
the Distribution Agent.
20. “Allowed” means (a) any Claim (or portion thereof) that (i) is not Disputed within the applicable
period of time, if any, fixed by the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, (ii) is allowed,
compromised, settled, or otherwise resolved pursuant to the terms of the Plan, in any stipulation that is approved by a
Final Order of the Bankruptcy Court, or pursuant to any contract, instrument, indenture, or other agreement entered
into or assumed in connection herewith, or (iii) has been allowed by a Final Order of the Bankruptcy Court or (b) an
Interest (or portion thereof) that is reflected as outstanding in the stock transfer ledger or similar register of the
applicable Debtor as of the Effective Date. For the avoidance of doubt, any Claim or Interest (or portion thereof) that
has been disallowed pursuant to a Final Order shall not be an “Allowed” Claim or Interest.
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 10 of 103
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21. “Alternate Term Exit Facility” means an alternate term loan facility, as applicable, which will have
the terms set forth in the Plan Supplement and in the Alternate Term Exit Facility Documents.
22. “Alternate Term Exit Facility Documents” means any documentation necessary to effectuate the
incurrence of the Alternate Term Exit Facility.
23. “APC” means APC Automotive Technologies Intermediate Holdings, LLC, a Delaware limited
liability company.
24. “APC Holdings” means APC Automotive Technologies Holdings, LLC, a Delaware limited liability
company.
25. “Audax” means, collectively, Audax Private Equity Fund IV AIV, L.P., AG PE Fund IV Exhaust-
Aristo, LLC, Audax Co-Invest IV, L.P., AG TCI Exhaust-Aristo, LLC, AFF Co-Invest, L.P., and AG Grey Goose
Holdings, LLC.
26. “Avoidance Actions” means any and all avoidance, recovery, subordination, or other claims, actions,
or remedies that may be brought by or on behalf of the Debtors or their Estates or other authorized parties in interest
under the Bankruptcy Code or applicable non-bankruptcy law, including actions or remedies under sections 502, 510,
542, 544, 545, 547 through 553, and 724(a) of the Bankruptcy Code or under similar or related state or federal statutes
and common law, including fraudulent transfer laws.
27. “Ballot” means a ballot accompanying the Disclosure Statement upon which certain Holders of
Impaired Claims entitled to vote shall, among other things, indicate their acceptance or rejection of the Plan in
accordance with the Plan and the procedures governing the solicitation process.
28. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as amended
from time to time.
29. “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware or such
other court having jurisdiction over the Chapter 11 Cases.
30. “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure as promulgated by the United
States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. § 2075, as applicable to the
Chapter 11 Cases, and the general, local, and chambers rules of the Bankruptcy Court.
31. “Business Day” means any day, other than a Saturday, Sunday, or “legal holiday” (as that term is
defined in Bankruptcy Rule 9006(a)).
32. “Cash” means the legal tender of the United States of America.
33. “Causes of Action” means any claims, interests, damages, remedies, causes of action, demands,
rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities,
guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen,
existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured,
assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or
otherwise. Causes of Action also include: (a) all rights of setoff, counterclaim, or recoupment and claims under
contracts or for breaches of duties imposed by law; (b) the right to object to or otherwise contest Claims or Interests;
(c) claims pursuant to sections 362, 510, 542, 543, 544 through 550, or 553 of the Bankruptcy Code; and (d) such
claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the
Bankruptcy Code.
34. “Chapter 11 Cases” means (a) when used with reference to a particular Debtor, the chapter 11 case
filed for that Debtor under chapter 11 of the Bankruptcy Code in the Bankruptcy Court and (b) when used with
reference to all Debtors, the jointly administered chapter 11 cases for all of the Debtors.
35. “Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the
Debtors.
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 11 of 103
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36. “Class” means a category of Claims or Equity Interests as set forth in Article III of this Plan pursuant
to section 1122(a) of the Bankruptcy Code.
37. “Compensation and Benefits Programs” means all employment agreements and severance policies,
and all employment, compensation and benefit plans, policies, workers’ compensation programs, savings plans,
retirement plans, deferred compensation plans, supplemental executive retirement plans, healthcare plans, disability
plans, severance benefit plans, incentive plans, life and accidental death and dismemberment insurance plans, and
programs of the Debtors applicable to any of its employees and retirees.
38. “Confirmation” means the entry of the Confirmation Order by the Bankruptcy Court on the docket
of the Chapter 11 Cases.
39. “Confirmation Date” means the date upon which the Bankruptcy Court enters the
Confirmation Order on the docket of the Chapter 11 Cases.
40. “Confirmation Hearing” means the hearing(s) conducted by the Bankruptcy Court pursuant to
section 1128(a) of the Bankruptcy Code to consider confirmation of the Plan, as such hearing may be adjourned or
continued from time to time.
41. “Confirmation Order” means the order of the Bankruptcy Court confirming the Plan pursuant to
section 1129 of the Bankruptcy Code and approving the Disclosure Statement pursuant to section 1125 of the
Bankruptcy Code.
42. “Consenting Sponsors” means each of Audax, Crescent, Harvest, and VAP.
43. “Consenting Term Loan Lenders” means the Term Loan Lenders that are or become parties to the
Restructuring Support Agreement, solely in their capacity as such.
44. “Crescent” means Crescent Mezzanine Partners VII, L.P., Crescent Mezzanine Partners VII (LTL),
L.P., CBDC Universal Equity, Inc., CM7B APC Equity, LLC, and CM7C APC Equity, LLC.
45. “Cure” means all amounts, including an amount of $0.00, required to cure any monetary defaults
under any Executory Contract or Unexpired Lease (or such lesser amount as may be agreed upon by the parties under
an Executory Contract or Unexpired Lease) that is to be assumed by the Debtors pursuant to sections 365 or 1123 of
the Bankruptcy Code.
46. “Cure Claim” means a Claim based on the Debtors’ defaults on an Executory Contract or Unexpired
Lease at the time such Executory Contract or Unexpired Lease is assumed by the Debtors pursuant to sections 365 or
1123 of the Bankruptcy Code.
47. “D&O Liability Insurance Policies” means all insurance policies of any of the Debtors for directors’,
managers’, and officers’ liability existing as of the Petition Date.
48. “Debtor Release” means the releases set forth in Article IX.B of this Plan.
49. “Definitive Documents” means (a) the ABL Exit Facility Documents, (b) the Term Exit Facility
Documents; (c) the Alternate Term Exit Facility Documents (as applicable), (d) the New Common Equity Documents,
(e) the New Warrants Documents, (f) all agreements, interim and final orders, and/or amendments in connection with
the use of cash collateral, (g) all agreements, documents, interim and final orders, and/or amendments in connection
with the DIP Facilities, (h) the Plan, (i) the Plan Supplement, (j) the Disclosure Statement and related solicitation
materials, (k) the motions and related pleadings seeking approval of the Disclosure Statement and related solicitation
materials and scheduling a combined hearing for the Plan and the Disclosure Statement, and (l) the Confirmation
Order.
50. “DIP Agents” means, collectively, the ABL DIP Agent and the Term DIP Agent.
Case 20-11466-CSS Doc 165 Filed 07/08/20 Page 12 of 103
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51. “DIP Credit Agreements” means, collectively, the ABL DIP Credit Agreement and the Term DIP
Credit Agreement.
52. “DIP Facilities” means, collectively, the ABL DIP Facility and the Term DIP Facility.
53. “DIP Facilities Documents” means, collectively, the ABL DIP Facility Documents and the Term
DIP Facility Documents.
54. “DIP Facility Claims” means, collectively, the ABL DIP Facility Claims and the Term DIP Facility
Claims.
55. “DIP Fee” means 35% of the New Common Equity pursuant to the DIP Facilities Documents.
56. “DIP Lenders” means, collectively, the ABL DIP Lenders and the Term DIP Lenders.
57. “DIP Orders” means, collectively, the Interim DIP Order and the Final DIP Order.
58. “Disclosure Statement” means the disclosure statement for the Plan, including all exhibits and
schedules thereto, as amended, supplemented, or modified from time to time, that is prepared and distributed in
accordance with sections 1125, 1126(b), and 1145 of the Bankruptcy Code, Bankruptcy Rule 3018, and other
applicable law.
59. “Disputed” means, with respect to a Claim or Interest (or portion thereof), that an objection to such
Claim or Interest (or portion thereof) has been filed.
60. “Distribution Agent” means the Debtors or any Entity or Entities chosen by the Debtors, which
Entities may include the Notice and Claims Agent, to make or to facilitate distributions required by the Plan.
61. “Distribution Record Date” means the date for determining which Holders of Claims are eligible to
receive distributions under the Plan, which date shall be the Confirmation Date.
62. “DOJ Settlement” means that certain settlement between the Debtors and the U.S. Department of
Justice regarding the civil investigation under the False Claims Act in connection with required import duties for
certain brake pad entries.
63. “Effective Date” means the date selected by the Debtors and the Requisite Consenting Term Loan
Lenders that is a Business Day no later than fourteen (14) calendar days after the Confirmation Order is entered and
which (a) no stay of the Confirmation Order is in effect and (b) all conditions specified in Article VIII.A of this Plan
have been (i) satisfied or (ii) waived pursuant to Article VIII.A of this Plan.
64. “Entity” means an “entity” as defined in section 101(15) of the Bankruptcy Code.
65. “Equity Interest” means any issued, unissued, authorized, or outstanding shares of common equity,
preferred stock, or other instrument evidencing an ownership interest in a Debtor, whether or not transferable, together
with any warrants, equity-based awards or contractual rights to purchase or acquire such equity interests at any time
and all rights arising with respect thereto that existed immediately before the Effective Date including any claims
arising from the ownership of any instrument evidencing an ownership interest in a Debtor; provided that Equity
Interest does not include any Intercompany Interest.
66. “Estate” means, as to each Debtor, the estate created for such Debtor in its Chapter 11 Case pursuant
to sections 301 and 541 of the Bankruptcy Code.
67. “Exculpated Party” means each of the following, solely in its capacity as such: (a) the Debtors;
(b) the Reorganized Debtors; (c) with respect to each of the foregoing parties in clause (a), each of such Entity’s
current and former Affiliates; and (d) with respect to each of the foregoing parties in clauses (a) through (c), each of
such party’s current and former directors, managers, officers, principals, members, managed accounts or funds, fund
advisors, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors,
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successors, assigns, subsidiaries, agents, advisory board members, financial advisors, partners, attorneys, accountants,
investment bankers, consultants, representatives, and other professionals.
68. “Executory Contract” means a contract or lease to which one or more of the Debtors is a party that
is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
69. “Exit Facilities” means, collectively, the ABL Exit Facility and the Term Exit Facility.
70. “Exit Facilities Documents” means the ABL Exit Facility Documents and the Term Exit Facility
Documents.
71. “Final DIP Order” means an order of the Bankruptcy Court authorizing, among other things, on a
final basis, the Debtors to (a) enter into the DIP Facilities and incur postpetition obligations thereunder and (b) use
cash collateral pursuant to the terms set forth therein.
72. “Final Order” means an order or judgment of the Bankruptcy Court or other court of competent
jurisdiction with respect to the relevant subject matter that has not been reversed, stayed, modified, or amended, and
as to which the time to appeal, seek reconsideration under Rule 59(b) or 59(e) of the Federal Rules of Civil Procedure,
seek a new trial, reargument, or rehearing and, where applicable, petition for certiorari has expired and no appeal,
motion for reconsideration under Rule 59(b) or 59(e) of the Federal Rules of Civil Procedure, motion for a new trial,
reargument or rehearing or petition for certiorari has been timely taken, or as to which any appeal that has been taken
or any petition for certiorari that has been or may be filed has been resolved by the highest court to which the order or
judgment was appealed or from which certiorari was sought, or as to which any motion for reconsideration that has
been filed pursuant to Rule 59(b) or 59(e) of the Federal Rules of Civil Procedure or any motion for a new trial,
reargument, or rehearing shall have been denied, resulted in no modification of such order, or has otherwise been
dismissed with prejudice; provided that the possibility that a motion pursuant to Rule 60 of the Federal Rules of Civil
Procedure or Bankruptcy Rule 9024, or any analogous rule, may be filed relating to such order or judgment shall not
cause such order or judgment not to be a Final Order.
73. “FTI” means FTI Consulting, Inc., as financial advisor to the Term Loan Lender Group.
74. “General Administrative Claim” means any Administrative Claim, other than an Accrued
Professional Compensation Claim and Claims for fees and expenses pursuant to 28 U.S.C § 1930(a).
75. “General Unsecured Claim” means any unsecured Claim against any Debtor as of Petition Date
other than (a) a DIP Facility Claim, (b) an Administrative Claim, (c) an Accrued Professional Compensation Claim,
(d) a Priority Tax Claim, (e) an Other Priority Claim, (f) an ABL Claim, (g) a Term Claim, (h) an Intercompany Claim
against one or more of the Debtors that is not entitled to priority under the Bankruptcy Code or Final Order of the
Bankruptcy Court, or (i) the Sponsor Claims.
76. “Governmental Unit” means a “governmental unit” as defined in section 101(27) of the
Bankruptcy Code.
77. “Harvest” means, collectively, Harvest Partners VII, L.P., Harvest Partners VII (Parallel), L.P.,
Harvest Strategic Associates VII, L.P., Harvest APC Holdings, LLC, and Harvest APC Blocker Purchaser, L.P.
78. “Holder” means an Entity holding a Claim or Interest.
79. “Impaired” means “impaired” within the meaning of section 1124 of the Bankruptcy Code.
80. “Impaired Class” means a Class that is Impaired.
81. “Indemnification Provisions” means each of the Debtors’ indemnification provisions currently in
place, whether in the Debtors’ bylaws, certificates of incorporation or formation, limited liability company
agreements, other organizational or formation documents, board resolutions, management or indemnification
agreements, or employment contracts, for the Debtors’ current and former directors, officers, managers, employees,
attorneys, other professionals, and agents and such current and former directors, officers, and managers’ respective
Affiliates.
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82. “Intercompany Claims” means, collectively, any Claim held by a Debtor against another Debtor or
an Affiliate of a Debtor or any Claim held by an Affiliate of a Debtor against a Debtor.
83. “Intercompany Interests” means an Equity Interest in a Debtor held by another Debtor.
84. “Interests” means, collectively, Equity Interests and Intercompany Interests.
85. “Interim DIP Order” means an order of the Bankruptcy Court authorizing, among other things, on
an interim basis, the Debtors to (a) enter into the DIP Facilities and incur postpetition obligations thereunder and
(b) use cash collateral pursuant to the terms set forth therein.
86. “King & Spalding” means King & Spalding LLP, as counsel to the Term Loan Lender Group.
87. “Lien” means a “lien” as defined in section 101(37) of the Bankruptcy Code.
88. “Local Bankruptcy Rules” means the Local Bankruptcy Rules for the District of Delaware.
89. “Management Incentive Plan” means a post-emergence customary management equity incentive
plan, in form and substance acceptable to the Requisite Consenting Term Loan Lenders and otherwise consistent with
the terms of the Restructuring Support Agreement, to be adopted by the New Board, under which 10% of the New
Common Equity on a fully diluted basis shall be reserved as of the Effective Date for issuance as awards thereunder
in the form of profits interests, restricted stock, and/or other forms of incentive based equity.
90. “New Board” means the board of directors of the parent company of the Reorganized Debtors, as
determined in accordance with the Restructuring Support Agreement and the New Common Equity Documents.
91. “New Common Equity” means a single class of equity interests in a Reorganized Debtor entity to be
authorized, issued, or reserved on the Effective Date pursuant to the Plan, in accordance with the terms and conditions
set forth in the Restructuring Support Agreement, and as provided in the Restructuring Transactions Memorandum.
92. “New Common Equity Documents” means any shareholder agreement, limited liability company
agreement, operating agreement, organizational or similar governing documents, evidence of equity interests
(including share or unit certificates or other mutually agreed evidence of equity interests to be issued in accordance
with the Restructuring Support Agreement), or other governance documents for the Reorganized Debtors.
93. “New Equity” means the New Common Equity and the New Warrants.
94. “New Equity Documents” means the New Common Equity Documents and the New Warrants
Documents.
95. “New Warrants” means new warrants for 5% of the New Common Equity struck at an exercise price
equal to 105% of the sum of (i) the aggregate obligations under the DIP Facilities, (ii) the aggregate obligations under
the ABL Facility, and (iii) the outstanding Term A Debt immediately prior to the Plan Effective Date.
96. “New Warrants Documents” means the definitive documentation with respect to the New Warrants.
97. “Notice and Claims Agent” means Bankruptcy Management Solutions, Inc. d/b/a Stretto in its
capacity as noticing, claims, and solicitation agent for the Debtors, pursuant to an order of the Bankruptcy Court.
98. “Other Priority Claim” means any Claim entitled to priority in right of payment under section 507(a)
of the Bankruptcy Code, other than a Priority Tax Claim or Claims entitled to administrative expense priority pursuant
to section 503(b)(9) of the Bankruptcy Code.
99. “Other Secured Claim” means any Secured Claim against the Debtors other than the DIP Facility
Claims and the Secured Lender Claims.
100. “Petition Date” means the date on which each of the Debtors commenced the Chapter 11 Cases.
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101. “Plan” means this joint prepackaged plan of reorganization under chapter 11 of the Bankruptcy
Code, either in its present form or as it may be altered, amended, modified, or supplemented from time to time in
accordance with the Bankruptcy Code, the Bankruptcy Rules, the Restructuring Support Agreement, or the terms
hereof, as the case may be, and the Plan Supplement, which is incorporated herein by reference, including all exhibits
and schedules hereto and thereto.
102. “Plan Supplement” means a supplemental appendix to the Plan that shall be filed by the Debtors no
later than two (2) days before the voting deadline to accept or reject the Plan or such later date as may be approved by
the Bankruptcy Court on notice to parties in interests and that shall include, among other things, draft forms of
documents (or term sheets thereof), schedules, and exhibits to the Plan, in each case subject to the terms and provisions
of the Restructuring Support Agreement (including any consent rights as to the form and substance of such documents
set forth therein) and as may be amended, modified, or supplemented from time to time on or prior to the Effective
Date in accordance with the terms hereof, the Bankruptcy Code, the Bankruptcy Rules, and the Restructuring Support
Agreement, including the following documents: (a) the New Equity Documents; (b) to the extent known, the identity
of the members of the New Board; (c) the Exit Facilities Documents; (d) the Restructuring Transactions Memorandum,
(e) the Alternate Term Exit Facility Documents (as applicable), and (f) any and all other documentation necessary to
effectuate the Restructuring Transactions or that is contemplated by the Plan.
103. “Priority Tax Claim” means a Claim of a Governmental Unit of the kind specified in
section 507(a)(8) of the Bankruptcy Code.
104. “Pro Rata Share” or “Pro Rata” means a distribution equal in amount to the ratio of the amount of
such Allowed Claim in relation to the aggregate amount of all Allowed Claims in its Class.
105. “Professional Fee Escrow Account” means an interest-bearing escrow account in an amount equal
to the Professional Fee Reserve Amount funded and maintained by the Reorganized Debtors on and after the
Effective Date solely for the purpose of paying all Allowed and unpaid fees and expenses of Retained Professionals
in the Chapter 11 Cases.
106. “Professional Fee Reserve Amount” means the aggregate Accrued Professional Compensation
through the Effective Date as estimated by the Retained Professionals in accordance with Article II.A.2.c of this Plan.
107. “Proof of Claim” means a proof of Claim filed against any Debtor in the Chapter 11 Cases.
108. “Quarterly Fees” has the meaning ascribed to such term in Article II.D of this Plan.
109. “Reinstatement” or “Reinstated” means, with respect to Claims and Interests, that the Claim or
Interest shall be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code.
110. “Released Party” means each of the following, solely in its capacity as such: (i)(a) the Debtors; (b)
the Reorganized Debtors; (c) APC Holdings; (d) with respect to each of the foregoing parties in clauses (i)(a) and
(i)(c), each of such Entity’s current and former Affiliates and direct or indirect equity holders; and (e) with respect to
each of the foregoing parties in clauses (i)(a) through (i)(d), each of such party’s current and former directors,
managers, officers, principals, members, managed accounts or funds, fund advisors, employees, equity holders
(regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries,
agents, advisory board members, financial advisors, partners, attorneys, accountants, investment bankers, consultants,
representatives, and other professionals; and (ii)(a) the DIP Agents; (b) the DIP Lenders; (c) the ABL Agent; (d) the
ABL Lenders; (e) the Consenting Term Loan Lenders; (f) the Term Agent; (g) the Consenting Sponsors and their
Affiliates; (h) with respect to each of the foregoing parties in clauses (ii)(a) through (ii)(g), each of such Entity’s
current and former Affiliates; and (i) with respect to each of the foregoing parties in clauses (ii)(a) through (ii)(h),
each of such party’s current and former directors, managers, officers, principals, members, employees, equity holders
(regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries,
agents, advisory board members, financial advisors, investment advisors, partners, attorneys, accountants, investment
bankers, consultants, representatives, and other professionals; provided that for purposes of this definition, in no event
shall “Affiliate” include any entity that is not directly or indirectly, controlled by, or under common control with, the
party of which such entity is an affiliate; provided, further, that any holder of a Claim or Interest that opts out of, or
objects to, the releases contained in the Plan shall not be a “Released Party.”
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111. “Releasing Party” means each of the following, solely in its capacity as such: (a) the DIP Agents;
(b) the DIP Lenders; (c) the ABL Agent; (d) the ABL Lenders; (e) the Consenting Term Loan Lenders; (f) the Term
Agent; (g) the Consenting Sponsors; (h) with respect to the foregoing clauses (a) through (g), each such Entity and its
current and former Affiliates; and (i) with respect to the foregoing clauses (a) through (h), each such party’s current
and former directors, managers, officers, principals, members, employees, equity holders (regardless of whether such
interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board
members, financial advisors, investment advisors, partners, attorneys, accountants, investment bankers, consultants,
representatives, and other professionals; (j) without limiting the foregoing, (1) each holder of a Claim or Interest that
voted to accept the Plan, (2) each holder of a Claim or Interest that is Unimpaired under the Plan, where the applicable
Claims or Interests have been fully paid or otherwise satisfied in accordance with the Plan, (3) holders of Claims
whose vote to accept or reject the Plan was solicited but who did not vote either to accept or to reject the Plan, and
(4) holders of Claims who voted to reject the Plan and who did not opt out of granting the releases provided by the
Plan; provided that for purposes of this definition, in no event shall “Affiliate” include any entity that is not directly
or indirectly controlled by, or under common control with, the party of which such entity is an affiliate; provided,
further, that any holder of a Claim or Interest that validly opts out of, or objects to, the releases contained in the Plan
shall not be a “Releasing Party.”
112. “Reorganized Debtors” means the Debtors, as reorganized pursuant to and under the Plan, or any
successor thereto by merger, consolidation, or otherwise on or after the Effective Date, including any transferee,
assign, or successor of any Reorganized Debtor created to issue the New Common Equity as determined by the Debtors
and the Requisite Consenting Term Loan Lenders prior to the Effective Date.
113. “Representatives” means, with regard to an Entity, current and former officers, directors, members
(including ex officio members), managers, employees, partners, advisors, attorneys, professionals, accountants,
investment bankers, investment advisors, actuaries, Affiliates, financial advisors, consultants, agents, and other
representatives of each of the foregoing Entities (whether current or former, in each case in his, her or its capacity as
such).
114. “Requisite Consenting Sponsors” means each of Audax, Crescent, Harvest, and VAP.
115. “Requisite Consenting Term Loan Lenders” means the Consenting Term Loan Lenders who hold,
in the aggregate, greater than fifty (50) percent in principal amount outstanding of all Term Claims held by the
Consenting Term Loan Lenders.
116. “Required Parties” means, collectively, the Debtors, the Requisite Consenting Sponsors, and the
Requisite Consenting Term Loan Lenders.
117. “Restructuring Support Agreement” means that certain Restructuring Support Agreement (including
the exhibits and annexes attached thereto) entered into on May 30, 2020 (as amended or supplemented from time to
time in accordance with the terms thereof), by and among the Debtors, the Consenting Sponsors, the Consenting
Lenders, and any subsequent Entity that becomes a party thereto pursuant to the terms thereof, as attached to the
Disclosure Statement as Exhibit B.
118. “Restructuring Transactions” means the transactions described in Article IV.C of this Plan.
119. “Restructuring Transactions Memorandum” means that certain memorandum regarding the
Restructuring Transactions under the Plan that may be included in the Plan Supplement, which memorandum must be
consistent with the terms and conditions set forth in the Restructuring Support Agreement and otherwise in form and
substance reasonably acceptable to the Debtors and the Requisite Consenting Term Loan Lenders.
120. “Retained Professional” means an Entity: (a) employed in the Chapter 11 Cases pursuant to a Final
Order in accordance with sections 327 and 1103 of the Bankruptcy Code and to be compensated for services rendered
prior to the Effective Date, pursuant to sections 327, 328, 329, 330, or 331 of the Bankruptcy Code; or (b) for which
compensation and reimbursement has been allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the
Bankruptcy Code.
121. “SEC” means the Securities and Exchange Commission.
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122. “Secured Claim” means, when referring to a Claim, a Claim: (a) secured by a Lien on property in
which the Estate has an interest, which Lien is valid, perfected, and enforceable pursuant to applicable law or by Final
Order of the Bankruptcy Court, or that is subject to setoff pursuant to section 553 of the Bankruptcy Code, to the
extent of the value of the creditor’s interest in the Estate’s interest in such property or to the extent of the amount
subject to setoff, as applicable, as determined pursuant to section 506(a) of the Bankruptcy Code or (b) otherwise
Allowed pursuant to the Plan or Final Order of the Bankruptcy Court as a secured claim.
123. “Secured Lender Claims” means the ABL Claims and the Term Claims.
124. “Secured Lenders” means those Entities that are Holders of ABL Claims and/or Term Claims
125. “Securities” means any instruments that qualify under section 2(a)(1) of the Securities Act,
including the New Equity.
126. “Securities Act” means the Securities Act of 1933, as now in effect or hereafter amended, or any
regulations promulgated thereunder.
127. “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.
128. “Sponsor Claims” means any and all outstanding Claims that APC Holdings, the Consenting
Sponsors, and/or any controlled affiliates of the Consenting Sponsors, solely in their capacities as such, may have
against the Debtors; provided that the Sponsor Claims shall not include (a) any Term Claims held by any Consenting
Sponsor, (b) rights of any of the Consenting Sponsors based on, arising from, or related to the Plan, (c) Claims based
on, arising from, or related to any Indemnification Provisions or D&O Liability Insurance Policies, or (d) any Claims
entered into on an arm’s length basis in the ordinary course of business by any portfolio company of the Consenting
Sponsors.
129. “Term A Claims” means any and all Claims held by Term A Lenders derived from, based upon, or
secured by the Term Credit Agreement or any other agreement, instrument, or document executed at any time in
connection therewith, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other
charges arising thereunder or related thereto.
130. “Term A Debt” means the Term A-1 Loans, Term A-2 Loans, and Term A-3 Loans, as such terms
are defined in the Term Credit Agreement, outstanding under the Term Credit Agreement.
131. “Term A Lenders” means the lenders party to the Term Credit Agreement holding Term A Debt.
132. “Term Agent” means Wilmington Trust, N.A. in its capacity as administrative agent and collateral
agent under the Term Credit Agreement.
133. “Term B Claims” means any and all Claims held by Term B Lenders derived from, based upon, or
secured by the Term Credit Agreement or any other agreement, instrument, or document executed at any time in
connection therewith, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other
charges arising thereunder or related thereto.
134. “Term B Debt” means the Term B Loans, as such term is defined in the Term Credit Agreement,
outstanding under the Term Credit Agreement.
135. “Term B Lenders” means the lenders party to the Term Credit Agreement holding Term B Debt.
136. “Term Claims” means the Term A Claims and the Term B Claims.
137. “Term Credit Agreement” means that certain First Lien Credit Agreement, dated May 10, 2017 (as
amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms), by and among
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APC and certain of its affiliates and subsidiaries, as borrowers and guarantors, the Term Agent, and the Term Loan
Lenders.
138. “Term Credit Facility” means that certain term loan facility provided for under the Term Credit
Agreement.
139. “Term DIP Agent” means Wilmington Trust, N.A. in its capacity as administrative agent and
collateral agent under the Term DIP Facility.
140. “Term DIP Credit Agreement” means, to the extent applicable, the debtor-in-possession credit
agreement (as amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms)
to be entered into by the Debtors, the Term DIP Agent, and the Term DIP Lenders.
141. “Term DIP Facility” means a new money term debtor-in-possession credit facility in aggregate
principal amount of $50 million on the terms of and subject to the conditions set forth in the Term DIP Credit
Agreement.
142. “Term DIP Facility Claim” means any Claim derived from or based upon the Term DIP Facility,
including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising under
or related to the Term DIP Facility.
143. “Term DIP Facility Documents” means any documentation necessary to effectuate the incurrence
of the Term DIP Facility.
144. “Term DIP Lenders” means the banks, financial institutions, and other lenders party to the Term
DIP Facility from time to time.
145. “Term Exit Facility” means the $50 million term loan facility, which will have the terms set forth in
the Term Exit Facility Documents.
146. “Term Exit Facility Documents” means any documentation necessary to effectuate the incurrence
of the Term Exit Facility.
147. “Term Exit Lenders” means the banks, financial institutions, and other lenders party to the Term
Exit Facility from time to time.
148. “Term Loan Lenders” means, collectively, the Term A Lenders and Term B Lenders.
149. “Term Loan Lender Group” means the ad hoc group of Consenting Term Loan Lenders represented
by King & Spalding and FTI.
150. “Term Debt” means the Term A Debt and the Term B Debt outstanding under the Term Credit
Agreement.
151. “Third-Party Release” means the releases set forth in Article IX.C of this Plan.
152. “Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to
assumption or rejection under section 365 of the Bankruptcy Code.
153. “Unimpaired” means, with respect to a Claim, Equity Interest, or Class of Claims or Equity Interests,
not “impaired” within the meaning of sections 1123(a)(4) and 1124 of the Bankruptcy Code.
154. “United States Trustee” means the United States Trustee for the District of Delaware.
155. “VAP” means VAP Holdings, Inc.
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B. Rules of Interpretation
1. For purposes herein: (a) in the appropriate context, each term, whether stated in the singular or the
plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender
shall include the masculine, feminine, and the neuter gender; (b) unless otherwise specified, any reference herein to a
contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular
terms and conditions means that the referenced document shall be substantially in that form or substantially on those
terms and conditions; (c) unless otherwise specified, any reference herein to an existing document or exhibit having
been filed or to be filed shall mean that document or exhibit, as it may thereafter be amended, modified, or
supplemented; (d) unless otherwise specified, all references herein to “Articles” are references to Articles of this Plan;
(e) the words ‘‘herein,’’ “hereof,” and ‘‘hereto’’ refer to the Plan in its entirety rather than to a particular portion of
the Plan; (f) the words “include” and “including” and variations thereof shall not be deemed to be terms of limitation
and shall be deemed to be followed by the words “without limitation”; (g) references to “shareholders,” “directors,”
and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the
applicable state limited liability company laws; (h) references to “Proofs of Claim,” “holders of Claims,” “Disputed
Claims,” and the like shall include “Proofs of Interest,” “holders of Interests,” “Disputed Interests,” and the like, as
applicable; (i) captions and headings to Articles are inserted for convenience of reference only and are not intended to
be a part of or to affect the interpretation hereof; (j) unless otherwise specified herein, the rules of construction set
forth in section 102 of the Bankruptcy Code shall apply; (k) any term used in capitalized form herein that is not
otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned
to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be; and (l) any effectuating provisions
may be interpreted by the Reorganized Debtors in such a manner that is consistent with the overall purpose and intent
of the Plan without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity, subject
to the terms of the Restructuring Support Agreement, and such interpretation shall control.
2. All references in the Plan to monetary figures refer to currency of the United States of America,
unless otherwise expressly provided.
3. Except as otherwise specifically provided in the Plan to the contrary, references in the Plan to the
Debtors or to the Reorganized Debtors mean the Debtors and the Reorganized Debtors, as applicable, to the extent the
context requires.
C. Computation of Time
Unless otherwise specifically stated in the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply in
computing any period of time prescribed or allowed in the Plan. If the date on which a transaction may occur pursuant
to the Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next
succeeding Business Day. Any references to the Effective Date shall mean the Effective Date or as soon as reasonably
practicable thereafter unless otherwise specified herein.
D. Controlling Document
In the event of an inconsistency between the Plan, the Restructuring Support Agreement, and the Disclosure
Statement, the terms of the Plan shall control in all respects. In the event of an inconsistency between the Plan and
the Plan Supplement, the Plan shall control. In the event of an inconsistency between the Plan and the Confirmation
Order, the Confirmation Order shall control.
E. Restructuring Support Agreement
Notwithstanding anything to the contrary in the Plan, the Plan Supplement, the Confirmation Order, or the
Disclosure Statement, any and all consent and consultation rights in the Restructuring Support Agreement with respect
to the form and substance of the Plan, the Plan Supplement, and any other documents relating to the Restructuring
Transactions, including any amendments, restatements, supplements, or other modifications to such documents and
any consents, waivers, or other deviations under or from any such documents, shall be incorporated by reference
herein and fully enforceable as if stated in full herein.
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Article II.
ADMINISTRATIVE CLAIMS, DIP FACILITY CLAIMS,
PRIORITY TAX CLAIMS, AND UNITED STATES TRUSTEE STATUTORY FEES
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, DIP Facility Claims,
and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set
forth in Article III of this Plan.
A. Administrative Claims
1. General Administrative Claims
Subject to the provisions of sections 328, 330(a), and 331 of the Bankruptcy Code and except to the extent
that a Holder of an Allowed General Administrative Claim and the applicable Debtor before the Effective Date or the
applicable Reorganized Debtor after the Effective Date agree to less favorable treatment, each Holder of an Allowed
General Administrative Claim will be paid the full unpaid amount of such Allowed General Administrative Claim in
Cash: (a) if such Allowed General Administrative Claim is based on liabilities that the Debtors incurred in the ordinary
course of business after the Petition Date, in accordance with the terms and conditions of the particular transaction
giving rise to such Allowed General Administrative Claim and without any further action by any Holder of such
Allowed General Administrative Claim; (b) if such Allowed General Administrative Claim is due as of the Effective
Date, on the Effective Date, or, if such Allowed General Administrative Claim is not due as of the Effective Date, on
the date that such Allowed General Administrative Claim becomes due or as soon as reasonably practicable thereafter;
(c) if a General Administrative Claim is not Allowed as of the Effective Date, on the date that is no later than sixty
(60) days after the date on which an order Allowing such General Administrative Claim becomes a Final Order of the
Bankruptcy Court or as soon as reasonably practicable thereafter; or (d) at such time and upon such terms as set forth
in a Final Order of the Bankruptcy Court.
2. Professional Compensation Claims
a. Final Fee Applications
All final requests for Accrued Professional Compensation Claims shall be filed no later than sixty (60) days
after the Effective Date. The amount of Accrued Professional Compensation Claims owed to the Retained
Professionals shall be paid in Cash to such Retained Professionals from funds held in the Professional Fee Escrow
Account after such Claims are Allowed by a Final Order. To the extent that funds held in the Professional Fee Escrow
Account are unable to satisfy the amount of Accrued Professional Compensation Claims owed to the Retained
Professionals, such Retained Professionals shall have an Allowed Administrative Claim for any such deficiency,
which shall be satisfied in accordance with Article II.A.1 of this Plan. After all Allowed Accrued Professional
Compensation Claims have been paid in full, any excess amounts remaining in the Professional Fee Escrow Account
shall be returned to the Reorganized Debtors.
b. Professional Fee Escrow Account
On the Effective Date, the Debtors or Reorganized Debtors, as applicable, shall establish and fund the
Professional Fee Escrow Account with Cash equal to the Professional Fee Reserve Amount. The Professional Fee
Escrow Account shall be maintained in trust solely for the Retained Professionals. Such funds shall not be considered
property of the Estates of the Debtors or the Reorganized Debtors.
c. Professional Fee Reserve Amount
To receive payment for unbilled fees and expenses incurred through the Effective Date, the Retained
Professionals shall estimate in good faith their Accrued Professional Compensation Claims (taking into account any
retainers) prior to and as of the Effective Date and shall deliver such estimate to the Debtors and counsel to the Term
Loan Lender Group at least three (3) calendar days prior to the Effective Date. If a Retained Professional does not
provide such estimate, the Reorganized Debtors may estimate the unbilled fees and expenses of such Retained
Professional; provided that such estimate shall not be considered an admission or limitation with respect to the fees
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and expenses of such Retained Professional. The total amount so estimated as of the Effective Date shall comprise
the Professional Fee Reserve Amount.
d. Post-Effective Date Fees and Expenses
Upon the Effective Date, any requirement that Retained Professionals comply with sections 327 through 331
and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall
terminate. Each Debtor or Reorganized Debtor, as applicable, may employ and pay any fees and expenses of any
professional, including any Retained Professional, in the ordinary course of business without any further notice to or
action, order, or approval of the Bankruptcy Court, including with respect to any transaction, reorganization, or success
fees payable by virtue of the consummation of this Plan or the occurrence of the Effective Date.
The Debtors and Reorganized Debtors, as applicable, shall pay, within ten (10) Business Days after
submission of a detailed invoice to the Debtors or Reorganized Debtors, as applicable, all outstanding reasonable and
documented fees and out-of-pocket expenses of the advisors to the Term Loan Lender Group. If the Debtors or the
Reorganized Debtors dispute the reasonableness of any such invoice, the Debtors or Reorganized Debtors, as
applicable, or the affected professional may submit such dispute to the Bankruptcy Court for a determination of the
reasonableness of any such invoice, and the disputed portion of such invoice shall not be paid until the dispute is
resolved. The undisputed portion of such reasonable fees and expenses shall be paid as provided herein. The Term
Loan Lender Group’s counsel fees shall not be paid to the extent those fees are on account of defending a fee dispute
as to counsel fees.
e. Substantial Contribution Compensation and Expenses
Except as otherwise specifically provided in the Plan, any Entity that requests compensation or expense
reimbursement for making a substantial contribution in the Chapter 11 Cases pursuant to sections 503(b)(3), (4), and
(5) of the Bankruptcy Code must file an application and serve such application on counsel for the Debtors or
Reorganized Debtors, as applicable, and as required by the Bankruptcy Court, the Bankruptcy Code, and the
Bankruptcy Rules on or before three (3) Business Days after the Confirmation Date.
B. DIP Facility Claims
Notwithstanding anything to the contrary herein, Holders of Allowed DIP Facility Claims, in exchange for
full and final satisfaction, settlement, release, and discharge of all DIP Facility Claims (other than Claims under the
DIP Facilities that expressly survive the termination thereof), on the Effective Date, all amounts outstanding under
the DIP Facilities on the Effective Date, unless a Holder agrees to less favorable treatment, shall receive (1) solely
with respect to the ABL DIP Lenders, its pro rata share of the ABL Exit Facility and (2) solely with respect to the
Term DIP Lenders, its pro rata share of the Term Exit Facility, unless the required Term DIP Lenders have consented
to the Reorganized Debtors entering into an Alternate Term Exit Facility in connection with the occurrence of the
Effective Date, in which case, the DIP Term Loans shall be repaid in full in cash on the Effective Date from the
proceeds of the Alternate Term Exit Facility.
C. Priority Tax Claims
Except to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in
exchange for full and final satisfaction, settlement, release, and discharge of each Allowed Priority Tax Claim, each
Holder of an Allowed Priority Tax Claim due and payable on or prior to the Effective Date shall be treated pursuant
to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim is not due and owing
on or before the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement
between the Debtors and such Holder or as may be due and payable under applicable non-bankruptcy law or in the
ordinary course of business.
D. United States Trustee Statutory Fees
The Debtors and the Reorganized Debtors, as applicable, shall pay fees payable pursuant to
28 U.S.C § 1930(a), including fees and expenses payable to the United States Trustee (“Quarterly Fees”), for each
quarter (including any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever
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occurs first. Notwithstanding anything else to the contrary in the Plan, each of the Debtors and the Reorganized
Debtors shall be jointly and severally liable to pay all Quarterly Fees accruing from and after the Effective Date until
the earliest to occur of that particular Debtor’s case being converted to a case under chapter 7 of the Bankruptcy Code,
dismissed, or closed. The U.S. Trustee shall not be required to file a request for payment of its Quarterly Fees, which
shall be deemed an Administrative Claim against the Debtors and their Estates. The Debtors shall file all quarterly
reports that become due prior to the when they become due, in a form reasonably acceptable to the U.S. Trustee, which
reports shall include a separate schedule of disbursements made by each Debtor, and when applicable, each
Reorganized Debtor during the applicable period, attested by an authorized representative.
Article III.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
A. Classification of Claims
This Plan constitutes a separate chapter 11 plan of reorganization for each Debtor. Except for the Claims
addressed in Article II above (or as otherwise set forth herein), all Claims and Interests are placed in Classes for each
of the Debtors. In accordance with section 1123(a)(1) of the Bankruptcy Code, the Debtors have not classified
Administrative Claims, DIP Facility Claims, and Priority Tax Claims, as described in Article II.
The categories of Claims and Interests listed below classify Claims and Interests for all purposes, including
voting, Confirmation, and distribution pursuant hereto and pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy
Code. The Plan deems a Claim or Interest to be classified in a particular Class only to the extent that the Claim or
Interest qualifies within the description of that Class and shall be deemed classified in a different Class to the extent
that any remainder of such Claim or Interest qualifies within the description of such different Class. A Claim or an
Interest is in a particular Class only to the extent that any such Claim or Interest is Allowed in that Class and has not
been paid or otherwise settled prior to the Effective Date.
Summary of Classification and Treatment of Claims and Interests
Class Claim or Interest Status Voting Rights
1 Other Secured Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
2 Other Priority Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
3 ABL Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
4 Term Claims Impaired Entitled to Vote
5 General Unsecured Claims Unimpaired Not Entitled to Vote
(Presumed to Accept)
6 Intercompany Claims Unimpaired /
Impaired
Not Entitled to Vote
(Presumed to Accept /
Deemed to Reject)
7 Intercompany Interests Unimpaired /
Impaired
Not Entitled to Vote
(Presumed to Accept /
Deemed to Reject)
8 Equity Interests Impaired Not Entitled to Vote
(Deemed to Reject)
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B. Treatment of Claims and Interests1
1. Class 1 — Other Secured Claims
a. Classification: Class 1 consists of all Other Secured Claims.
b. Treatment: Except to the extent that a Holder of an Allowed Other Secured Claim agrees
to less favorable treatment, in exchange for full and final satisfaction, settlement, release,
and discharge of each Other Secured Claim, each Holder of an Allowed Other Secured
Claim shall receive the following, at the option of the applicable Debtor:
(i) payment in full in Cash in the ordinary course of business;
(ii) the collateral securing its Allowed Other Secured Claim and payment of any
interest required under section 506(b) of the Bankruptcy Code;
(iii) Reinstatement of such Allowed Other Secured Claim; or
(iv) such other treatment rendering such Allowed Other Secured Claim Unimpaired.
c. Voting: Class 1 is Unimpaired, and Holders of Class 1 Other Secured Claims are
conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code. Therefore, Holders of Class 1 Other Secured Claims are not entitled to
vote to accept or reject the Plan.
2. Class 2 — Other Priority Claims
a. Classification: Class 2 consists of all Other Priority Claims.
b. Treatment: Except to the extent that a Holder of an Allowed Other Priority Claim agrees
to less favorable treatment, in exchange for full and final satisfaction, settlement, release,
and discharge of each Other Priority Claim, each Holder of such Allowed Other Priority
Claim shall receive the following at the option of the applicable Debtor:
(i) payment in full in Cash in the ordinary course of business;
(ii) Reinstatement of such Allowed Other Priority Claim; or
(iii) such other treatment rendering such Allowed Other Priority Claim Unimpaired.
c. Voting: Class 2 is Unimpaired, and Holders of Class 2 Other Priority Claims are
conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code. Therefore, Holders of Class 2 Other Priority Claims are not entitled to
vote to accept or reject the Plan.
3. Class 3 — ABL Claims
a. Classification: Class 3 consists of ABL Claims.
b. Allowance: Upon entry of the Interim DIP Order, all loans under the ABL Credit Facility
and all accrued and unpaid interest thereon and outstanding fees and expenses shall be
fully-rolled into the ABL DIP Credit Facility, and upon the Effective Date, the ABL Exit
Facility.
1 Allowed Claim amounts referenced in this section are subject to adjustment to reflect any changes to the
outstanding principal amounts prior to the Effective Date.
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c. Treatment: Solely to the extent of any outstanding Allowed ABL Claims that were not
rolled-up into the ABL DIP Credit Facility, except to the extent that a Holder of an Allowed
ABL Claim agrees to less favorable treatment, in exchange for full and final satisfaction,
settlement, release, and discharge of each ABL Claim, each Holder of an Allowed ABL
Claim shall receive new loans under the ABL Exit Facility in an amount equal to the
principal amount of loans outstanding under the ABL Credit Agreement held by such
Holder as of the Effective Date.
d. Voting: Class 3 is Unimpaired, and Holders of Class 3 ABL Claims are conclusively
presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code.
Therefore, Holders of Class 3 ABL Claims are not entitled to vote to accept or reject the
Plan.
4. Class 4 — Term Claims
a. Classification: Class 4 consists of Term Claims.
b. Allowance: On the Effective Date, Term Claims shall be deemed Allowed in the aggregate
principal amount of $348.4 million, consisting of $206.2 million in the aggregate principal
amount of Term A Claims and $142.2 million aggregate principal amount of Term B
Claims, plus all interest, fees, expenses, costs, and other charges due under the Term Credit
Agreement. As the Term A Claims and Term B Claims are subject to the same Term Credit
Agreement, such Claims shall be treated in accordance with the Term Credit Agreement as
set forth below.
c. Term A Claim Treatment: Except to the extent that a Holder of an Allowed Term A Claim
agrees to less favorable treatment, in exchange for full and final satisfaction, settlement,
release, and discharge of each Term A Claim, on the Effective Date, each Holder of an
Allowed Term A Claim shall receive, in full and final satisfaction of its Term A Claims,
its Pro Rata Share (in relation to the aggregate amount of all Allowed Term A Claims) of
100% of the New Common Equity, subject to dilution by the New Warrants, the DIP Fee,
and the Management Incentive Plan.
d. Term B Claim Treatment: On the Effective Date, all Term B Claims shall be deemed
cancelled and extinguished and shall be of no further force and effect, whether surrendered
for cancellation or otherwise, and there shall be no distributions to Holders of Term B
Claims on account of any such Interests; provided, however, that each Holder of an
Allowed Term B Claim that is a Consenting Term Loan Lender or that otherwise votes in
favor of the Plan shall receive its Pro Rata Share of the New Warrants.2
2 In the event the treatment of the Allowed Term A Claims and Allowed Term B Claims described in the two
immediately preceding paragraphs is not permitted by the Bankruptcy Court, the Holders of Allowed Term Claims
shall be treated as follows under the Plan:
Except to the extent that a Holder of an Allowed Term Claim agrees to less favorable treatment, in
exchange for full and final satisfaction, settlement, release, and discharge of each Term Claim, on
the Effective Date, each Holder of an Allowed Term Claim shall receive, in full and final satisfaction
of its Term A Claims, its Pro Rata Share of 100% of the New Common Equity, subject to dilution
by the New Warrants, the DIP Fee, and the Management Incentive Plan. The Application of
Proceeds provision set forth in Section 7.04 of the Term Credit Agreement shall remain in full force
and effect and govern any distributions made pursuant to the Plan, including the distribution of New
Common Equity in accordance hereto.
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e. Voting: Class 4 is Impaired, and Holders of Class 4 Term Claims are entitled to vote to
accept or reject the Plan.
5. Class 5 — General Unsecured Claims
a. Classification: Class 5 consists of all General Unsecured Claims.
b. Treatment: Except to the extent that a Holder of an Allowed General Unsecured Claim
agrees to a less favorable treatment of its Allowed Claim, in exchange for full and final
satisfaction, settlement, release, and discharge of each Allowed General Unsecured Claim,
each Holder of an Allowed General Unsecured Claim (other than any Sponsor Claims or
other Claims arising from the ownership of any instrument evidencing an ownership
interest in a Debtor) shall have its Claim Reinstated as of the Effective Date as an obligation
of the applicable Reorganized Debtor and shall be satisfied in full in the ordinary course of
business in accordance with the terms and conditions of the particular transaction giving
rise to such Allowed General Unsecured Claim.
c. Voting: Class 5 is Unimpaired, and Holders of Class 5 General Unsecured Claims are
conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code. Therefore, Holders of Class 5 General Unsecured Claims are not
entitled to vote to accept or reject the Plan.
6. Class 6 — Intercompany Claims
a. Classification: Class 6 consists of all Intercompany Claims.
b. Treatment: On the Effective Date, Intercompany Claims shall be Reinstated,
compromised, or cancelled at the election of the Debtors or the Reorganized Debtors, as
applicable.
c. Voting: Holders of Claims in Class 6 are conclusively deemed to have accepted or rejected
the Plan pursuant to section 1126(f) or section 1126(g) of the Bankruptcy Code,
respectively. Therefore, such Holders are not entitled to vote to accept or reject the Plan.
7. Class 7 — Intercompany Interests
a. Classification: Class 7 consists of all Intercompany Interests.
b. Treatment: On the Effective Date, Intercompany Interests shall be Reinstated,
compromised, or cancelled at the election of the Debtors or the Reorganized Debtors, as
applicable.
c. Voting: Holders of Class 7 Intercompany Interests are conclusively deemed to have
accepted or rejected the Plan pursuant to section 1126(f) or section 1126(g) of the
Bankruptcy Code, respectively. Therefore, Holders of Intercompany Interests are not
entitled to vote to accept or reject the Plan.
8. Class 8 — Equity Interests in APC
a. Classification: Class 8 consists of all Equity Interests in APC.
b. Treatment: On the Effective Date, all Equity Interests in APC shall be deemed cancelled
and extinguished and shall be of no further force and effect, whether surrendered for
cancellation or otherwise, and there shall be no distributions to Holders of Equity Interests
in APC on account of any such Interests.
c. Voting: Class 8 is Impaired, and Holders of Class 8 Equity Interests are conclusively
deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
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C. Special Provision Governing Unimpaired Claims
Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’ or the Reorganized
Debtors’ rights with respect to any Unimpaired Claim, including all legal and equitable defenses to or setoffs or
recoupments against any such Unimpaired Claim.
D. Voting Classes; Presumed Acceptance by Non-Voting Classes
If a Class contains Claims or Interests eligible to vote, and no Holders of Claims or Interests eligible to vote
in such Class vote to accept or reject the Plan, the Plan shall be deemed accepted by the Holders of such Claims or
Interests in such Class.
E. Controversy Concerning Impairment
If a controversy arises as to whether any Claims or Interests or any Class thereof is Impaired, the Bankruptcy
Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.
F. Confirmation Pursuant to Section 1129(a)(10) and Section 1129(b) of the Bankruptcy Code
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance
of the Plan by an Impaired Class of Claims. The Debtors shall seek Confirmation pursuant to section 1129(b) of the
Bankruptcy Code with respect to any rejecting Class of Claims or Interests.
G. Subordinated Claims
The allowance, classification, and treatment of all Allowed Claims and Interests and the respective
distributions and treatments under the Plan shall take into account and conform to the relative priority and rights of
the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights
relating thereto, whether arising under general principles of equitable subordination, contract (including the Term
Credit Agreement), section 510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy
Code, the Debtors or the Reorganized Debtors, as applicable, reserve the right to re-classify any Allowed Claim or
Allowed Interest in accordance with any contractual, legal, or equitable subordination relating thereto.
H. Elimination of Vacant Classes
Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a
Claim or Interest temporarily Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be
deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining
acceptances or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.
I. Intercompany Interests
To the extent Reinstated under the Plan, distributions on account of Intercompany Interests are not being
received by Holders of such Intercompany Interests, but rather only for the purposes of administrative convenience.
Article IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Substantive Consolidation
The Plan is being proposed as a joint plan of reorganization of the Debtors for administrative purposes only
and constitutes a separate chapter 11 plan of reorganization for each Debtor. The Plan is not premised upon the
substantive consolidation of the Debtors with respect to the Classes of Claims or Interests set forth in the Plan;
provided that the Reorganized Debtors may consolidate Allowed Claims on a per Class basis for voting purposes.
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B. General Settlement of Claims and Interests
As discussed further in the Disclosure Statement and as otherwise provided herein, pursuant to section 1123
of the Bankruptcy Code and Bankruptcy Rule 9019 (with respect to the parties that entered into the Restructuring
Support Agreement) and in consideration for the classification, distributions, releases, and other benefits provided
under the Plan, upon the Effective Date, the provisions of the Plan shall constitute a good faith compromise and
settlement of Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that
Holders of Claims or Interests might have with respect to any Claim or Interest under the Plan. Distributions made to
Holders of Allowed Claims in any Class are intended to be final.
C. Restructuring Transactions
1. Restructuring Transactions
On the Effective Date, the Debtors, the Reorganized Debtors, or any other entities may take all actions as
may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to
effectuate the Plan (subject to the Restructuring Support Agreement), including: (a) the execution and delivery of
appropriate agreements or other documents of merger, consolidation, or reorganization containing terms that are
consistent with the terms of the Plan and that satisfy the requirements of applicable law; (b) the execution and delivery
of appropriate instruments of transfer, assignment, assumption, or delegation of any property, right, liability, duty, or
obligation on terms consistent with the terms of the Plan; (c) the filing of appropriate certificates of incorporation,
merger, or consolidation with the appropriate governmental authorities pursuant to applicable law; and (d) all other
actions that the Debtors or the Reorganized Debtors, as applicable, and the Requisite Consenting Term Loan Lenders
determine are necessary or appropriate.
The Confirmation Order shall and shall be deemed to, pursuant to both section 1123 and section 363 of the
Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any
transaction described in, approved by, contemplated by, or necessary to effectuate the Plan.
2. Exit Facilities
On the Effective Date, the Exit Facilities Documents and Alternate Term Exit Facility Documents (as
applicable) shall constitute legal, valid, binding, and authorized obligations of either the Reorganized Debtors or the
Debtors, as applicable, and following the consummation of the Restructuring Transactions, the Exit Facilities
Documents and Alternate Term Exit Facility Document (as applicable) shall constitute legal, valid, binding, and
authorized obligations of the applicable Reorganized Debtors, enforceable in accordance with their terms. The
financial accommodations to be extended pursuant to the Exit Facilities Documents and Alternate Term Exit Facility
Documents (as applicable) are being extended and shall be deemed to have been extended in good faith and for
legitimate business purposes and are reasonable and shall not be subject to avoidance, recharacterization, or
subordination (including equitable subordination) for any purposes whatsoever and shall not constitute preferential
transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any other applicable non-
bankruptcy law. On the Effective Date, all of the Liens and security interests to be granted in accordance with the
Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) (a) shall be deemed to be
granted, (b) shall be legal, binding, and enforceable Liens on and security interests in the collateral granted thereunder
in accordance with the terms of the Exit Facilities Documents and Alternate Term Exit Facility Documents (as
applicable), (c) shall be deemed automatically perfected on the Effective Date (without any further action being
required by the Debtors, the Reorganized Debtors, as applicable, the applicable agent, or any of the applicable lenders),
having the priority set forth in the Exit Facilities Documents and Alternate Term Exit Facility Documents (as
applicable) and subject only to such Liens and security interests as may be permitted under the Exit Facilities
Documents and Alternate Term Exit Facility Documents (as applicable), and (d) shall not be subject to avoidance,
recharacterization, or subordination (including equitable subordination) for any purposes whatsoever and shall not
constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or
any applicable non-bankruptcy law. The Debtors, the Reorganized Debtors, as applicable, and the Entities granted
such Liens and security interests are authorized to make all filings and recordings and to obtain all governmental
approvals and consents necessary to establish and perfect such Liens and security interests under the provisions of the
applicable state, provincial, federal, or other law (whether domestic or foreign) that would be applicable in the absence
of the Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the
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entry of the Confirmation Order, and any such filings, recordings, approvals, and consents shall not be required) and
will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable
law to give notice of such Liens and security interests to third parties.
3. New Equity
On the Effective Date, a Reorganized Debtor entity (as determined in accordance with the terms and
conditions of the Restructuring Support Agreement) shall issue or reserve for issuance all of the New Equity issued
or issuable in accordance with the terms herein, subject to dilution on the terms described herein and in the
Restructuring Support Agreement. The (a) issuance of the New Equity for distribution pursuant to the Plan, and (b) the
New Common Equity issuable upon exercise of the New Warrants issued under the Plan, are authorized without the
need for further corporate action, and all of the shares of New Common Equity issued or issuable pursuant to the Plan
shall be duly authorized, validly issued, fully paid, and non-assessable.
D. Corporate Existence
Except as otherwise provided in the Plan or the Restructuring Transactions Memorandum, each Debtor shall
continue to exist as of the Effective Date as a separate corporate Entity, limited liability company, partnership, or other
form, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form,
as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated
or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in
effect prior to the Effective Date, except to the extent such certificate of incorporation and bylaws (or other formation
documents) are amended by the Plan or otherwise, and to the extent such documents are amended, such documents
are deemed to be pursuant to the Plan and require no further action or approval.
E. Vesting of Assets in the Reorganized Debtors
Except as otherwise provided in the Plan or any agreement, instrument, or other document incorporated
herein, on the Effective Date, all property in each Estate, all Causes of Action, and any property acquired by any of
the Debtors pursuant to the Plan shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims,
charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Plan, each
Reorganized Debtor may operate its business and may use, acquire, or dispose of property and compromise or settle
any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any
restrictions of the Bankruptcy Code or Bankruptcy Rules.
F. Cancellation of Agreements, Security Interests, and Other Interests
On the Effective Date, except to the extent otherwise provided herein (including with respect to Unimpaired Claims
and all Executory Contracts and Unexpired Leases to be assumed pursuant to this Plan), all notes, instruments,
certificates, and other documents evidencing Claims or Interests, including the Secured Lender Claims, Sponsor
Claims, and the Interests in APC, shall be cancelled and the obligations of the Debtors or the Reorganized Debtors
and any non-Debtor Affiliates thereunder or in any way related thereto shall be discharged, the Agents thereunder
shall be discharged from all obligations thereunder, and all security interests and/or Liens granted under the ABL
Facility and the Term Credit Facility and/or any other Secured Claims shall be automatically released, discharged,
terminated, and of no further force and effect; provided that, notwithstanding Confirmation or the occurrence of the
Effective Date, any credit document or agreement that governs the rights of any Holder of a Claim or Interest shall
continue in effect solely for purposes of (1) allowing Holders of Allowed Claims or Interests to receive distributions
under the Plan; (2) allowing and preserving the rights of the Agents or representative of Holders of Claims or Interests,
as applicable, to make distributions on account of Allowed Claims or Interests, as provided herein; and (3) preserving
any rights of the Term Agent and any respective predecessor thereof under the Term Credit Agreement (and related
documents), including as against any money or property distributable to Term Loan Lenders, and any priority in
respect of payment of fees, expenses, or indemnification and the right to exercise any charging lien. Except as
provided in the Plan, on the Effective Date, the DIP Agents and Term Agent, and their respective agents, successors
and assigns shall be automatically and fully discharged of all their duties and obligations associated with the DIP
Facility Documents and the Term Credit Agreement (and related documents), as applicable. The commitments and
obligations (if any) of the Term Loan Lenders and/or the DIP Lenders to extend any further or further or future credit
or financial accommodations to any of the Debtors, any of their respective subsidiaries or any of their respective
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successors or assigns under the DIP Facilities Documents or the Term Credit Agreement (and related documents), as
applicable, shall fully terminate and be of no further force or effect on the Effective Date. To the extent that any
provision of the DIP Credit Agreements or DIP Order are of a type that survives repayment of the subject indebtedness,
such provisions shall remain in effect notwithstanding satisfaction of the DIP Facilities Claims.
G. Sources for Plan Distributions and Transfers of Funds Among Debtors
The Debtors shall fund distributions under the Plan with cash on hand, the proceeds of the Exit Facilities and
Alternate Term Exit Facility (as applicable) and by the issuance of the New Equity. The Reorganized Debtors will be
entitled to transfer funds between and among themselves as they determine to be necessary or appropriate to enable
the Reorganized Debtors to satisfy their obligations under the Plan. Except as set forth herein, any changes in
intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the
Debtors’ historical intercompany account settlement practices and will not violate the terms of the Plan.
From and after the Effective Date, the Reorganized Debtors, subject to any applicable limitations set forth in
any post-Effective Date agreement (including the Exit Facilities Documents, Alternate Term Exit Facility Documents
(as applicable), the New Common Equity Documents, the New Warrants Documents, and any other documents,
agreements, or instruments relating to the New Equity), shall have the right and authority without further order of the
Bankruptcy Court to raise additional capital and obtain additional financing as the boards of directors of the applicable
Reorganized Debtors deem appropriate.
H. New Equity Documents
On the Effective Date, the parent company of the Reorganized Debtors and the Holders of the New Equity
shall enter into the New Equity Documents in substantially the form included in the Plan Supplement. The New
Equity Documents shall be deemed to be valid, binding, and enforceable in accordance with their terms, and each
holder of the New Equity shall be bound thereby, in each case without the need for execution by any party thereto
other than the parent company of the Reorganized Debtors.
I. Exemption from Registration Requirements
The offering, issuance, and distribution of any Securities, including the New Equity, pursuant to the Plan,
shall be exempt from, among other things, the registration requirements of section 5 of the Securities Act pursuant to
section 1145 of the Bankruptcy Code. Except as otherwise provided in the Plan or the governing and organizational
documents, any and all New Common Equity and New Warrants issued under the Plan will be freely tradable under
the Securities Act by the recipients thereof, subject to: (1) the provisions of section 1145(b)(1) of the Bankruptcy
Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act, and compliance with any
applicable state or foreign securities laws, if any, and any rules and regulations of the SEC, if any, applicable at the
time of any future transfer of such Securities or instruments, including any such restrictions in the New Equity
Documents; (2) the restrictions, if any, on the transferability of such Securities and instruments; and (3) any other
applicable regulatory approval.
The offering, issuance and distribution of New Common Equity and the New Warrants pursuant to the Plan
shall be exempt from, among other things, the registration requirements of section 5 of the Securities Act pursuant to
section 4(a)(2) of the Securities Act and/or another exemption from registration under the Securities Act. Any and all
such Securities shall be deemed “restricted securities” that may not be offered, sold, exchanged, assigned, or otherwise
transferred unless they are registered under the Securities Act or an exemption from registration under the Securities
Act is available and in compliance with any applicable state or foreign securities laws.
J. Organizational Documents
Subject to Article V.D of this Plan, the Reorganized Debtors shall enter into such agreements and amend
their corporate governance documents to the extent necessary to implement the terms and provisions of the Plan.
Pursuant to section 1123(a)(6) of the Bankruptcy Code, the organizational documents of each of the Reorganized
Debtors will prohibit the issuance of non-voting equity securities. After the Effective Date, the Reorganized Debtors
may amend and restate their respective organizational documents, and the Reorganized Debtors may file their
respective certificates or articles of incorporation, bylaws, or such other applicable formation documents, and other
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constituent documents as permitted by the laws of the respective states, provinces, or countries of incorporation and
the organization documents of each of the Reorganized Debtors.
K. Exemption from Certain Transfer Taxes and Recording Fees
To the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any transfer from a Debtor to a
Reorganized Debtor or to any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to:
(1) the issuance, distribution, transfer, or exchange of any debt, securities, or other interest in the Debtors or the
Reorganized Debtors; (2) the creation, modification, consolidation, or recording of any mortgage, deed of trust or
other security interest, or the securing of additional indebtedness by such or other means; (3) the making, assignment,
or recording of any lease or sublease; or (4) the making, delivery, or recording of any deed or other instrument of
transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or
other instrument of transfer executed in connection with any transaction arising out of, contemplated by, or in any
way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles, or
similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code filing or
recording fee, regulatory filing or recording fee, or other similar tax or governmental assessment, and the appropriate
state or local governmental officials or agents shall forego the collection of any such tax or governmental assessment
and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of
any such tax or governmental assessment.
L. Directors and Officers of the Reorganized Debtors
1. The New Board
The New Board will initially consist of nine (9) members, including the then-serving chief executive officer
and eight (8) other members who will be designated in accordance with the terms of the Restructuring Support
Agreement and the New Equity Documents. The identity of the New Board members will be disclosed in the Plan
Supplement or at or prior to the Confirmation Hearing to the extent not known. The existing directors of each of the
Debtors’ subsidiaries shall remain in their current capacities as directors of the applicable Reorganized Debtor, subject
to the Restructuring Support Agreement, until replaced or removed in accordance with the organizational documents
of the applicable Reorganized Debtors.
2. Senior Management
On the Effective Date, the officers of the Reorganized Debtors shall be substantially the same and their
employment shall be subject to the ordinary rights and powers of the New Board to remove or replace them in
accordance with the Reorganized Debtors’ organizational documents and any applicable employment agreements that
are assumed pursuant to the Plan.
M. Directors and Officers Insurance Policies
Notwithstanding anything in the Plan to the contrary, each of the D&O Liability Insurance Policies in
existence as of the Effective Date (including a six-year “tail policy” in favor of the D&O Indemnified Persons as
defined below) shall be reinstated and, to the extent applicable, the Reorganized Debtors shall be deemed to have
assumed all of the Debtors’ D&O Liability Insurance Policies pursuant to section 365(a) of the Bankruptcy Code
effective as of the Effective Date. Entry of the Confirmation Order will constitute the Bankruptcy Court’s approval
of the Reorganized Debtors’ foregoing assumption of the unexpired D&O Liability Insurance Policies.
Notwithstanding anything to the contrary contained in the Plan, Confirmation of the Plan shall not discharge, impair,
or otherwise modify any indemnity obligations assumed by the foregoing assumption of the D&O Liability Insurance
Policies, and each such indemnity obligation will be deemed and treated as an Executory Contract that has been
assumed by the Debtors under the Plan as to which no Proof of Claim need be filed.
In addition, after the Effective Date, none of the Reorganized Debtors shall terminate or otherwise reduce the
coverage under any D&O Liability Insurance Policies (including a six-year “tail policy” purchased prior to the Petition
Date) in effect on the Petition Date, with respect to conduct occurring prior thereto, and all directors and officers of
the Debtors who served in such capacity on or at any time prior to the Effective Date shall be entitled to the full
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benefits of any such policy for the full term of such policy regardless of whether such directors and officers remain in
such positions after the Effective Date.
N. Other Insurance Policies
On the Effective Date, each of the Debtors’ insurance policies in existence as of the Effective Date shall be
Reinstated and continued in accordance with their terms and, to the extent applicable, shall be deemed assumed by
the applicable Reorganized Debtor pursuant to section 365 of the Bankruptcy Code and Article V of this Plan. Nothing
in the Plan shall affect, impair, or prejudice the rights of the insurance carriers, the insureds, or the Reorganized
Debtors under the insurance policies in any manner, and such insurance carriers, the insureds, and Reorganized
Debtors shall retain all rights and defenses under such insurance policies. The insurance policies shall apply to and
be enforceable by and against the insureds and the Reorganized Debtors in the same manner and according to the same
terms and practices applicable to the Debtors, as existed prior to the Effective Date.
O. Preservation of Rights of Action
In accordance with section 1123(b) of the Bankruptcy Code but subject to the releases set forth in Article IX
of this Plan, all Causes of Action that a Debtor may hold against any Entity shall vest in the applicable Reorganized
Debtor on the Effective Date. Thereafter, the Reorganized Debtors shall have the exclusive right, authority, and
discretion to determine, initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to
judgment any such Causes of Action, whether arising before or after the Petition Date, and to decline to do any of the
foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the
Bankruptcy Court. Subject to the releases set forth in Article IX of this Plan, no Entity may rely on the absence
of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any specific Cause of
Action as any indication that the Debtors or Reorganized Debtors, as applicable, will not pursue any and all
available Causes of Action. The Debtors or Reorganized Debtors, as applicable, expressly reserve all rights to
prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Plan,
and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion,
claim preclusion, estoppel (judicial, equitable, or otherwise) or laches, shall apply to any Cause of Action upon, after,
or as a consequence of the Confirmation or the occurrence of the Effective Date.
P. Corporate Action
Subject to the Restructuring Support Agreement, upon the Effective Date, all actions contemplated by the
Plan and the Restructuring Transactions Memorandum shall be deemed authorized, approved, and, to the extent taken
prior to the Effective Date, ratified without any requirement for further action by Holders of Claims or Interests,
directors, managers, or officers of the Debtors, the Reorganized Debtors, or any other Entity, including: (1)
assumption of Executory Contracts and Unexpired Leases; (2) selection of the directors, managers, and officers for
the Reorganized Debtors; (3) the execution of and entry into the Exit Facilities Documents, Alternate Term Exit
Facility Documents (as applicable), the New Common Equity Documents, and the New Warrants Documents; (4) the
issuance and distribution of the New Equity as provided herein; and (5) all other acts or actions contemplated or
reasonably necessary or appropriate to promptly consummate the transactions contemplated by the Plan (whether to
occur before, on, or after the Effective Date). All matters provided for in the Plan involving the company structure of
the Debtors and any company action required by the Debtors in connection therewith shall be deemed to have occurred
on and shall be in effect as of the Effective Date without any requirement of further action by the security holders,
directors, managers, authorized persons, or officers of the Debtors.
On or prior to the Effective Date, the appropriate officers, directors, managers, or authorized persons of the
Debtors (including any president, vice-president, chief executive officer, treasurer, general counsel, or chief financial
officer thereof) shall be authorized and directed to issue, execute, and deliver the agreements, documents, securities,
certificates of incorporation, certificates of formation, bylaws, operating agreements, and instruments contemplated
by the Plan (or necessary or desirable to effect the transactions contemplated by the Plan) in the name of and on behalf
of the Debtors or the Reorganized Debtors, as applicable, including (1) the Exit Facilities Documents, Alternate Term
Exit Facility Documents (as applicable), the New Common Equity Documents, and the New Warrants Documents
and (2) any and all other agreements, documents, securities, and instruments relating to the foregoing. The
authorizations and approvals contemplated by the Plan shall be effective notwithstanding any requirements under non-
bankruptcy law.
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Q. Effectuating Documents; Further Transactions
Prior to, on, and after the Effective Date, the Debtors and Reorganized Debtors and the directors, managers,
officers, authorized persons, and members of the boards of directors or managers and directors thereof, are authorized
to and may issue, execute, deliver, file, or record such contracts, securities, instruments, releases, and other agreements
or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence
the terms and provisions of the Plan, the Exit Facilities Documents, Alternate Term Exit Facility Documents (as
applicable), the New Common Equity Documents, the New Warrants Documents, and any securities issued pursuant
to the Plan in the name of and on behalf of the Reorganized Debtors, without the need for any approvals,
authorizations, actions, or consents except for those expressly required pursuant to the Plan or the Restructuring
Support Agreement.
R. Management Incentive Plan
Effective as of the Effective Date, shares will be reserved for continuing employees of the Debtors and
members of the New Board, providing for up to 10% of the New Common Equity issued and outstanding on the
Effective Date (on a fully diluted basis and fully distributed basis). The New Board will determine the amount and
form or forms of incentive interests to be granted upon the Effective Date and the terms and conditions of such awards.
S. Workers’ Compensation Programs
As of the Effective Date, except as set forth in the Plan Supplement, the Debtors and the Reorganized Debtors
shall continue to honor their obligations under (1) all applicable workers’ compensation laws in states in which the
Reorganized Debtors operate and (2) the Debtors’ written contracts, agreements, agreements of indemnity,
self-insured workers’ compensation bonds, policies, programs, and plans, in each case, for workers’ compensation
and workers’ compensation insurance. Nothing in the Plan shall limit, diminish, or otherwise alter the Debtors’ or
Reorganized Debtors’ defenses, Causes of Action, or other rights under applicable non-bankruptcy law with respect
to any such contracts, agreements, policies, programs, and plans; provided that nothing herein shall be deemed to
impose any obligations on the Debtors in addition to what is provided for under applicable state law.
Article V.
TREATMENT OF EXECUTORY CONTRACTS
AND UNEXPIRED LEASES; EMPLOYEE BENEFITS; AND INSURANCE POLICIES
A. Assumption of Executory Contracts and Unexpired Leases
On the Effective Date, except as otherwise provided in the Plan or in any contract, instrument, release,
indenture, or other agreement or document entered into in connection with the Plan, all Executory Contracts and
Unexpired Leases shall be deemed assumed without the need for any further notice to or action, order, or approval of
the Bankruptcy Court as of the Effective Date under section 365 of the Bankruptcy Code; provided that the
Restructuring Support Agreement shall be deemed assumed as of the Confirmation Date; provided, further, that, upon
the occurrence of the Effective Date, the Restructuring Support Agreement will terminate in accordance with its terms.
Entry of the Confirmation Order shall constitute a Bankruptcy Court Final Order approving the assumption
or assumption and assignment, as applicable, of such Executory Contracts or Unexpired Leases as set forth in the Plan,
pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Unless otherwise indicated, the assumption or
assumption and assignment of Executory Contracts and Unexpired Leases pursuant to the Plan are effective as of the
Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or a Bankruptcy Court
Final Order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the
applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may have been modified
in the Plan or any Final Order of the Bankruptcy Court authorizing and providing for its assumption under applicable
federal law.
To the maximum extent permitted by law, to the extent that any provision in any Executory Contract or
Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, purports to restrict or
prevent, or is breached or deemed breached by the assumption or assumption and assignment of such Executory
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Contract or Unexpired Lease (including any “change of control” provision), such provision shall be deemed modified
such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such
Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases
Any monetary defaults under each Executory Contract and Unexpired Lease to be assumed pursuant to the
Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the default amount in
Cash on the Effective Date or in the ordinary course of business, subject to the limitation described below, or on such
other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree. In the event of a
dispute regarding (1) the amount of any payments to cure such a default, (2) the ability of the Reorganized Debtors or
any assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the
Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, or (3) any other matter pertaining
to assumption, the Bankruptcy Court shall hear such dispute prior to the assumption becoming effective. The cure
payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order or
orders resolving the dispute and approving the assumption and shall not prevent or delay implementation of the Plan
or the occurrence of the Effective Date.
Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise and payment
of the applicable cure amount shall result in the full release, satisfaction, and waiver of any Claims or defaults, whether
monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest
composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease
at any time prior to the effective date of assumption.
C. Contracts and Leases Entered into After the Petition Date
Contracts and leases entered into after the Petition Date by any Debtor, including any Executory Contracts
and Unexpired Leases assumed by such Debtor, will be performed by the Debtor or Reorganized Debtor liable
thereunder in the ordinary course of its business. Accordingly, such contracts and leases (including any assumed
Executory Contracts and Unexpired Leases) will survive and remain unaffected by entry of the Confirmation Order.
D. Indemnification and Reimbursement Obligations
On and as of the Effective Date, the Indemnification Provisions will be assumed and irrevocable and will
survive the effectiveness of the Plan, and the Reorganized Debtors’ governance documents will provide for the
indemnification, defense, reimbursement, exculpation, and/or limitation of liability of and advancement of fees and
expenses to the Debtors’ and the Reorganized Debtors’ current and former directors, officers, direct or indirect
equityholders, employees, and agents (each, a “D&O Indemnified Person”) to the fullest extent permitted by law and
at least to the same extent as the certificate of incorporation, bylaws, or similar organizational documents of each of
the respective Debtors as of the Petition Date, against any claims or Causes of Action whether direct or derivative,
liquidated or unliquidated, fixed, or contingent, disputed or undisputed, matured or unmatured, known or unknown,
foreseen or unforeseen, asserted or unasserted. None of the Reorganized Debtors shall amend and/or restate its
certificate of incorporation, bylaws, or similar organizational document before or after the Effective Date to terminate
or materially adversely affect (1) any of the Reorganized Debtors’ obligations referred to in the immediately preceding
sentence or (2) the rights of such D&O Indemnified Persons referred to in the immediately preceding sentence.
Notwithstanding anything to the contrary herein, the Reorganized Debtors shall not be required to indemnify the D&O
Indemnified Persons for any claims or Causes of Action for which indemnification is barred under applicable law, the
Debtors’ organizational documents, or applicable agreements governing the Debtors’ indemnification obligations.
For the avoidance of doubt, each Debtor shall continue after the Effective Date, to the fullest extent permitted
by applicable law, to (i) indemnify and hold harmless (and release from any liability to the Debtors), the D&O
Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts
paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action, suit
or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact
that such D&O Indemnified Person is or was a director or officer of any Debtor arising out of acts or omissions
occurring on or prior to the Effective Date (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified
Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances
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where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably
detailed statements therefor; provided, however, that the D&O Indemnified Person to whom D&O Expenses are to be
advanced provides an undertaking to repay such advances if it is ultimately determined that such D&O Indemnified
Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable
Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable
Claim are fully satisfied. For the purposes of this paragraph, “D&O Expenses” will include attorneys' fees and all
other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O
Indemnifiable Claim, but will exclude losses, claims, damages, judgments and amounts paid in settlement (which
items are included in the definition of D&O Costs).
On and as of the Effective Date, any of the Debtors’ indemnification obligations with respect to any contract
or agreement that is the subject of or related to any litigation against the Debtors or Reorganized Debtors (including
any indemnification obligation under the Equity Purchase Agreement dated March 28, 2017 by and among AP Exhaust
Holdings, LLC, Harvest APC Holdings LLC and AG Grey Goose Holdings, LLC), as applicable, shall be assumed by
the Reorganized Debtors and otherwise remain unaffected by the Chapter 11 Cases; provided that the Reorganized
Debtors shall not indemnify the Debtors’ directors for any claims or causes of action for which indemnification is
barred under applicable law, the Debtors’ organizational documents, or applicable agreements governing the Debtors’
indemnification obligations.
E. Employee Compensation and Benefits
Subject to the provisions of the Plan and the Restructuring Support Agreement, all Compensation and
Benefits Programs shall be treated as Executory Contracts under the Plan and deemed assumed on the Effective Date
pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code; provided that with respect to
management, any provision relating to equity-based awards, including any termination-related provisions with respect
to equity based awards, will be replaced and superseded in its entirety by the Management Incentive Plan. The
Reorganized Debtors shall honor, in the ordinary course of business, Claims of employees employed as of the Effective
Date for accrued vacation time arising prior to the Petition Date and not otherwise paid pursuant to a Bankruptcy
Court order.
Any assumption of Compensation and Benefits Programs pursuant to the terms herein shall not be deemed
to trigger any applicable change of control, immediate vesting, termination, or similar provisions therein. No
counterparty shall have rights under a Compensation and Benefits Program assumed pursuant to the Plan other than
those applicable immediately prior to such assumption.
F. Modifications, Amendments, Supplements, Restatements, or Other Agreements
Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed shall
include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such
Executory Contract or Unexpired Lease, and Executory Contracts and Unexpired Leases related thereto, if any,
including easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other
interests, unless any of the foregoing agreements has been previously rejected or repudiated.
Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and
Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter
the prepetition nature of the Executory Contract or Unexpired Lease.
G. Reservation of Rights
Except with respect to the Restructuring Support Agreement, nothing contained in the Plan or the Plan
Supplement shall constitute an admission by the Debtors or any other party that any such contract or lease is in fact
an Executory Contract or Unexpired Lease or that any Reorganized Debtor has any liability thereunder. If there is a
dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption, the Debtors
or the Reorganized Debtors, as applicable, shall have thirty (30) calendar days following entry of a Final Order
resolving such dispute to alter their treatment of such contract or lease, including by rejecting such contract or lease
nunc pro tunc to the Confirmation Date, except as otherwise provided in such Final Order.
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H. Nonoccurrence of Effective Date
In the event that the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect
to any request to extend the deadline for assuming or rejecting Unexpired Leases pursuant to section 365(d)(4) of the
Bankruptcy Code, unless such deadline(s) have expired.
Article VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Timing and Calculation of Amounts to Be Distributed
Unless otherwise provided in the Plan, on the Effective Date, the Debtors shall distribute the full amount of
the distributions that the Plan provides for the ABL Claims, Term A Claims, and Term B Claims, and all other Holders
of Allowed Claims or Interests shall receive on the Effective Date (or, if a Claim or Interest is not an Allowed Claim
or Interest on the Effective Date, on the date that such Claim becomes an Allowed Claim or Interest) or as soon as
reasonably practicable thereafter (or, in the case of Allowed General Unsecured Claims, in accordance with the terms
and conditions of the particular transaction giving rise to such Allowed General Unsecured Claims), the full amount
of the distributions that the Plan provides for such Allowed Claims or Interests, in each applicable Class, and in the
manner provided in the Plan. If any payment or act under the Plan is required to be made or performed on a date that
is not a Business Day, then the making of such payment or the performance of such act may be completed on the next
succeeding Business Day but shall be deemed to have been completed as of the required date. If and to the extent that
there are any Disputed Claims or Interests, distributions on account of any such Disputed Claims or Interests shall be
made pursuant to the provisions set forth in Article VII of this Plan.
B. Delivery of Distributions
1. Delivery of Distributions on Account of ABL DIP Facility Claims
The ABL DIP Agent shall be deemed to be the Holder of any and all ABL DIP Facility Claims for purposes
of distributions to be made hereunder, and any distributions on account of such ABL DIP Facility Claims shall be
made to the ABL DIP Agent. As soon as practicable following compliance with the requirements set forth in Article
VI of this Plan, the ABL DIP Agent shall arrange to deliver or direct the delivery of such distributions to or on behalf
of the Holders of ABL DIP Facility Claims in accordance with the terms of the ABL DIP Facility, subject to any
modifications to such distributions in accordance with the terms of the Plan. Notwithstanding anything in the Plan to
the contrary and without limiting the exculpation and release provisions of the Plan, the ABL DIP Agent shall not
have any liability to any Entity with respect to distributions made or directed to be made by the ABL DIP Agent.
2. Delivery of Distributions on Account of Term DIP Facility Claims
Distributions on account of the Term DIP Facility Claims shall be made by the Debtors directly to the holders
of such Holders of Term DIP Facility Claims. As soon as practicable following compliance with the requirements set
forth in Article IV of this Plan, the Debtors shall deliver such distributions to the Holders of Term DIP Facility Claims.
Notwithstanding anything in the Plan to the contrary and without limiting the exculpation and release provisions of
the Plan, the Term DIP Agent shall not have any liability to any Entity with respect to distributions made or directed
to be made by the Term DIP Agent.
3. Delivery of Distributions on Account of ABL Claims
The ABL Agent shall be deemed to be the Holder of all Allowed ABL Claims for purposes of distributions
to be made hereunder, and all distributions on account of such Allowed Claims shall be made to the ABL Agent. As
soon as practicable following compliance with the requirements set forth in Article VI of this Plan, if applicable, the
ABL Agent shall arrange to deliver or direct the delivery of such distributions to or on behalf of the Holders of Allowed
ABL Claims in accordance with the terms of the ABL Credit Agreement and the Plan. Notwithstanding anything in
the Plan to the contrary and without limiting the exculpation and release provisions of the Plan, the ABL Agent shall
not have any liability to any Entity with respect to distributions made or directed to be made by the ABL Agent.
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4. Delivery of Distributions on Account of Term Claims
Distributions on account of all Allowed Term Claims shall be made by the Debtors directly to the holders of
such Allowed Term Claims. As soon as practicable following compliance with the requirements set forth in Article
IV of this Plan, the Debtors shall deliver such distributions to the Holders of Allowed Term Claims. Notwithstanding
anything in the Plan to the contrary and without limiting the exculpation and release provisions of the Plan, the Term
Agent shall not have any liability to any Entity with respect to distributions made or directed to be made by the Term
Agent.
5. Distributions by Distribution Agents
The Debtors and the Reorganized Debtors, as applicable, shall have the authority to enter into agreements
with one or more Distribution Agents to facilitate the distributions required hereunder. To the extent the Debtors and
the Reorganized Debtors, as applicable, determine to utilize a Distribution Agent to facilitate the distributions under
the Plan to Holders of Allowed Claims, any such Distribution Agent would first be required to: (a) affirm its obligation
to facilitate the prompt distribution of any documents; (b) affirm its obligation to facilitate the prompt distribution of
any recoveries or distributions required under the Plan; (c) waive any right or ability to setoff, deduct from, or assert
any lien or encumbrance against the distributions required under the Plan to be distributed by such Distribution Agent;
and (d) post a bond, obtain a surety, or provide some other form of security for the performance of its duties, and the
costs and expenses of procuring such forms of security shall be borne by the Debtors or the Reorganized Debtors, as
applicable.
The Debtors or the Reorganized Debtors, as applicable, shall pay to the Distribution Agents all reasonable
and documented fees and expenses of the Distribution Agents without the need for any approvals, authorizations,
actions, or consents. The Distribution Agents shall submit detailed invoices to the Debtors or the Reorganized
Debtors, as applicable, for all fees and expenses for which the Distribution Agent seeks reimbursement, and the
Debtors or the Reorganized Debtors, as applicable, shall pay those amounts that they, in their sole discretion, deem
reasonable, and shall object in writing to those fees and expenses, if any, that the Debtors or the Reorganized Debtors,
as applicable, deem to be unreasonable. In the event that the Debtors or the Reorganized Debtors, as applicable, object
to all or any portion of the amounts requested to be reimbursed in a Distribution Agent’s invoice, the Debtors or the
Reorganized Debtors, as applicable, and such Distribution Agent shall endeavor, in good faith, to reach mutual
agreement on the amount of the appropriate payment of such disputed fees and/or expenses. In the event that the
Debtors or the Reorganized Debtors, as applicable, and a Distribution Agent are unable to resolve any differences
regarding disputed fees or expenses, either party shall be authorized to move to have such dispute heard by the
Bankruptcy Court.
6. Fractional Distributions
Whenever any distribution of a fractional share of New Equity under the Plan would otherwise be called for,
the actual distribution will reflect a rounding of such fraction to the nearest whole share of New Equity (up or down),
with half shares of New Equity or less being rounded down. The total number of authorized shares of New Common
Equity or of the New Warrants, as applicable, shall be adjusted as necessary to account for the foregoing rounding.
7. Undeliverable Distributions
If any distribution to a Holder of an Allowed Claim made in accordance herewith is returned to the
Reorganized Debtors (or their Distribution Agent) as undeliverable, no further distributions shall be made to such
Holder unless and until the Distribution Agent is notified in writing of such Holder’s then-current address or other
necessary information for delivery, at which time such undelivered distribution shall be made to such Holder within
ninety (90) days of receipt of such Holder’s then-current address or other necessary information; provided that any
such undelivered distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the
expiration of six (6) months from the later of (a) the Effective Date and (b) the date of the initial attempted distribution.
After such date, all unclaimed property or interests in property shall revert to the Reorganized Debtors automatically
and without need for a further order by the Bankruptcy Court (notwithstanding any applicable non-bankruptcy escheat,
abandoned, or unclaimed property laws to the contrary), and the right, title, and interest of any Holder to such property
or interest in property shall be discharged and forever barred.
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C. Manner of Payment
At the option of the Distribution Agent, any Cash payment to be made under the Plan may be made by check
or wire transfer or as otherwise required or provided in applicable agreements.
D. No Postpetition or Default Interest on Claims
Unless otherwise specifically provided for in the Plan or the Confirmation Order and notwithstanding any
documents that govern the Debtors’ prepetition indebtedness to the contrary, (1) postpetition and/or default interest
shall not accrue or be paid on any Claims, and (2) no Holder of a Claim shall be entitled to (a) interest accruing on or
after the Petition Date on any such Claim or (b) interest at the contract default rate, each as applicable.
E. Compliance with Tax Requirements/Allocations
In connection with the Plan, to the extent applicable, the Debtors, Reorganized Debtors, and other applicable
withholding and reporting agents shall comply with all tax withholding and reporting requirements imposed on them
by any Governmental Unit, and all distributions pursuant hereto shall be subject to such withholding and reporting
requirements. Notwithstanding any provision in the Plan to the contrary, the Debtors, Reorganized Debtors, and other
applicable withholding and reporting agents and the Distribution Agent shall be authorized to take all actions necessary
or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the
distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding
distributions pending receipt of information necessary to facilitate such distributions, or establishing any other
mechanisms they believe are reasonable and appropriate. The Debtors, Reorganized Debtors, and other applicable
withholding agents reserve the right to allocate all distributions made under the Plan in compliance with all applicable
wage garnishments, alimony, child support and other spousal awards, liens, and encumbrances. For tax purposes,
distributions in full or partial satisfaction of Allowed Claims shall be allocated first to the principal amount of Allowed
Claims, with any excess allocated to unpaid interest that accrued on such Claims.
F. Surrender of Cancelled Instruments or Securities
On the Effective Date, each Holder of a certificate or instrument evidencing a Claim or an Equity Interest
shall be deemed to have surrendered such certificate or instrument to the Distribution Agent. Such surrendered
certificate or instrument shall be cancelled solely with respect to the Debtors, and such cancellation shall not alter the
obligations or rights of any non-Debtor third parties vis-à-vis one another with respect to such certificate or instrument,
including with respect to any indenture or agreement that governs the rights of the Holder of a Claim or Equity Interest,
which shall continue in effect for purposes of allowing Holders to receive distributions under the Plan, charging liens,
priority of payment, and indemnification rights. Notwithstanding anything to the contrary herein, this paragraph shall
not apply to certificates or instruments evidencing Claims that are Unimpaired under the Plan.
G. Claims Paid or Payable by Third Parties
1. Claims Payable by Insurance
No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to
one of the Debtors’ insurance policies until the Holder of such Allowed Claim has exhausted all remedies with respect
to such insurance policy.
2. Applicability of Insurance Policies
Except as otherwise provided in the Plan, distributions to Holders of Allowed Claims shall be in accordance
with the provisions of any applicable insurance policy. Nothing contained in the Plan shall be deemed a waiver or
construed to impact, impair, affect, determine, release, waive, modify, limit, or expand: (i) any Cause of Action that
the Debtors or any Entity may hold against any other Entity, including insurers under any policies of insurance, (ii)
the terms and conditions of any applicable insurance policies, (iii) any rights, remedies, defenses to coverage, and
other defenses of any insurer under or for any insurance policies (including the right of any insurer to disclaim
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coverage), nor otherwise alter any insurer’s existing indemnity payment obligations, or (iv) any rights of any Entity
with respect to any such insurance policies or insurers.
Article VII.
PROCEDURES FOR RESOLVING UNLIQUIDATED
AND DISPUTED CLAIMS OR EQUITY INTERESTS
A. Allowance of Claims and Interests
After the Effective Date, each of the Reorganized Debtors shall have and retain any and all rights and defenses
such Debtor had with respect to any Claim or Equity Interest immediately prior to the Effective Date. This Article
VII shall not apply to the DIP Facility Claims and the Secured Claims, which Claims shall be Allowed in full and will
not be subject to any avoidance, reductions, set off, offset, recharacterization, subordination (whether equitable,
contractual, or otherwise), counterclaims, cross-claims, defenses, disallowance, impairment, objection, or any other
challenges under any applicable law or regulation by any person or Entity. All settled Claims approved prior to the
Effective Date pursuant to a Final Order of the Bankruptcy Court pursuant to Bankruptcy Rule 9019 or otherwise shall
be binding on all parties.
B. Proofs of Claim
Holders of Claims and Interests need not file a Proof of Claim with the Bankruptcy Court and shall be subject
to the Bankruptcy Court process only to the extent provided in the Plan. On and after the Effective Date, except as
otherwise provided in the Plan, all Allowed Claims shall be satisfied in the ordinary course of business of the
Reorganized Debtors. The Debtors and the Reorganized Debtors, as applicable, shall have the exclusive authority to
file, settle, compromise, withdraw, or litigate to judgment any objections to Claims as permitted under the Plan. If
the Debtors or Reorganized Debtors dispute any Claim or Interest, such dispute shall be determined, resolved, or
adjudicated, as the case may be, in the manner as if the Chapter 11 Cases had not been commenced and shall survive
the Effective Date as if the Chapter 11 Cases had not been commenced; provided that the Debtors or Reorganized
Debtors may elect, at their sole option, to object to any Claim (other than Claims expressly Allowed by the Plan) and
to have the validity or amount of any Claim adjudicated by the Bankruptcy Court; provided, further, that Holders of
Claims and Administrative Claims may elect to resolve the validity or amount of any Claim in the Bankruptcy Court.
If a Holder makes such an election, the Bankruptcy Court shall apply the law that would have governed the dispute if
the Chapter 11 Cases had not been filed.
C. Claims Administration Responsibilities
Except as otherwise specifically provided in the Plan, after the Effective Date, the Reorganized Debtors shall
have the authority to (1) file, withdraw, or litigate to judgment, any objections to Claims or Interests and (2) settle or
compromise any Disputed Claim or Interest without any further notice to or action, order, or approval by the
Bankruptcy Court. For the avoidance of doubt, except as otherwise provided in the Plan, from and after the Effective
Date, each Reorganized Debtor shall have and retain any and all rights and defenses such Debtor had immediately
prior to the Effective Date with respect to any Disputed Claim or Interest, including the Causes of Action retained
pursuant to the Plan.
D. Estimation of Claims and Interests
Before or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may (but are not
required to) at any time request that the Bankruptcy Court estimate any Disputed Claim or Interest that is contingent
or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party
previously has objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection,
and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation
of any objection to any Claim or Interest or during the appeal relating to such objection. Notwithstanding any
provision otherwise in the Plan, a Claim that has been expunged but that either is subject to appeal or has not been the
subject of a Final Order shall be deemed to be estimated at zero ($0.00) dollars unless otherwise ordered by the
Bankruptcy Court. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest,
that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Plan
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(including for purposes of distributions), as determined by the Bankruptcy Court, and the relevant Reorganized Debtor
may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.
E. Adjustment to Claims Without Objection
Any duplicate Claim or Interest or any Claim or Interest that has been paid, satisfied, amended, or superseded
may be adjusted or expunged by the Reorganized Debtors without the Reorganized Debtors having to file an
application, motion, complaint, objection, or any other legal proceeding seeking to object to such Claim or Interest,
and without any further notice to or action, order, or approval of the Bankruptcy Court, provided that the Debtors or
Reorganized Debtors shall promptly file a notice of the same, and serve such notice on the affected Holder of such
Claim or Interest.
F. Disallowance of Certain Claims
Any Claims held by Entities from which property is recoverable under section 542, 543, 550, or 553 of the
Bankruptcy Code or that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549,
or 724(a) of the Bankruptcy Code shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code
unless expressly Allowed pursuant to the Plan, and Holders of such Claims may not receive any distributions on
account of such Claims and Interests until such time as such Causes of Action against that Entity have been settled or
a Final Order of the Bankruptcy Court with respect thereto has been entered and all sums due, if any, to the Debtors
by that Entity have been turned over or paid to the Reorganized Debtors.
G. No Distributions Pending Allowance
Notwithstanding any other provision hereof, if any portion of a Claim or Interest is a Disputed Claim or
Interest, as applicable, no payment or distribution provided hereunder shall be made on account of such Claim or
Interest unless and until such Disputed Claim or Interest becomes an Allowed Claim or Interest.
H. Distributions After Allowance
To the extent that a Disputed Claim or Interest ultimately becomes an Allowed Claim or Interest, distributions
(if any) shall be made to the Holder of such Allowed Claim or Interest in accordance with the provisions of the Plan.
As soon as reasonably practicable after the date that the order or judgment of the Bankruptcy Court allowing any
Disputed Claim or Interest becomes a Final Order, the Distribution Agent shall provide to the Holder of such Claim
or Interest the distribution (if any) to which such Holder is entitled under the Plan as of the Effective Date, without
any interest to be paid on account of such Claim or Interest.
I. No Interest
Interest shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective Date
to the date a final distribution is made on account of such Disputed Claim if and when such Disputed Claim becomes
an Allowed Claim.
Article VIII.
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
A. Conditions Precedent to the Effective Date
The following are conditions precedent to the Effective Date that must be satisfied or waived in accordance
with the terms of the Restructuring Support Agreement and the Plan:
1. The Bankruptcy Court shall have approved the Disclosure Statement as containing adequate
information with respect to the Plan within the meaning of section 1125 of the Bankruptcy Code.
2. The Confirmation Order shall have been entered and shall be in full force and effect and such
Confirmation Order shall be a Final Order.
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3. The Debtors shall have obtained any authorization, consents, regulatory approvals, rulings, or
documents that are necessary to implement and effectuate the Plan and each of the other transactions contemplated by
the Restructuring Transactions.
4. All actions, documents, certificates, and agreements necessary to implement this Plan shall have
been effected or executed and delivered to the required parties and, to the extent required, filed with the applicable
Governmental Units in accordance with applicable laws.
5. All conditions precedent to the effectiveness of the Exit Facilities Documents and Alternate Term
Exit Facility Documents (as applicable) shall have been satisfied contemporaneously or duly waived.
6. All conditions precedent to the issuance of the New Common Equity, including the New Warrants,
shall have been satisfied or duly waived.
7. All documents and agreements necessary to implement the DOJ Settlement, which shall be in form
and substance reasonably acceptable to the Requisite Consenting Term Loan Lenders, shall have been executed and
tendered for delivery.
8. The DOJ Settlement shall be approved by the Bankruptcy Court and any required non-Bankruptcy
Court and subsequently finalized by the Debtors and the DOJ.
9. All documents and agreements necessary to implement the Plan shall have been executed and
tendered for delivery. All conditions precedent to the effectiveness of such documents and agreements shall have
been satisfied or waived pursuant to the terms thereof (or will be satisfied and waived substantially concurrently with
the occurrence of the Effective Date).
10. The final version of the Plan Supplement and all of the schedules, documents, and exhibits contained
therein and all other schedules, documents, supplements, and exhibits to the Plan shall be consistent with the
Restructuring Support Agreement and Article I.E of this Plan.
11. All of the other Definitive Documents not expressly set forth in Article VIII of this Plan shall have
been executed in accordance with section 3 of the Restructuring Support Agreement and Article I.E of this Plan.
12. The Restructuring Support Agreement shall not have been terminated in accordance with its terms
and shall be in full force and effect.
13. The Professional Fee Escrow Account shall have been established and funded.
14. All Accrued Professional Compensation Claims and expenses of Retained Professionals required to
be approved by the Bankruptcy Court shall have been paid in full or amounts sufficient to pay such fees and expenses
after the Effective Date shall have been placed in the Professional Fee Escrow Account pending approval by the
Bankruptcy Court.
15. All invoiced reasonable and documented fees and out-of-pocket expenses payable pursuant to the
Restructuring Support Agreement, Article II.A.2.d of this Plan, or an order of the Bankruptcy Court shall have been
paid in full.
16. The Debtors and Reorganized Debtors, as applicable, shall have implemented the restructuring in a
manner consistent in all respects with the Plan and the Restructuring Support Agreement.
B. Effect of Non-Occurrence of Conditions to the Effective Date
If the Effective Date does not occur on or before the termination of the Restructuring Support Agreement,
then (1) the Plan shall be null and void in all respects, (2) any settlement or compromise embodied in the Plan,
assumption of Executory Contracts or Unexpired Leases effected under the Plan, and document or agreement executed
pursuant to the Plan shall be deemed null and void, and (3) nothing contained in the Plan, the Confirmation Order, or
the Disclosure Statement shall (a) constitute a waiver or release of any Claims, Interests, or Causes of Action, (b)
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prejudice in any manner the rights of the Debtors or any other Entity, or (c) constitute an admission, acknowledgement,
offer, or undertaking of any sort by the Debtors or any other Entity.
C. Waiver of Conditions
The Debtors or the Reorganized Debtors, as applicable, subject to the Restructuring Support Agreement, may
waive any of the conditions to the Effective Date set forth above at any time, without any notice to parties in interest
and without any further notice to or action, order, or approval of the Bankruptcy Court and without any formal action
other than a proceeding to confirm the Plan.
Article IX.
RELEASE, INJUNCTION, AND RELATED PROVISIONS
A. Discharge of Claims and Termination of Interests; Compromise and Settlement of Claims, Interests, and
Controversies
Pursuant to and to the fullest extent permitted by section 1141(d) of the Bankruptcy Code and except as
otherwise specifically provided in the Plan, the distributions, rights, and treatments that are provided in the Plan shall
be in full and final satisfaction, settlement, release, and discharge, effective as of the Effective Date, of all Interests
and Claims of any nature whatsoever, including any interest accrued on Claims from and after the Petition Date,
whether known or unknown, against, liabilities of, Liens on, obligations of, rights against the Debtors, the Reorganized
Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained
pursuant to the Plan on account of such Claims or Interests, including demands, liabilities, and Causes of Action that
arose before the Effective Date, any contingent or non-contingent liability on account of representations or warranties
issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the
Bankruptcy Code, in each case whether or not: (1) a Proof of Claim or Interest is filed or deemed filed pursuant to
section 501 of the Bankruptcy Code; (2) a Claim or Interest is Allowed; or (3) the Holder of such Claim or Interest
has accepted the Plan. Except as otherwise provided herein, any default by the Debtors or their Affiliates with respect
to any Claim or Interest that existed immediately prior to or on account of the filing of the Chapter 11 Cases shall be
deemed cured on the Effective Date. The Confirmation Order shall be a judicial determination of the discharge of all
Claims and Interests subject to the Effective Date occurring, except as otherwise expressly provided in the Plan. For
the avoidance of doubt, nothing in this Article IX.A shall affect the rights of Holders of Claims and Interests to seek
to enforce the Plan, including the distributions to which Holders of Allowed Claims and Interests are entitled under
the Plan.
Pursuant to Bankruptcy Rule 9019 (with respect to the parties that entered into the Restructuring Support
Agreement) and in consideration for the distributions and other benefits provided pursuant to the Plan, the provisions
of the Plan shall constitute a good faith compromise of all Claims, Interests, and controversies relating to the
contractual, legal, and subordination rights that a Holder of a Claim or Interest may have with respect to any Allowed
Claim or Interest or any distribution to be made on account of such Allowed Claim or Interest. The entry of the
Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such
Claims, Interests, and controversies as well as a finding by the Bankruptcy Court that such compromise or settlement
is in the best interests of the Debtors, their Estates, and Holders of Claims and Interests and is fair, equitable, and
reasonable. In accordance with the provisions of the Plan, pursuant to Bankruptcy Rule 9019 (with respect to the
parties that entered into the Restructuring Support Agreement), without any further notice to or action, order, or
approval of the Bankruptcy Court, after the Effective Date, the Reorganized Debtors may compromise and settle
Claims against the Debtors and their Estates and Causes of Action against other Entities.
B. Releases by the Debtors
NOTWITHSTANDING ANYTHING CONTAINED IN THE PLAN TO THE CONTRARY,
PURSUANT TO SECTION 1123(B) OF THE BANKRUPTCY CODE, FOR GOOD AND VALUABLE
CONSIDERATION, ON AND AFTER THE EFFECTIVE DATE, EACH RELEASED PARTY IS DEEMED
RELEASED AND DISCHARGED BY THE DEBTORS, THE REORGANIZED DEBTORS, AND THEIR
ESTATES FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION, WHETHER KNOWN OR
UNKNOWN, INCLUDING ANY DERIVATIVE CLAIMS, ASSERTED ON BEHALF OF THE DEBTORS,
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THAT THE DEBTORS, THE REORGANIZED DEBTORS, OR THEIR ESTATES WOULD HAVE BEEN
LEGALLY ENTITLED TO ASSERT IN THEIR OWN RIGHT (WHETHER INDIVIDUALLY OR
COLLECTIVELY) OR ON BEHALF OF THE HOLDER OF ANY CLAIM AGAINST, OR INTEREST IN,
A DEBTOR OR NON-DEBTOR AFFILIATE, BASED ON OR RELATING TO, OR IN ANY MANNER
ARISING FROM, IN WHOLE OR IN PART, THE DEBTORS (INCLUDING THE MANAGEMENT,
OWNERSHIP, OR OPERATION THEREOF, OR OTHERWISE), ANY SECURITIES ISSUED BY THE
DEBTORS AND THE OWNERSHIP THEREOF, THE DEBTORS’ IN- OR OUT-OF-COURT
RESTRUCTURING EFFORTS, ANY AVOIDANCE ACTIONS (BUT EXCLUDING AVOIDANCE
ACTIONS BROUGHT AS COUNTERCLAIMS OR DEFENSES TO CLAIMS ASSERTED AGAINST THE
DEBTORS BY PARTIES OTHER THAN THE RELEASING PARTIES), INTERCOMPANY
TRANSACTIONS, THE CHAPTER 11 CASES, THE FORMULATION, PREPARATION,
DISSEMINATION, NEGOTIATION, OR FILING OF THE RESTRUCTURING SUPPORT AGREEMENT,
THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE DIP FACILITIES DOCUMENTS, THE
EXIT FACILITIES, THE EXIT FACILITIES DOCUMENTS, THE ALTERNATE TERM EXIT FACILITY
AND THE ALTERNATE TERM EXIT FACILITY DOCUMENTS (AS APPLICABLE), THE PLAN, THE
PLAN SUPPLEMENT, OR ANY RESTRUCTURING TRANSACTION, CONTRACT, INSTRUMENT,
RELEASE, OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN
CONNECTION WITH THE RESTRUCTURING SUPPORT AGREEMENT, THE DISCLOSURE
STATEMENT, THE DIP FACILITIES, THE EXIT FACILITIES, THE ALTERNATE TERM EXIT
FACILITY (AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, THE CHAPTER 11 CASES, THE
FILING OF THE CHAPTER 11 CASES, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF THE
DIP FACILITIES, THE PURSUIT OF THE EXIT FACILITIES AND THE ALTERNATE TERM EXIT
FACILITY (AS APPLICABLE), THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND
IMPLEMENTATION OF THE PLAN, INCLUDING THE ISSUANCE OR DISTRIBUTION OF
SECURITIES PURSUANT TO THE PLAN, OR THE DISTRIBUTION OF PROPERTY UNDER THE PLAN
OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED ACT OR OMISSION,
TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR
BEFORE THE EFFECTIVE DATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE
FOREGOING, THE RELEASES SET FORTH ABOVE DO NOT RELEASE (A) ANY POST-EFFECTIVE
DATE OBLIGATIONS OF ANY PARTY OR ENTITY UNDER THE PLAN, ANY RESTRUCTURING
TRANSACTION, OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT (INCLUDING THOSE SET
FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN OR (B) ANY
INDIVIDUAL OR EXCULPATED PARTY (WHETHER OR NOT AN INDIVIDUAL) FROM ANY CLAIM
OR CAUSES OF ACTION RELATED TO AN ACT OR OMISSION THAT IS DETERMINED IN A FINAL
ORDER BY A COURT OF COMPETENT JURISDICTION TO HAVE CONSTITUTED FELONY
CRIMINAL CONDUCT, ACTUAL INTENTIONAL FRAUD, WILLFUL MISCONDUCT, OR GROSS
NEGLIGENCE OF SUCH RELEASED PARTY OR EXCULPATED PARTY.
ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY
COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019 (WITH RESPECT TO THE PARTIES
THAT ENTERED INTO THE RESTRUCTURING SUPPORT AGREEMENT), OF THE DEBTOR
RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND
DEFINITIONS CONTAINED IN THE PLAN, AND FURTHER, SHALL CONSTITUTE THE
BANKRUPTCY COURT’S FINDING THAT THE DEBTOR RELEASE IS: (A) IN EXCHANGE FOR THE
GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASED PARTIES, INCLUDING,
WITHOUT LIMITATION, THE RELEASED PARTIES’ CONTRIBUTIONS TO FACILITATING THE
RESTRUCTURING AND IMPLEMENTING THE PLAN; (B) A GOOD FAITH SETTLEMENT AND
COMPROMISE OF THE CLAIMS RELEASED BY THE DEBTOR RELEASE; (C) IN THE BEST
INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS AND INTERESTS; (D) FAIR,
EQUITABLE, AND REASONABLE; (E) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY
FOR HEARING; AND (F) A BAR TO ANY OF THE DEBTORS, THE REORGANIZED DEBTORS, OR
THE DEBTORS’ ESTATES ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT
TO THE DEBTOR RELEASE.
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C. Releases by the Releasing Parties
NOTWITHSTANDING ANYTHING CONTAINED IN THE PLAN TO THE CONTRARY, AS OF THE
EFFECTIVE DATE, EACH RELEASING PARTY IS DEEMED TO HAVE RELEASED AND
DISCHARGED EACH DEBTOR, REORGANIZED DEBTOR, AND RELEASED PARTY FROM ANY AND
ALL CLAIMS AND CAUSES OF ACTION, WHETHER KNOWN OR UNKNOWN, INCLUDING ANY
DERIVATIVE CLAIMS, ASSERTED ON BEHALF OF THE DEBTORS, THAT SUCH ENTITY WOULD
HAVE BEEN LEGALLY ENTITLED TO ASSERT (WHETHER INDIVIDUALLY OR COLLECTIVELY),
BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE
DEBTORS (INCLUDING THE MANAGEMENT, OWNERSHIP OR OPERATION THEREOF, OR
OTHERWISE), ANY SECURITIES ISSUED BY THE DEBTORS AND THE OWNERSHIP THEREOF, THE
DEBTORS’ IN- OR OUT-OF-COURT RESTRUCTURING EFFORTS, ANY AVOIDANCE ACTIONS,
INTERCOMPANY TRANSACTIONS, THE CHAPTER 11 CASES, THE FORMULATION,
PREPARATION, DISSEMINATION, NEGOTIATION, OR FILING OF THE RESTRUCTURING
SUPPORT AGREEMENT, THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE DIP
FACILITIES DOCUMENTS, THE EXIT FACILITIES, THE EXIT FACILITIES DOCUMENTS, THE
ALTERNATE TERM EXIT FACILITY AND THE ALTERNATE TERM EXIT FACILITY DOCUMENTS
(AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, OR ANY RESTRUCTURING
TRANSACTION, CONTRACT, INSTRUMENT, RELEASE, OR OTHER AGREEMENT OR DOCUMENT
CREATED OR ENTERED INTO IN CONNECTION WITH THE RESTRUCTURING SUPPORT
AGREEMENT, THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE EXIT FACILITIES, THE
ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, THE
CHAPTER 11 CASES, THE FILING OF THE CHAPTER 11 CASES, THE PURSUIT OF CONFIRMATION,
THE PURSUIT OF THE DIP FACILITIES, THE PURSUIT OF THE EXIT FACILITIES AND THE
ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PURSUIT OF CONSUMMATION, THE
ADMINISTRATION AND IMPLEMENTATION OF THE PLAN, INCLUDING THE ISSUANCE OR
DISTRIBUTION OF SECURITIES PURSUANT TO THE PLAN, OR THE DISTRIBUTION OF PROPERTY
UNDER THE PLAN OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED
ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING
PLACE ON OR BEFORE THE EFFECTIVE DATE. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE FOREGOING, THE RELEASES SET FORTH ABOVE DO NOT RELEASE (A) ANY
POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY OR ENTITY UNDER THE PLAN, ANY
RESTRUCTURING TRANSACTION, OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT
(INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE
PLAN OR (B) ANY INDIVIDUAL OR EXCULPATED PARTY (WHETHER OR NOT AN INDIVIDUAL)
FROM ANY CLAIM OR CAUSES OF ACTION RELATED TO AN ACT OR OMISSION THAT IS
DETERMINED IN A FINAL ORDER BY A COURT OF COMPETENT JURISDICTION TO HAVE
CONSTITUTED FELONY CRIMINAL CONDUCT, ACTUAL INTENTIONAL FRAUD, WILLFUL
MISCONDUCT, OR GROSS NEGLIGENCE OF SUCH RELEASED PARTY OR EXCULPATED PARTY.
ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY
COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019 (WITH RESPECT TO THE PARTIES
THAT ENTERED INTO THE RESTRUCTURING SUPPORT AGREEMENT), OF THE THIRD-PARTY
RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND
DEFINITIONS CONTAINED HEREIN, AND, FURTHER, SHALL CONSTITUTE THE BANKRUPTCY
COURT’S FINDING THAT THE THIRD-PARTY RELEASE IS: (A) CONSENSUAL; (B) ESSENTIAL TO
THE CONFIRMATION OF THE PLAN; (C) GIVEN IN EXCHANGE FOR THE GOOD AND VALUABLE
CONSIDERATION PROVIDED BY THE RELEASED PARTIES; (D) A GOOD FAITH SETTLEMENT
AND COMPROMISE OF THE CLAIMS RELEASED BY THE THIRD-PARTY RELEASE; (E) IN THE
BEST INTERESTS OF THE DEBTORS AND THEIR ESTATES; (F) FAIR, EQUITABLE, AND
REASONABLE; (G) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING;
AND (H) A BAR TO ANY OF THE RELEASING PARTIES ASSERTING ANY CLAIM OR CAUSE OF
ACTION RELEASED PURSUANT TO THE THIRD-PARTY RELEASE.
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D. Exculpation
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE PLAN, NO EXCULPATED
PARTY SHALL HAVE OR INCUR LIABILITY FOR AND EACH EXCULPATED PARTY IS RELEASED
AND EXCULPATED FROM ANY CAUSE OF ACTION FOR ANY CLAIM RELATED TO ANY ACT OR
OMISSION IN CONNECTION WITH, RELATING TO, OR ARISING OUT OF, THE CHAPTER 11 CASES,
THE FORMULATION, PREPARATION, DISSEMINATION, NEGOTIATION, OR FILING OF THE
RESTRUCTURING SUPPORT AGREEMENT AND RELATED PREPETITION TRANSACTIONS, THE
DIP FACILITIES, THE DIP FACILITIES DOCUMENTS,, THE EXIT FACILITIES, THE EXIT
FACILITIES DOCUMENTS, THE ALTERNATE TERM EXIT FACILITY AND THE ALTERNATE TERM
EXIT FACILITY DOCUMENTS (AS APPLICABLE), THE DISCLOSURE STATEMENT, THE PLAN, THE
PLAN SUPPLEMENT, OR ANY RESTRUCTURING TRANSACTION, CONTRACT, INSTRUMENT,
RELEASE, OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN
CONNECTION WITH THE RESTRUCTURING SUPPORT AGREEMENT, THE DIP FACILITIES, THE
EXIT FACILITIES, THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE DISCLOSURE
STATEMENT, THE PLAN, THE PLAN SUPPLEMENT, THE CHAPTER 11 CASES, THE FILING OF THE
CHAPTER 11 CASES, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF THE DIP FACILITIES,
THE PURSUIT OF THE EXIT FACILITIES AND THE ALTERNATE TERM EXIT FACILITY (AS
APPLICABLE), THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND
IMPLEMENTATION OF THE PLAN, INCLUDING THE ISSUANCE OR DISTRIBUTION OF
SECURITIES PURSUANT TO THE PLAN, OR THE DISTRIBUTION OF PROPERTY UNDER THE PLAN
OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED ACT OR OMISSION,
TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR
BEFORE THE EFFECTIVE DATE, EXCEPT FOR CLAIMS RELATED TO ANY ACT OR OMISSION
THAT IS DETERMINED IN A FINAL ORDER BY A COURT OF COMPETENT JURISDICTION TO
HAVE CONSTITUTED FELONY CRIMINAL CONDUCT, ACTUAL INTENTIONAL FRAUD, WILLFUL
MISCONDUCT, OR GROSS NEGLIGENCE OF SUCH PERSON, BUT IN ALL RESPECTS SUCH
ENTITIES SHALL BE ENTITLED TO REASONABLY RELY UPON THE ADVICE OF COUNSEL WITH
RESPECT TO THEIR DUTIES AND RESPONSIBILITIES PURSUANT TO THE PLAN.
THE EXCULPATED PARTIES HAVE, AND UPON CONFIRMATION OF THE PLAN SHALL BE
DEEMED TO HAVE, PARTICIPATED IN GOOD FAITH AND IN COMPLIANCE WITH THE
APPLICABLE LAWS WITH REGARD TO THE SOLICITATION OF VOTES AND DISTRIBUTION OF
CONSIDERATION PURSUANT TO THE PLAN AND, THEREFORE, ARE NOT, AND ON ACCOUNT OF
SUCH DISTRIBUTIONS SHALL NOT BE, LIABLE AT ANY TIME FOR THE VIOLATION OF ANY
APPLICABLE LAW, RULE, OR REGULATION GOVERNING THE SOLICITATION OF
ACCEPTANCES OR REJECTIONS OF THE PLAN OR SUCH DISTRIBUTIONS MADE PURSUANT TO
THE PLAN.
E. Injunction
EXCEPT AS OTHERWISE PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER OR
FOR OBLIGATIONS ISSUED OR REQUIRED TO BE PAID PURSUANT TO THE PLAN OR THE
CONFIRMATION ORDER, ALL ENTITIES WHO HAVE HELD, HOLD, OR MAY HOLD CLAIMS,
INTERESTS, CAUSES OF ACTION, OR LIABILITIES THAT: (A) ARE SUBJECT TO COMPROMISE
AND SETTLEMENT PURSUANT TO THE TERMS OF THE PLAN; (B) HAVE BEEN RELEASED
PURSUANT TO ARTICLE IX.B OF THIS PLAN; (C) HAVE BEEN RELEASED PURSUANT TO ARTICLE
IX.C OF THIS PLAN, (D) ARE SUBJECT TO EXCULPATION PURSUANT TO ARTICLE IX.D OF THIS
PLAN (BUT ONLY TO THE EXTENT OF THE EXCULPATION PROVIDED IN ARTICLE IX.D OF THIS
PLAN), OR (E) ARE OTHERWISE DISCHARGED, SATISFIED, STAYED, RELEASED, OR
TERMINATED PURSUANT TO THE TERMS OF THE PLAN, ARE PERMANENTLY ENJOINED AND
PRECLUDED, FROM AND AFTER THE EFFECTIVE DATE, FROM COMMENCING OR CONTINUING
IN ANY MANNER, ANY ACTION OR OTHER PROCEEDING, INCLUDING ON ACCOUNT OF ANY
CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES THAT HAVE BEEN COMPROMISED
OR SETTLED AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO
RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATE OF ANY ENTITY, DIRECTLY OR
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INDIRECTLY, SO RELEASED OR EXCULPATED) ON ACCOUNT OF, OR IN CONNECTION WITH OR
WITH RESPECT TO, ANY DISCHARGED, RELEASED, SETTLED, COMPROMISED, OR
EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES.
F. Setoffs and Recoupment
Except as otherwise provided herein, each Reorganized Debtor pursuant to the Bankruptcy Code (including
section 553 of the Bankruptcy Code), applicable non-bankruptcy law, or as may be agreed to by the Holder of an
Allowed Claim may setoff or recoup against any Allowed Claim and the distributions to be made pursuant to the Plan
on account of such Allowed Claim, any Claims, rights, and Causes of Action of any nature that the applicable Debtor
or Reorganized Debtor may hold against the Holder of such Allowed Claim, to the extent such Claims, rights, or
Causes of Action have not been otherwise compromised or settled on or prior to the Effective Date (whether pursuant
to the Plan, a Final Order or otherwise); provided that neither the failure to effect such a setoff or recoupment nor the
allowance of any Claim pursuant to the Plan shall constitute a waiver or release by such Reorganized Debtor of any
such Claims, rights, and Causes of Action.
G. Release of Liens
Except as otherwise provided herein or in any contract, instrument, release, or other agreement or document
created pursuant to the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant
to the Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates
shall be fully released and discharged, and all of the right, title, and interest of any Holder of such mortgages, deeds
of trust, Liens, pledges, or other security interests shall revert to the applicable Reorganized Debtor and its successors
and assigns.
To the extent that any Holder of a Secured Claim has had such Claim satisfied or discharged in full pursuant
to the Plan or any agent for such Holder has filed or recorded publicly any Liens and/or security interests to secure
such Holder’s Secured Claim, as soon as practicable on or after the Effective Date, such Holder (or the agent for such
Holder) shall take any and all steps requested by the Debtors, the Reorganized Debtors, or any administrative agent
under the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) that are necessary or
desirable to record or effectuate the cancellation and/or extinguishment of such Liens and/or security interests,
including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make
any such filings or recordings on such Holder’s behalf.
Article X.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the
Bankruptcy Court shall retain jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases and the
Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or
unsecured status, or amount of any Claim or Interest, including the resolution of any request for payment of any
Administrative Claim and the resolution of any and all objections to the secured or unsecured status, priority, amount,
or allowance of Claims or Interests;
2. Decide and resolve all matters related to the granting and denying, in whole or in part, any
applications for allowance of compensation or reimbursement of expenses to Retained Professionals authorized
pursuant to the Bankruptcy Code or the Plan;
3. Resolve any matters related to: (a) the assumption or assumption and assignment of any Executory
Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor may be liable and to hear,
determine, and, if necessary, liquidate, any Cure or Cure Claims arising therefrom, including Cure or Cure Claims
pursuant to section 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract
or Unexpired Lease that is assumed; and (c) any dispute regarding whether a contract or lease is or was executory or
expired;
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4. Ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the provisions
of the Plan;
5. Adjudicate, decide or resolve any motions, adversary proceedings, contested, or litigated matters,
and any other matters, and grant or deny any applications involving a Debtor that may be pending on the Effective
Date;
6. Adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code;
7. Resolve any cases, controversies, suits, or disputes that may arise in connection with General
Unsecured Claims, including establishment of a bar date, related notice, claim objections, allowance, disallowance,
estimation and distribution;
8. Enter and implement such orders as may be necessary or appropriate to execute, implement, or
consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or
documents created in connection with the Plan or the Disclosure Statement;
9. Enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of
the Bankruptcy Code;
10. Resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection
with the interpretation or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;
11. Issue injunctions, enter and implement other orders or take such other actions as may be necessary
or appropriate to restrain interference by any Entity with enforcement of the Plan;
12. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases,
injunctions, and other provisions contained in the Plan and enter such orders as may be necessary or appropriate to
implement such releases, injunctions, and other provisions;
13. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment
or return of distributions and the recovery of additional amounts owed by any Holder of a Claim or Interest for amounts
not timely repaid;
14. Enter and implement such orders as are necessary or appropriate if the Confirmation Order is for
any reason modified, stayed, reversed, revoked, or vacated;
15. Determine any other matters that may arise in connection with or relate to the Plan, the Disclosure
Statement, or the Confirmation Order;
16. Enter an order or final decree concluding or closing the Chapter 11 Cases;
17. Adjudicate any and all disputes arising from or relating to distributions under the Plan;
18. Consider any modifications of the Plan, to cure any defect or omission, or to reconcile any
inconsistency in any Bankruptcy Court order, including the Confirmation Order;
19. Determine requests for the payment of Claims and Interests entitled to priority pursuant to section
507 of the Bankruptcy Code;
20. Hear and determine disputes arising in connection with the interpretation, implementation, or
enforcement of the Plan or the Confirmation Order;
21. Hear and determine matters concerning state, local, and federal taxes in accordance with sections
346, 505, and 1146 of the Bankruptcy Code;
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22. Hear and determine all disputes involving the existence, nature, or scope of the Debtors’ discharge,
including any dispute relating to any liability arising out of the termination of employment or the termination of any
employee or retiree benefit program, regardless of whether such termination occurred prior to or after the Effective
Date;
23. Enforce all orders previously entered by the Bankruptcy Court; and
24. Hear any other matter not inconsistent with the Bankruptcy Code.
Article XI.
MODIFICATION, REVOCATION, OR WITHDRAWAL OF PLAN
A. Modification of Plan
Subject to the limitations contained in the Plan, the Debtors reserve the right, in accordance with the
Bankruptcy Code, the Bankruptcy Rules, and the Restructuring Support Agreement (1) to amend or modify the Plan
prior to the entry of the Confirmation Order, including amendments or modifications to satisfy section 1129(b) of the
Bankruptcy Code, and (2) after the entry of the Confirmation Order, the Debtors or the Reorganized Debtors, as the
case may be, may, upon order of the Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b)
of the Bankruptcy Code and the Restructuring Support Agreement, or remedy any defect or omission or reconcile any
inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the Plan. All
modifications and amendments to the Plan made prior to confirmation shall be in compliance with section 1127(a) of
the Bankruptcy Code and Bankruptcy Rule 3019(a), and all modifications and amendments made after confirmation
shall be in compliance with section 1127(b) of the Bankruptcy Code and Bankruptcy Rule 3019(b).
B. Effect of Confirmation on Modifications
Entry of the Confirmation Order shall mean that all modifications or amendments to the Plan since the
solicitation thereof are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional
disclosure or re-solicitation under Bankruptcy Rule 3019.
C. Revocation of Plan
Subject to the conditions to the Effective Date, the Debtors reserve the right, subject to the terms of the
Restructuring Support Agreement, to revoke or withdraw the Plan prior to the entry of the Confirmation Order and to
file subsequent plans of reorganization. If the Debtors revoke or withdraw the Plan with the prior reasonable consent
of the Required Parties, if entry of the Confirmation Order or the Effective Date does not occur, or if the Restructuring
Support Agreement terminates in accordance with its terms, then (1) the Plan shall be null and void in all respects,
(2) any settlement or compromise embodied in the Plan, assumption of executory contracts or leases effected by the
Plan, and any document or agreement executed pursuant hereto shall be deemed null and void, and (3) nothing
contained in the Plan shall (a) constitute a waiver or release of any claims by or against or any Equity Interests in such
Debtor or any other Entity, (b) prejudice in any manner the rights of the Debtors or any other Entity, or (c) constitute
an admission of any sort by the Debtors or any other Entity.
Article XII.
MISCELLANEOUS PROVISIONS
A. Immediate Binding Effect
Notwithstanding Bankruptcy Rules 3020(e), 6004(g), or 7062 or otherwise, upon the occurrence of the
Effective Date, the terms of the Plan and the documents and instruments contained in the Plan Supplement shall be
immediately effective and enforceable and deemed binding upon the Debtors, the Reorganized Debtors, and any and
all Holders of Claims and Interests (irrespective of whether such Holders of Claims or Interests are deemed to have
accepted the Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, discharges,
and injunctions described in the Plan, each Entity acquiring property under the Plan and any and all non-Debtor parties
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to Executory Contracts and Unexpired Leases. The Confirmation Order shall contain a waiver of any stay of
enforcement otherwise applicable, including pursuant to Bankruptcy Rule 3020(e), 6004(g), and 7062.
B. Additional Documents
On or before the Effective Date and in accordance with the Restructuring Support Agreement and Article I.E
of this Plan, the Debtors may file with the Bankruptcy Court such agreements and other documents as may be
necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Debtors or
Reorganized Debtors, as applicable, and all Holders of Claims or Interests receiving distributions pursuant to the Plan
and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents
and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan or the
Confirmation Order.
C. Reservation of Rights
The Plan shall have no force or effect unless and until the Bankruptcy Court enters the Confirmation Order.
None of the filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by any
Debtor with respect to the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be
an admission or waiver of any rights of any Debtor with respect to the Holders of Claims or Interests prior to the
Effective Date.
D. Successors and Assigns
The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and
shall inure to the benefit of any heir, executor, administrator, successor or assign, affiliate, officer, director, agent,
representative, attorney, beneficiaries or guardian, if any, of each Entity.
E. Service of Documents
Any pleading, notice, or other document required by the Plan to be served on or delivered to the Debtors or
Reorganized Debtors, as applicable, shall also be served on or delivered to:
Debtors Proposed Co-Counsel to the Debtors
APC Automotive Technologies
Intermediate Holdings LLC
10822 West Toller Drive
Suite 370
Littleton, Colorado 80127
Attn.: Patricia Warfield, Marc Weinsweig, and
Chris Walling
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attn.: Jonathan S. Henes, P.C., George Klidonas, and
Neda Davanipour
Klehr Harrison Harvey Branzburg LLP
919 North Market Street
Wilmington, Delaware 19801
Attn.: Morton R. Branzburg and Domenic E. Pacitti
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United States Trustee Counsel to the Term Loan Lender Group
Office of the United States Trustee
for the District of Delaware
844 King Street, Suite 2207
Wilmington, Delaware 19801
King & Spalding LLP
1180 Peachtree Street, NE
Atlanta, Georgia 30309
Attn.: W. Austin Jowers
With a copy to:
King & Spalding LLP
1185 Avenue of the Americas
New York, New York 10036
Attn.: Peter Montoni and Michael R. Handler
Counsel to the ABL Lenders Counsel to the Consenting Sponsors
Greenberg Traurig, LLP
Terminus 200
3333 Piedmont Road NE
Suite 2500
Atlanta, GA 30305
Attn: David Kurzweil, Esq., John J. Dyer, Esq., and
Victoria Bartlett, Esq.
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020-1095
Attn.: Thomas Lauria, John Reiss, David Turetsky, and
Luke Laumann
Honigman LLP
2290 First National Building
660 Woodward Avenue
Detroit, Michigan 48226-3506
Attn.: Joseph R. Sgroi
Goodwin Procter LLP
New York Times Building
620 8th Avenue
New York, New York 10018
Attn.: Bruce Rader and Michael Goldstein
After the Effective Date, the Debtors or Reorganized Debtors, as applicable, have authority to send a notice
to Entities that, to continue to receive documents pursuant to Bankruptcy Rule 2002, they must file a renewed request
to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Debtors are authorized to limit
the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have filed such
renewed requests.
In accordance with Bankruptcy Rules 2002 and 3020(e), within fourteen (14) calendar days of the date of
entry of the Confirmation Order, the Debtors shall serve the Notice of Confirmation by United States mail, first class
postage prepaid, by hand, or by overnight courier service to all parties served with the Confirmation Hearing notice;
provided that no notice or service of any kind shall be required to be mailed or made upon any Entity to whom the
Debtors mailed a Confirmation Hearing notice but received such notice returned marked “undeliverable as addressed,”
“moved, left no forwarding address” or “forwarding order expired,” or similar reason unless the Debtors or
Reorganized Debtors, as applicable, have been informed in writing by such Entity or are otherwise aware of that
Entity’s new address. To supplement the notice described in the preceding sentence, within (21) twenty-one calendar
days of the date of the Confirmation Order, the Debtors or Reorganized Debtors, as applicable, shall publish the Notice
of Confirmation once in the The New York Times. Mailing and publication of the Notice of Confirmation in the time
and manner set forth in this paragraph shall be good and sufficient notice under the particular circumstances and in
accordance with the requirements of Bankruptcy Rules 2002 and 3020(e), and no further notice is necessary.
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F. Term of Injunctions or Stays
Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays in effect in the
Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and
extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation
Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or
the Confirmation Order shall remain in full force and effect in accordance with their terms.
G. Entire Agreement
On the Effective Date, the Plan and the Plan Supplement supersede all previous and contemporaneous
negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which
have become merged and integrated into the Plan.
H. Plan Supplement Exhibits
All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan
as if set forth in full in the Plan. Copies of such exhibits and documents shall be made available upon written request
to the Debtors’ proposed counsel at the address above or by downloading such exhibits and documents from
https://cases.stretto.com/APC or the Bankruptcy Court’s website at www.deb.uscourts.gov. Unless otherwise ordered
by the Bankruptcy Court, to the extent any exhibit or document in the Plan Supplement is inconsistent with the terms
of any part of the Plan that does not constitute the Plan Supplement, such part of the Plan that does not constitute the
Plan Supplement shall control. The documents considered in the Plan Supplement are an integral part of the Plan and
shall be deemed approved by the Bankruptcy Court pursuant to the Confirmation Order.
I. Governing Law
Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy
Rules) or unless otherwise specifically stated, the laws of the State of Delaware, without giving effect to the principles
of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements,
documents, instruments, or contracts executed or entered into in connection with the Plan (except as otherwise set
forth in those agreements, in which case the governing law of such agreement shall control), and corporate governance
matters; provided that corporate governance matters relating to Debtors or Reorganized Debtors, as applicable, not
incorporated in Delaware shall be governed by the laws of the state of incorporation of the applicable Debtor or
Reorganized Debtor, as applicable.
J. Nonseverability of Plan Provisions upon Confirmation
If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid,
void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to
make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or
provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or
interpreted and otherwise consistent with Article I.E of this Plan. Notwithstanding any such holding, alteration, or
interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no
way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall
constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been
altered or interpreted in accordance with the foregoing, is the following: (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 Reorganized
Debtors, as applicable; and (c) nonseverable and mutually dependent.
K. Closing of Chapter 11 Cases
The Reorganized Debtors shall promptly file, after the full administration of the Chapter 11 Cases, with the
Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court
to close the Chapter 11 Cases.
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L. Section 1125(e) Good Faith Compliance
The Debtors, the Reorganized Debtors, the Agents, the Secured Lenders, the DIP Lenders, the Consenting
Sponsors, and each of their respective Representatives shall be deemed to have acted in “good faith” under section
1125(e) of the Bankruptcy Code.
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[Signature Page to Plan]
Respectfully submitted, as of the date first set forth above,
APC Automotive Technologies Intermediate Holdings, LLC
(on behalf of itself and all other Debtors)
By: /s/ Marc Weinsweig
Name: Marc Weinsweig
Title: Interim Chief Financial Officer
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Exhibit B
Blackline Comparison
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SOLICITATION VERSION
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE
) In re: ) Chapter 11 ) APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC, et al.,1
) )
Case No. 20-[______] (___)-11466 (CSS)
) Debtors. ) (Joint Administration Requested)(Jointly Administered) )
FIRST AMENDED JOINT PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION
OF APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC AND ITS DEBTOR AFFILIATES PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
THIS CHAPTER 11 PLAN IS BEING SOLICITED FOR ACCEPTANCE OR REJECTION IN ACCORDANCE WITH BANKRUPTCY CODE SECTION 1125 AND WITHIN THE MEANING OF BANKRUPTCY CODE SECTION 1126. THIS CHAPTER 11 PLAN WILL BE SUBMITTED TO THE BANKRUPTCY COURT FOR APPROVAL FOLLOWING SOLICITATION AND THE DEBTORS’ FILING FOR CHAPTER 11 BANKRUPTCY. Jonathan S. Henes, P.C. (admitted pro hac vice pending) Domenic E. Pacitti (DE Bar No. 3989) George Klidonas (pro hac vice pending) KIRKLAND & ELLIS LLP
Michael W. Yurkewicz (DE Bar No. 4165)
KIRKLAND & ELLIS INTERNATIONAL LLP KLEHR HARRISON HARVEY BRANZBURG LLP 601 Lexington Avenue 919 North Market Street, Suite 1000 New York, New York 10022 Wilmington, Delaware 19801 Telephone: (212) 446-4800 Telephone: (302) 426-1189 Facsimile: (212) 446-4900 Facsimile: (302) 426-9193 -and- Morton R. Branzburg (admitted pro hac vice pending) KLEHR HARRISON HARVEY BRANZBURG LLP 1835 Market Street, Suite 1400 Philadelphia, Pennsylvania 19103 Telephone: (215) 569-3007 Facsimile: (215) 568-6603 Proposed Co-Counsel to the Debtors and Debtors in Possession
Dated: May 31July 8, 2020
1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, are: APC Automotive Technologies Intermediate Holdings, LLC (0991); APC Automotive Technologies, LLC (6651); CWD Acquisition, LLC (4286); CWD Holding Corp. (7381); CWD Intermediate Corp. (7285); CWD, LLC (5832); Qualis Enterprises, Inc. (6610); Qualis Automotive, LLC (7291); AP Emissions Technologies, LLC (8219); AP Exhaust Products Disc, Inc. (0288); Eastern Manufacturing, LLC (2410); Airtek, LLC (1239); Aristo, LLC (4541). The Debtors’ service address is: 10822 West Toller Drive, Suite 370, Littleton, Colorado 80127.
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TABLE OF CONTENTS
Page
Article I. DEFINED TERMS AND RULES OF INTERPRETATION......................................................................... 1 A. Defined Terms .................................................................................................................................. 1 B. Rules of Interpretation .................................................................................................................... 12 C. Computation of Time ...................................................................................................................... 13 D. Controlling Document ..................................................................................................................... 13 E. Restructuring Support Agreement ................................................................................................... 13
Article II. ADMINISTRATIVE CLAIMS, DIP FACILITY CLAIMS, PRIORITY TAX CLAIMS, AND UNITED STATES TRUSTEE STATUTORY FEES ................................................................................... 13 A. Administrative Claims .................................................................................................................... 13 B. DIP Facility Claims ......................................................................................................................... 15 C. Priority Tax Claims ......................................................................................................................... 15 D. United States Trustee Statutory Fees .............................................................................................. 15
Article III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS ........................................... 15 A. Classification of Claims .................................................................................................................. 15 B. Treatment of Claims and Interests .................................................................................................. 16 C. Special Provision Governing Unimpaired Claims .......................................................................... 19 D. Voting Classes; Presumed Acceptance by Non-Voting Classes ..................................................... 19 E. Controversy Concerning Impairment .............................................................................................. 19 F. Confirmation Pursuant to Section 1129(a)(10) and Section 1129(b) of the Bankruptcy
Code ................................................................................................................................................ 19 G. Subordinated Claims ....................................................................................................................... 19 H. Elimination of Vacant Classes ........................................................................................................ 20 I. Intercompany Interests .................................................................................................................... 20
Article IV. MEANS FOR IMPLEMENTATION OF THE PLAN .............................................................................. 20 A. Substantive Consolidation ............................................................................................................... 20 B. General Settlement of Claims and Interests .................................................................................... 20 C. Restructuring Transactions ............................................................................................................. 20 D. Corporate Existence ........................................................................................................................ 21 E. Vesting of Assets in the Reorganized Debtors ................................................................................ 21 F. Cancellation of Agreements, Security Interests, and Other Interests .............................................. 22 G. Sources for Plan Distributions and Transfers of Funds Among Debtors ........................................ 22 H. New Equity Documents .................................................................................................................. 22 I. Exemption from Registration Requirements ................................................................................... 23 J. Organizational Documents .............................................................................................................. 23 K. Exemption from Certain Transfer Taxes and Recording Fees ........................................................ 23 L. Directors and Officers of the Reorganized Debtors ........................................................................ 23 M. Directors and Officers Insurance Policies ....................................................................................... 24 N. Other Insurance Policies ................................................................................................................. 24 O. Preservation of Rights of Action ..................................................................................................... 24 P. Corporate Action ............................................................................................................................. 25 Q. Effectuating Documents; Further Transactions ............................................................................... 25 R. Management Incentive Plan ............................................................................................................ 25 S. Workers’ Compensation Programs ................................................................................................. 25
Article V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES; EMPLOYEE BENEFITS; AND INSURANCE POLICIES ............................................................................................... 26 A. Assumption of Executory Contracts and Unexpired Leases ........................................................... 26 B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases ................................... 26
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C. Contracts and Leases Entered into After the Petition Date ............................................................. 27 D. Indemnification and Reimbursement Obligations ........................................................................... 27 E. Employee Compensation and Benefits ........................................................................................... 27 F. Modifications, Amendments, Supplements, Restatements, or Other Agreements .......................... 28 G. Reservation of Rights ...................................................................................................................... 28 H. Nonoccurrence of Effective Date .................................................................................................... 28
Article VI. PROVISIONS GOVERNING DISTRIBUTIONS .................................................................................... 28 A. Timing and Calculation of Amounts to Be Distributed .................................................................. 28 B. Delivery of Distributions ................................................................................................................ 29 C. Manner of Payment ......................................................................................................................... 30 D. No Postpetition or Default Interest on Claims ................................................................................ 30 E. Compliance with Tax Requirements/Allocations ............................................................................ 30 F. Surrender of Cancelled Instruments or Securities ........................................................................... 31 G. Claims Paid or Payable by Third Parties ......................................................................................... 31
Article VII. PROCEDURES FOR RESOLVING UNLIQUIDATED AND DISPUTED CLAIMS OR EQUITY INTERESTS .................................................................................................................................. 31 A. Allowance of Claims and Interests.................................................................................................. 31 B. Proofs of Claim ............................................................................................................................... 32 C. Claims Administration Responsibilities .......................................................................................... 32 D. Estimation of Claims and Interests.................................................................................................. 32 E. Adjustment to Claims Without Objection ....................................................................................... 32 F. Disallowance of Certain Claims ...................................................................................................... 33 G. No Distributions Pending Allowance .............................................................................................. 33 H. Distributions After Allowance ........................................................................................................ 33 I. No Interest ....................................................................................................................................... 33
Article VIII. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE ............................................................... 33 A. Conditions Precedent to the Effective Date .................................................................................... 33 B. Effect of Non-Occurrence of Conditions to the Effective Date ...................................................... 34 C. Waiver of Conditions ...................................................................................................................... 34
Article IX. RELEASE, INJUNCTION, AND RELATED PROVISIONS .................................................................. 35 A. Discharge of Claims and Termination of Interests; Compromise and Settlement of
Claims, Interests, and Controversies ............................................................................................... 35 B. Releases by the Debtors ................................................................................................................ 35 C. Releases by the Releasing Parties ................................................................................................ 36 D. Exculpation .................................................................................................................................... 37 E. Injunction....................................................................................................................................... 38 F. Setoffs and Recoupment ................................................................................................................. 38 G. Release of Liens .............................................................................................................................. 39
Article X. RETENTION OF JURISDICTION ............................................................................................................ 39
Article XI. MODIFICATION, REVOCATION, OR WITHDRAWAL OF PLAN .................................................... 41 A. Modification of Plan ....................................................................................................................... 41 B. Effect of Confirmation on Modifications ........................................................................................ 41 C. Revocation of Plan .......................................................................................................................... 41
Article XII. MISCELLANEOUS PROVISIONS ........................................................................................................ 41 A. Immediate Binding Effect ............................................................................................................... 41 B. Additional Documents .................................................................................................................... 41 C. Reservation of Rights ...................................................................................................................... 42 D. Successors and Assigns ................................................................................................................... 42 E. Service of Documents ..................................................................................................................... 42
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F. Term of Injunctions or Stays ........................................................................................................... 43 G. Entire Agreement ............................................................................................................................ 43 H. Plan Supplement Exhibits ............................................................................................................... 44 I. Governing Law ............................................................................................................................... 44 J. Nonseverability of Plan Provisions upon Confirmation .................................................................. 44 K. Closing of Chapter 11 Cases ........................................................................................................... 44 L. Section 1125(e) Good Faith Compliance ........................................................................................ 44
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FIRST AMENDED JOINT PREPACKAGED CHAPTER 11 PLAN OF REORGANIZATION OF APC AUTOMOTIVE TECHNOLOGIES INTERMEDIATE HOLDINGS, LLC AND
ITS DEBTOR AFFILIATES PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE
AirTek, LLC, AP Emissions Technologies, LLC, AP Exhaust Products DISC, Inc., APC Automotive Technologies Intermediate Holdings, LLC, APC Automotive Technologies, LLC, Aristo, LLC, CWD Acquisition, LLC, CWD Holding Corp., CWD Intermediate Holding Corp., CWD, LLC, Eastern Manufacturing, LLC, Qualis Automotive, L.L.C., and Qualis Enterprises, Inc. (each a “Debtor” and, collectively, the “Debtors”) propose this joint prepackaged plan of reorganization for the resolution of outstanding claims against and equity interests in the Debtors. Capitalized terms used in the Plan and not otherwise defined have the meanings ascribed to such terms in Article I.A of this Plan.
Although proposed jointly for administrative purposes, the Plan constitutes a separate Plan for each Debtor for the resolution of outstanding Claims and Interests pursuant to the Bankruptcy Code. The Debtors seek to consummate the Restructuring Transactions on the Effective Date of the Plan. Each Debtor is a proponent of the Plan within the meaning of section 1129 of the Bankruptcy Code. The classifications of Claims and Interests set forth in Article III of this Plan shall be deemed to apply separately with respect to each Plan proposed by each Debtor, as applicable. The Plan does not contemplate substantive consolidation of any of the Debtors.
Reference is made to the Disclosure Statement, filed contemporaneously with the Plan, for a discussion of the Debtors’ history, businesses, historical financial information, valuation, liquidation analysis, projections, and operations as well as a summary and analysis of the Plan and certain related matters, including distributions to be made under this Plan.
ALL HOLDERS OF CLAIMS AND INTERESTS ARE ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.
Article I.
DEFINED TERMS AND RULES OF INTERPRETATION
A. Defined Terms
The following terms shall have the following meanings when used in capitalized form herein:
1. “ABL Agent” means Wells Fargo Bank, N.A. in its capacity as administrative agent and collateral agent under the ABL Credit Agreement.
2. “ABL Claims” means any and all Claims derived from, based upon, or secured by the ABL Credit Agreement or any other agreement, instrument, or document executed at any time in connection therewith, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising thereunder or related thereto, in each case, with respect to the ABL Loans.
3. “ABL Credit Agreement” means that certain ABL Credit Agreement, dated May 10, 2017 (as amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms), by and among APC and certain of its affiliates and subsidiaries, as borrower and guarantors, the ABL Agent, and the ABL Lenders.
4. “ABL DIP Agent” means Wells Fargo Bank, N.A. in its capacity as administrative agent and collateral agent under the ABL DIP Facility.
5. “ABL DIP Credit Agreement” means the debtor-in-possession credit agreement (as amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms) to be entered into by the Debtors, the ABL DIP Agent, and the ABL DIP Lenders.
6. “ABL DIP Facility” means that certain debtor-in-possession credit facility to be provided by the ABL DIP Lenders on the terms of and subject to the conditions set forth in the ABL DIP Credit Agreement.
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7. “ABL DIP Facility Claim” means any Claim derived from or based upon the ABL DIP Facility, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising under or related to the ABL DIP Facility.
8. “ABL DIP Facility Documents” means any documentation necessary to effectuate the incurrence of the ABL DIP Facility.
9. “ABL DIP Lenders” means the banks, financial institutions, and other lenders party to the ABL DIP Facility from time to time.
10. “ABL Exit Facility” means the new $90 million asset-based revolving credit facility, which will have the terms set forth in the ABL Exit Facility Documents.
11. “ABL Exit Facility Documents” means any documentation necessary to effectuate the incurrence of the ABL Exit Facility.
12. “ABL Exit Lenders” means the banks, financial institutions, and other lenders party to the ABL Exit Facility from time to time.
13. “ABL Facility” means that certain prepetition asset-based revolving loan facility provided for under the ABL Credit Agreement.
14. “ABL Lenders” means the lenders party to the ABL Credit Agreement with respect to the “Loans” and “Letters of Credit” as defined in the ABL Credit Agreement.
15. “ABL Loans” means the “Loans” and “Letters of Credit” as defined in the ABL Credit Agreement.
16. “Accrued Professional Compensation Claim” means, at any date, a Claim for all accrued fees and reimbursable expenses for services rendered by a Retained Professional in the Chapter 11 Cases through and including such date, to the extent that such fees and expenses have not been previously paid whether pursuant to a retention order with respect to such Retained Professional or otherwise. To the extent that there is a Final Order denying some or all of a Retained Professional’s fees or expenses, such denied amounts shall no longer be considered an Accrued Professional Compensation Claim.
17. “Administrative Claim” means a Claim (other than DIP Facility Claims) for costs and expenses of administration under sections 503(b), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual and necessary costs and expenses incurred after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors; and (b) Accrued Professional Compensation Claims (to the extent Allowed by the Bankruptcy Court).
18. “Affiliate” means, with respect to any Entity, any other Entity that would fall within the meaning of the term “affiliate” set forth in section 101(2) of the Bankruptcy Code, if such Entity was a debtor in a case under the Bankruptcy Code; provided that in no event shall “affiliate” include any entity that is not directly or indirectly controlled by or under common control with the party of which such entity is an affiliate with respect to the defined terms Exculpated Party, Released Party, and Releasing Party in the Plan.
19. “Agents” means, collectively, (a) the DIP Agents, (b) the ABL Agent, (c) the Term Agent, and (d) the Distribution Agent.
20. “Allowed” means (a) any Claim (or portion thereof) that (i) is not Disputed within the applicable period of time, if any, fixed by the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, (ii) is allowed, compromised, settled, or otherwise resolved pursuant to the terms of the Plan, in any stipulation that is approved by a Final Order of the Bankruptcy Court, or pursuant to any contract, instrument, indenture, or other agreement entered into or assumed in connection herewith, or (iii) has been allowed by a Final Order of the Bankruptcy Court or (b) an Interest (or portion thereof) that is reflected as outstanding in the stock transfer ledger or similar register of the applicable Debtor as of the Effective Date. For the avoidance of doubt, any Claim or Interest (or portion thereof) that has been disallowed pursuant to a Final Order shall not be an “Allowed” Claim or Interest.
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21. “Alternate Term Exit Facility” means an alternate term loan facility, as applicable, which will have the terms set forth in the Plan Supplement and in the Alternate Term Exit Facility Documents.
22. “Alternate Term Exit Facility Documents” means any documentation necessary to effectuate the incurrence of the Alternate Term Exit Facility.
23. “APC” means APC Automotive Technologies Intermediate Holdings, LLC, a Delaware limited liability company.
24. “APC Holdings” means APC Automotive Technologies Holdings, LLC, a Delaware limited liability company.
25. “Audax” means, collectively, Audax Private Equity Fund IV AIV, L.P., AG PE Fund IV Exhaust-Aristo, LLC, Audax Co-Invest IV, L.P., AG TCI Exhaust-Aristo, LLC, AFF Co-Invest, L.P., and AG Grey Goose Holdings, LLC.
26. “Avoidance Actions” means any and all avoidance, recovery, subordination, or other claims, actions, or remedies that may be brought by or on behalf of the Debtors or their Estates or other authorized parties in interest under the Bankruptcy Code or applicable non-bankruptcy law, including actions or remedies under sections 502, 510, 542, 544, 545, 547 through 553, and 724(a) of the Bankruptcy Code or under similar or related state or federal statutes and common law, including fraudulent transfer laws.
27. “Ballot” means a ballot accompanying the Disclosure Statement upon which certain Holders of Impaired Claims entitled to vote shall, among other things, indicate their acceptance or rejection of the Plan in accordance with the Plan and the procedures governing the solicitation process.
28. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as amended from time to time.
29. “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware or such other court having jurisdiction over the Chapter 11 Cases.
30. “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. § 2075, as applicable to the Chapter 11 Cases, and the general, local, and chambers rules of the Bankruptcy Court.
31. “Business Day” means any day, other than a Saturday, Sunday, or “legal holiday” (as that term is defined in Bankruptcy Rule 9006(a)).
32. “Cash” means the legal tender of the United States of America.
33. “Causes of Action” means any claims, interests, damages, remedies, causes of action, demands, rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or otherwise. Causes of Action also include: (a) all rights of setoff, counterclaim, or recoupment and claims under contracts or for breaches of duties imposed by law; (b) the right to object to or otherwise contest Claims or Interests; (c) claims pursuant to sections 362, 510, 542, 543, 544 through 550, or 553 of the Bankruptcy Code; and (d) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy Code.
34. “Chapter 11 Cases” means (a) when used with reference to a particular Debtor, the chapter 11 case filed for that Debtor under chapter 11 of the Bankruptcy Code in the Bankruptcy Court and (b) when used with reference to all Debtors, the jointly administered chapter 11 cases for all of the Debtors.
35. “Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the Debtors.
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36. “Class” means a category of Claims or Equity Interests as set forth in Article III of this Plan pursuant to section 1122(a) of the Bankruptcy Code.
37. “Compensation and Benefits Programs” means all employment agreements and severance policies, and all employment, compensation and benefit plans, policies, workers’ compensation programs, savings plans, retirement plans, deferred compensation plans, supplemental executive retirement plans, healthcare plans, disability plans, severance benefit plans, incentive plans, life and accidental death and dismemberment insurance plans, and programs of the Debtors applicable to any of its employees and retirees.
38. “Confirmation” means the entry of the Confirmation Order by the Bankruptcy Court on the docket of the Chapter 11 Cases.
39. “Confirmation Date” means the date upon which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases.
40. “Confirmation Hearing” means the hearing(s) conducted by the Bankruptcy Court pursuant to section 1128(a) of the Bankruptcy Code to consider confirmation of the Plan, as such hearing may be adjourned or continued from time to time.
41. “Confirmation Order” means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code and approving the Disclosure Statement pursuant to section 1125 of the Bankruptcy Code.
42. “Consenting Sponsors” means each of Audax, Crescent, Harvest, and VAP.
43. “Consenting Term Loan Lenders” means the Term Loan Lenders that are or become parties to the Restructuring Support Agreement, solely in their capacity as such.
44. “Crescent” means Crescent Mezzanine Partners VII, L.P., Crescent Mezzanine Partners VII (LTL), L.P., CBDC Universal Equity, Inc., CM7B APC Equity, LLC, and CM7C APC Equity, LLC.
45. “Cure” means all amounts, including an amount of $0.00, required to cure any monetary defaults under any Executory Contract or Unexpired Lease (or such lesser amount as may be agreed upon by the parties under an Executory Contract or Unexpired Lease) that is to be assumed by the Debtors pursuant to sections 365 or 1123 of the Bankruptcy Code.
46. “Cure Claim” means a Claim based on the Debtors’ defaults on an Executory Contract or Unexpired Lease at the time such Executory Contract or Unexpired Lease is assumed by the Debtors pursuant to sections 365 or 1123 of the Bankruptcy Code.
47. “D&O Liability Insurance Policies” means all insurance policies of any of the Debtors for directors’, managers’, and officers’ liability existing as of the Petition Date.
48. “Debtor Release” means the releases set forth in Article IX.B of this Plan.
49. “Definitive Documents” means (a) the ABL Exit Facility Documents, (b) the Term Exit Facility Documents; (c) the Alternate Term Exit Facility Documents (as applicable), (d) the New Common Equity Documents, (e) the New Warrants Documents, (f) all agreements, interim and final orders, and/or amendments in connection with the use of cash collateral, (g) all agreements, documents, interim and final orders, and/or amendments in connection with the DIP Facilities, (h) the Plan, (i) the Plan Supplement, (j) the Disclosure Statement and related solicitation materials, (k) the motions and related pleadings seeking approval of the Disclosure Statement and related solicitation materials and scheduling a combined hearing for the Plan and the Disclosure Statement, and (l) the Confirmation Order.
50. “DIP Agents” means, collectively, the ABL DIP Agent and the Term DIP Agent.
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51. “DIP Credit Agreements” means, collectively, the ABL DIP Credit Agreement and the Term DIP Credit Agreement.
52. “DIP Facilities” means, collectively, the ABL DIP Facility and the Term DIP Facility.
53. “DIP Facilities Documents” means, collectively, the ABL DIP Facility Documents and the Term DIP Facility Documents.
54. “DIP Facility Claims” means, collectively, the ABL DIP Facility Claims and the Term DIP Facility Claims.
55. “DIP Fee” means 35% of the New Common Equity pursuant to the DIP Facilities Documents.
56. “DIP Lenders” means, collectively, the ABL DIP Lenders and the Term DIP Lenders.
57. “DIP Orders” means, collectively, the Interim DIP Order and the Final DIP Order.
58. “Disclosure Statement” means the disclosure statement for the Plan, including all exhibits and schedules thereto, as amended, supplemented, or modified from time to time, that is prepared and distributed in accordance with sections 1125, 1126(b), and 1145 of the Bankruptcy Code, Bankruptcy Rule 3018, and other applicable law.
59. “Disputed” means, with respect to a Claim or Interest (or portion thereof), (a) that an objection to such Claim or Interest (or portion thereof) has been filed on or before the Effective Date or (b) for which a proof of such Claim or Interest is filed; provided that in no event shall a Claim or Interest (or portion thereof) that is deemed Allowed pursuant to the Plan be a Disputed Claim or Interest.
60. “Distribution Agent” means the Debtors or any Entity or Entities chosen by the Debtors, which Entities may include the Notice and Claims Agent, to make or to facilitate distributions required by the Plan.
61. “Distribution Record Date” means the date for determining which Holders of Claims are eligible to receive distributions under the Plan, which date shall be the Confirmation Date.
62. “DOJ Settlement” means that certain settlement between the Debtors and the U.S. Department of Justice regarding the civil investigation under the False Claims Act in connection with required import duties for certain brake pad entries.
63. “Effective Date” means the date selected by the Debtors and the Requisite Consenting Term Loan Lenders that is a Business Day no later than fourteen (14) calendar days after the Confirmation Order is entered and which (a) no stay of the Confirmation Order is in effect and (b) all conditions specified in Article VIII.A of this Plan have been (i) satisfied or (ii) waived pursuant to Article VIII.A of this Plan.
64. “Entity” means an “entity” as defined in section 101(15) of the Bankruptcy Code.
65. “Equity Interest” means any issued, unissued, authorized, or outstanding shares of common equity, preferred stock, or other instrument evidencing an ownership interest in a Debtor, whether or not transferable, together with any warrants, equity-based awards or contractual rights to purchase or acquire such equity interests at any time and all rights arising with respect thereto that existed immediately before the Effective Date including any claims arising from the ownership of any instrument evidencing an ownership interest in a Debtor; provided that Equity Interest does not include any Intercompany Interest.
66. “Estate” means, as to each Debtor, the estate created for such Debtor in its Chapter 11 Case pursuant to sections 301 and 541 of the Bankruptcy Code.
67. “Exculpated Party” means each of the following, solely in its capacity as such: (i)(a) the Debtors; (b) the Reorganized Debtors; (c) APC Holdings; (d) with respect to each of the foregoing parties in clauses (i)(clause (a) and (i)(c), each of such Entity’s current and former Affiliates; and (ed) with respect to each of the foregoing parties in clauses (i)(a) through (i)(dc), each of such party’s current and former directors, managers, officers, principals,
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members, managed accounts or funds, fund advisors, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board members, financial advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals; and (ii)(a) the DIP Agents; (b) the DIP Lenders; (c) the ABL Agent; (d) the ABL Lenders; (e) the Consenting Term Loan Lenders; (f) the Term Agent; (g) the Consenting Sponsors; (h) with respect to each of the foregoing parties in clauses (ii)(a) through (ii)(g), each of such Entity’s current and former Affiliates; and (i) with respect to each of the foregoing parties in clauses (ii)(a) through (ii)(h), each of such party’s current and former directors, managers, officers, principals, members, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board members, financial advisors, investment advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals; provided that for purposes of this definition, in no event shall “Affiliate” include any entity that is not directly or indirectly, controlled by, or under common control with, the party of which such entity is an affiliate.
68. “Executory Contract” means a contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
69. “Exit Facilities” means, collectively, the ABL Exit Facility and the Term Exit Facility.
70. “Exit Facilities Documents” means the ABL Exit Facility Documents and the Term Exit Facility Documents.
71. “Final DIP Order” means an order of the Bankruptcy Court authorizing, among other things, on a final basis, the Debtors to (a) enter into the DIP Facilities and incur postpetition obligations thereunder and (b) use cash collateral pursuant to the terms set forth therein.
72. “Final Order” means an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with respect to the relevant subject matter that has not been reversed, stayed, modified, or amended, and as to which the time to appeal, seek reconsideration under Rule 59(b) or 59(e) of the Federal Rules of Civil Procedure, seek a new trial, reargument, or rehearing and, where applicable, petition for certiorari has expired and no appeal, motion for reconsideration under Rule 59(b) or 59(e) of the Federal Rules of Civil Procedure, motion for a new trial, reargument or rehearing or petition for certiorari has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought, or as to which any motion for reconsideration that has been filed pursuant to Rule 59(b) or 59(e) of the Federal Rules of Civil Procedure or any motion for a new trial, reargument, or rehearing shall have been denied, resulted in no modification of such order, or has otherwise been dismissed with prejudice; provided that the possibility that a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure or Bankruptcy Rule 9024, or any analogous rule, may be filed relating to such order or judgment shall not cause such order or judgment not to be a Final Order.
73. “FTI” means FTI Consulting, Inc., as financial advisor to the Term Loan Lender Group.
74. “General Administrative Claim” means any Administrative Claim, other than an Accrued Professional Compensation Claim and Claims for fees and expenses pursuant to 28 U.S.C § 1930(a).
75. “General Unsecured Claim” means any unsecured Claim against any Debtor as of Petition Date other than (a) a DIP Facility Claim, (b) an Administrative Claim, (c) an Accrued Professional Compensation Claim, (d) a Priority Tax Claim, (e) an Other Priority Claim, (f) an ABL Claim, (g) a Term Claim, (h) an Intercompany Claim against one or more of the Debtors that is not entitled to priority under the Bankruptcy Code or Final Order of the Bankruptcy Court, or (i) the Sponsor Claims.
76. “Governmental Unit” means a “governmental unit” as defined in section 101(27) of the Bankruptcy Code.
77. “Harvest” means, collectively, Harvest Partners VII, L.P., Harvest Partners VII (Parallel), L.P., Harvest Strategic Associates VII, L.P., Harvest APC Holdings, LLC, and Harvest APC Blocker Purchaser, L.P.
78. “Holder” means an Entity holding a Claim or Interest.
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79. “Impaired” means “impaired” within the meaning of section 1124 of the Bankruptcy Code.
80. “Impaired Class” means a Class that is Impaired.
81. “Indemnification Provisions” means each of the Debtors’ indemnification provisions currently in place, whether in the Debtors’ bylaws, certificates of incorporation or formation, limited liability company agreements, other organizational or formation documents, board resolutions, management or indemnification agreements, or employment contracts, for the Debtors’ current and former directors, officers, managers, employees, attorneys, other professionals, and agents and such current and former directors, officers, and managers’ respective Affiliates.
82. “Intercompany Claims” means, collectively, any Claim held by a Debtor against another Debtor or an Affiliate of a Debtor or any Claim held by an Affiliate of a Debtor against a Debtor.
83. “Intercompany Interests” means an Equity Interest in a Debtor held by another Debtor.
84. “Interests” means, collectively, Equity Interests and Intercompany Interests.
85. “Interim DIP Order” means an order of the Bankruptcy Court authorizing, among other things, on an interim basis, the Debtors to (a) enter into the DIP Facilities and incur postpetition obligations thereunder and (b) use cash collateral pursuant to the terms set forth therein.
86. “King & Spalding” means King & Spalding LLP, as counsel to the Term Loan Lender Group.
87. “Lien” means a “lien” as defined in section 101(37) of the Bankruptcy Code.
88. “Local Bankruptcy Rules” means the Local Bankruptcy Rules for the District of Delaware.
89. “Management Incentive Plan” means a post-emergence customary management equity incentive plan, in form and substance acceptable to the Requisite Consenting Term Loan Lenders and otherwise consistent with the terms of the Restructuring Support Agreement, to be adopted by the New Board, under which 10% of the New Common Equity on a fully diluted basis shall be reserved as of the Effective Date for issuance as awards thereunder in the form of profits interests, restricted stock, and/or other forms of incentive based equity.
90. “New Board” means the board of directors of the parent company of the Reorganized Debtors, as determined in accordance with the Restructuring Support Agreement and the New Common Equity Documents.
91. “New Common Equity” means a single class of equity interests in a Reorganized Debtor entity to be authorized, issued, or reserved on the Effective Date pursuant to the Plan, in accordance with the terms and conditions set forth in the Restructuring Support Agreement, and as provided in the Restructuring Transactions Memorandum.
92. “New Common Equity Documents” means any shareholder agreement, limited liability company agreement, operating agreement, organizational or similar governing documents, evidence of equity interests (including share or unit certificates or other mutually agreed evidence of equity interests to be issued in accordance with the Restructuring Support Agreement), or other governance documents for the Reorganized Debtors.
93. “New Equity” means the New Common Equity and the New Warrants.
94. “New Equity Documents” means the New Common Equity Documents and the New Warrants Documents.
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95. “New Warrants” means new warrants for 5% of the New Common Equity struck at an exercise price equal to 105% of the sum of (i) the aggregate obligations under the DIP Facilities, (ii) the aggregate obligations under the ABL Facility, and (iii) the outstanding Term A Debt immediately prior to the Plan Effective Date.
96. “New Warrants Documents” means the definitive documentation with respect to the New Warrants.
97. “Notice and Claims Agent” means Bankruptcy Management Solutions, Inc. d/b/a Stretto in its capacity as noticing, claims, and solicitation agent for the Debtors, pursuant to an order of the Bankruptcy Court.
98. “Other Priority Claim” means any Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code, other than a Priority Tax Claim or Claims entitled to administrative expense priority pursuant to section 503(b)(9) of the Bankruptcy Code.
99. “Other Secured Claim” means any Secured Claim against the Debtors other than the DIP Facility Claims and the Secured Lender Claims.
100. “Petition Date” means the date on which each of the Debtors commenced the Chapter 11 Cases.
101. “Plan” means this joint prepackaged plan of reorganization under chapter 11 of the Bankruptcy Code, either in its present form or as it may be altered, amended, modified, or supplemented from time to time in accordance with the Bankruptcy Code, the Bankruptcy Rules, the Restructuring Support Agreement, or the terms hereof, as the case may be, and the Plan Supplement, which is incorporated herein by reference, including all exhibits and schedules hereto and thereto.
102. “Plan Supplement” means a supplemental appendix to the Plan that shall be filed by the Debtors no later than two (2) days before the voting deadline to accept or reject the Plan or such later date as may be approved by the Bankruptcy Court on notice to parties in interests and that shall include, among other things, draft forms of documents (or term sheets thereof), schedules, and exhibits to the Plan, in each case subject to the terms and provisions of the Restructuring Support Agreement (including any consent rights as to the form and substance of such documents set forth therein) and as may be amended, modified, or supplemented from time to time on or prior to the Effective Date in accordance with the terms hereof, the Bankruptcy Code, the Bankruptcy Rules, and the Restructuring Support Agreement, including the following documents: (a) the New Equity Documents; (b) to the extent known, the identity of the members of the New Board; (c) the Exit Facilities Documents; (d) the Restructuring Transactions Memorandum, (e) the Alternate Term Exit Facility Documents (as applicable), and (f) any and all other documentation necessary to effectuate the Restructuring Transactions or that is contemplated by the Plan.
103. “Priority Tax Claim” means a Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.
104. “Pro Rata Share” or “Pro Rata” means a distribution equal in amount to the ratio of the amount of such Allowed Claim in relation to the aggregate amount of all Allowed Claims in its Class.
105. “Professional Fee Escrow Account” means an interest-bearing escrow account in an amount equal to the Professional Fee Reserve Amount funded and maintained by the Reorganized Debtors on and after the Effective Date solely for the purpose of paying all Allowed and unpaid fees and expenses of Retained Professionals in the Chapter 11 Cases.
106. “Professional Fee Reserve Amount” means the aggregate Accrued Professional Compensation through the Effective Date as estimated by the Retained Professionals in accordance with Article II.A.2.c of this Plan.
107. “Proof of Claim” means a proof of Claim filed against any Debtor in the Chapter 11 Cases.
108. “Quarterly Fees” has the meaning ascribed to such term in Article II.D of this Plan.
108.109. “Reinstatement” or “Reinstated” means, with respect to Claims and Interests, that the Claim or Interest shall be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code.
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109.110. “Released Party” means each of the following, solely in its capacity as such: (i)(a) the Debtors; (b) the Reorganized Debtors; (c) APC Holdings; (d) with respect to each of the foregoing parties in clauses (i)(a) and (i)(c), each of such Entity’s current and former Affiliates and direct or indirect equity holders; and (e) with respect to each of the foregoing parties in clauses (i)(a) through (i)(d), each of such party’s current and former directors, managers, officers, principals, members, managed accounts or funds, fund advisors, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board members, financial advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals; and (ii)(a) the DIP Agents; (b) the DIP Lenders; (c) the ABL Agent; (d) the ABL Lenders; (e) the Consenting Term Loan Lenders; (f) the Term Agent; (g) the Consenting Sponsors and their Affiliates; (h) with respect to each of the foregoing parties in clauses (ii)(a) through (ii)(g), each of such Entity’s current and former Affiliates; and (i) with respect to each of the foregoing parties in clauses (ii)(a) through (ii)(h), each of such party’s current and former directors, managers, officers, principals, members, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board members, financial advisors, investment advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals; provided that for purposes of this definition, in no event shall “Affiliate” include any entity that is not directly or indirectly, controlled by, or under common control with, the party of which such entity is an affiliate; provided, further, that any holder of a Claim or Interest that opts out of, or objects to, the releases contained in the Plan shall not be a “Released Party.”
110.111. “Releasing Party” means each of the following, solely in its capacity as such: (a) the DIP Agents; (b) the DIP Lenders; (c) the ABL Agent; (d) the ABL Lenders; (e) the Consenting Term Loan Lenders; (f) the Term Agent; (g) the Consenting Sponsors; (h) with respect to the foregoing clauses (a) through (g), each such Entity and its current and former Affiliates; and (i) with respect to the foregoing clauses (a) through (h), each such party’s current and former directors, managers, officers, principals, members, employees, equity holders (regardless of whether such interests are held directly or indirectly), predecessors, successors, assigns, subsidiaries, agents, advisory board members, financial advisors, investment advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals; (j) without limiting the foregoing, (1) each holder of a Claim or Interest that voted to accept the Plan, (2) each holder of a Claim or Interest that is Unimpaired under the Plan, where the applicable Claims or Interests have been fully paid or otherwise satisfied in accordance with the Plan, (3) holders of Claims whose vote to accept or reject the Plan was solicited but who did not vote either to accept or to reject the Plan, and (4) holders of Claims who voted to reject the Plan and who did not opt out of granting the releases provided by the Plan; provided that for purposes of this definition, in no event shall “Affiliate” include any entity that is not directly or indirectly controlled by, or under common control with, the party of which such entity is an affiliate; provided, further, that any holder of a Claim or Interest that validly opts out of, or objects to, the releases contained in the Plan shall not be a “Releasing Party.”
111.112. “Reorganized Debtors” means the Debtors, as reorganized pursuant to and under the Plan, or any successor thereto by merger, consolidation, or otherwise on or after the Effective Date, including any transferee, assign, or successor of any Reorganized Debtor created to issue the New Common Equity as determined by the Debtors and the Requisite Consenting Term Loan Lenders prior to the Effective Date.
112.113. “Representatives” means, with regard to an Entity, current and former officers, directors, members (including ex officio members), managers, employees, partners, advisors, attorneys, professionals, accountants, investment bankers, investment advisors, actuaries, Affiliates, financial advisors, consultants, agents, and other representatives of each of the foregoing Entities (whether current or former, in each case in his, her or its capacity as such).
113.114. “Requisite Consenting Sponsors” means each of Audax, Crescent, Harvest, and VAP.
114.115. “Requisite Consenting Term Loan Lenders” means the Consenting Term Loan Lenders who hold, in the aggregate, greater than fifty (50) percent in principal amount outstanding of all Term Claims held by the Consenting Term Loan Lenders.
115.116. “Required Parties” means, collectively, the Debtors, the Requisite Consenting Sponsors, and the Requisite Consenting Term Loan Lenders.
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116.117. “Restructuring Support Agreement” means that certain Restructuring Support Agreement (including the exhibits and annexes attached thereto) entered into on May 30, 2020 (as amended or supplemented from time to time in accordance with the terms thereof), by and among the Debtors, the Consenting Sponsors, the Consenting Lenders, and any subsequent Entity that becomes a party thereto pursuant to the terms thereof, as attached to the Disclosure Statement as Exhibit B.
117.118. “Restructuring Transactions” means the transactions described in Article IV.C of this Plan.
118.119. “Restructuring Transactions Memorandum” means that certain memorandum regarding the Restructuring Transactions under the Plan that may be included in the Plan Supplement, which memorandum must be consistent with the terms and conditions set forth in the Restructuring Support Agreement and otherwise in form and substance reasonably acceptable to the Debtors and the Requisite Consenting Term Loan Lenders.
119.120. “Retained Professional” means an Entity: (a) employed in the Chapter 11 Cases pursuant to a Final Order in accordance with sections 327 and 1103 of the Bankruptcy Code and to be compensated for services rendered prior to the Effective Date, pursuant to sections 327, 328, 329, 330, or 331 of the Bankruptcy Code; or (b) for which compensation and reimbursement has been allowed by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.
120.121. “SEC” means the Securities and Exchange Commission.
121.122. “Secured Claim” means, when referring to a Claim, a Claim: (a) secured by a Lien on property in which the Estate has an interest, which Lien is valid, perfected, and enforceable pursuant to applicable law or by Final Order of the Bankruptcy Court, or that is subject to setoff pursuant to section 553 of the Bankruptcy Code, to the extent of the value of the creditor’s interest in the Estate’s interest in such property or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) of the Bankruptcy Code or (b) otherwise Allowed pursuant to the Plan or Final Order of the Bankruptcy Court as a secured claim.
122.123. “Secured Lender Claims” means the ABL Claims and the Term Claims.
123.124. “Secured Lenders” means those Entities that are Holders of ABL Claims and/or Term Claims
124.125. “Securities” means any instruments that qualify under section 2(a)(1) of the Securities Act, including the New Equity.
125.126. “Securities Act” means the Securities Act of 1933, as now in effect or hereafter amended, or any regulations promulgated thereunder.
126.127. “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.
127.128. “Sponsor Claims” means any and all outstanding Claims that APC Holdings, the Consenting Sponsors, and/or any controlled affiliates of the Consenting Sponsors, solely in their capacities as such, may have against the Debtors; provided that the Sponsor Claims shall not include (a) any Term Claims held by any Consenting Sponsor, (b) rights of any of the Consenting Sponsors based on, arising from, or related to the Plan, (c) Claims based on, arising from, or related to any Indemnification Provisions or D&O Liability Insurance Policies, or (d) any Claims entered into on an arm’s length basis in the ordinary course of business by any portfolio company of the Consenting Sponsors.
128.129. “Term A Claims” means any and all Claims held by Term A Lenders derived from, based upon, or secured by the Term Credit Agreement or any other agreement, instrument, or document executed at any time in
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connection therewith, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising thereunder or related thereto.
129.130. “Term A Debt” means the Term A-1 Loans, Term A-2 Loans, and Term A-3 Loans, as such terms are defined in the Term Credit Agreement, outstanding under the Term Credit Agreement.
130.131. “Term A Lenders” means the lenders party to the Term Credit Agreement holding Term A Debt.
131.132. “Term Agent” means Wilmington Trust, N.A. in its capacity as administrative agent and collateral agent under the Term Credit Agreement.
132.133. “Term B Claims” means any and all Claims held by Term B Lenders derived from, based upon, or secured by the Term Credit Agreement or any other agreement, instrument, or document executed at any time in connection therewith, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising thereunder or related thereto.
133.134. “Term B Debt” means the Term B Loans, as such term is defined in the Term Credit Agreement, outstanding under the Term Credit Agreement.
134.135. “Term B Lenders” means the lenders party to the Term Credit Agreement holding Term B Debt.
135.136. “Term Claims” means the Term A Claims and the Term B Claims.
136.137. “Term Credit Agreement” means that certain First Lien Credit Agreement, dated May 10, 2017 (as amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms), by and among APC and certain of its affiliates and subsidiaries, as borrowers and guarantors, the Term Agent, and the Term Loan Lenders.
137.138. “Term Credit Facility” means that certain term loan facility provided for under the Term Credit Agreement.
138.139. “Term DIP Agent” means Wilmington Trust, N.A. in its capacity as administrative agent and collateral agent under the Term DIP Facility.
139.140. “Term DIP Credit Agreement” means, to the extent applicable, the debtor-in-possession credit agreement (as amended, restated, modified, supplemented, or replaced from time to time in accordance with its terms) to be entered into by the Debtors, the Term DIP Agent, and the Term DIP Lenders.
140.141. “Term DIP Facility” means a new money term debtor-in-possession credit facility in aggregate principal amount of $50 million on the terms of and subject to the conditions set forth in the Term DIP Credit Agreement.
141.142. “Term DIP Facility Claim” means any Claim derived from or based upon the Term DIP Facility, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising under or related to the Term DIP Facility.
142.143. “Term DIP Facility Documents” means any documentation necessary to effectuate the incurrence of the Term DIP Facility.
143.144. “Term DIP Lenders” means the banks, financial institutions, and other lenders party to the Term DIP Facility from time to time.
144.145. “Term Exit Facility” means the $50 million term loan facility, which will have the terms set forth in the Term Exit Facility Documents.
145.146. “Term Exit Facility Documents” means any documentation necessary to effectuate the incurrence of the Term Exit Facility.
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146.147. “Term Exit Lenders” means the banks, financial institutions, and other lenders party to the Term Exit Facility from time to time.
147.148. “Term Loan Lenders” means, collectively, the Term A Lenders and Term B Lenders.
148.149. “Term Loan Lender Group” means the ad hoc group of Consenting Term Loan Lenders represented by King & Spalding and FTI.
149.150. “Term Debt” means the Term A Debt and the Term B Debt outstanding under the Term Credit Agreement.
150.151. “Third-Party Release” means the releases set forth in Article IX.C of this Plan.
151.152. “Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under section 365 of the Bankruptcy Code.
152.153. “Unimpaired” means, with respect to a Claim, Equity Interest, or Class of Claims or Equity Interests, not “impaired” within the meaning of sections 1123(a)(4) and 1124 of the Bankruptcy Code.
153.154. “United States Trustee” means the United States Trustee for the District of Delaware.
154.155. “VAP” means VAP Holdings, Inc.
B. Rules of Interpretation
1. For purposes herein: (a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (b) unless otherwise specified, any reference herein to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; (c) unless otherwise specified, any reference herein to an existing document or exhibit having been filed or to be filed shall mean that document or exhibit, as it may thereafter be amended, modified, or supplemented; (d) unless otherwise specified, all references herein to “Articles” are references to Articles of this Plan; (e) the words ‘‘herein,’’ “hereof,” and ‘‘hereto’’ refer to the Plan in its entirety rather than to a particular portion of the Plan; (f) the words “include” and “including” and variations thereof shall not be deemed to be terms of limitation and shall be deemed to be followed by the words “without limitation”; (g) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable state limited liability company laws; (h) references to “Proofs of Claim,” “holders of Claims,” “Disputed Claims,” and the like shall include “Proofs of Interest,” “holders of Interests,” “Disputed Interests,” and the like, as applicable; (i) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation hereof; (j) unless otherwise specified herein, the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; (k) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be; and (l) any effectuating provisions may be interpreted by the Reorganized Debtors in such a manner that is consistent with the overall purpose and intent of the Plan without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity, subject to the terms of the Restructuring Support Agreement, and such interpretation shall control.
2. All references in the Plan to monetary figures refer to currency of the United States of America, unless otherwise expressly provided.
3. Except as otherwise specifically provided in the Plan to the contrary, references in the Plan to the Debtors or to the Reorganized Debtors mean the Debtors and the Reorganized Debtors, as applicable, to the extent the context requires.
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C. Computation of Time
Unless otherwise specifically stated in the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed in the Plan. If the date on which a transaction may occur pursuant to the Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day. Any references to the Effective Date shall mean the Effective Date or as soon as reasonably practicable thereafter unless otherwise specified herein.
D. Controlling Document
In the event of an inconsistency between the Plan, the Restructuring Support Agreement, and the Disclosure Statement, the terms of the Plan shall control in all respects. In the event of an inconsistency between the Plan and the Plan Supplement, the Plan shall control. In the event of an inconsistency between the Plan and the Confirmation Order, the Confirmation Order shall control.
E. Restructuring Support Agreement
Notwithstanding anything to the contrary in the Plan, the Plan Supplement, the Confirmation Order, or the Disclosure Statement, any and all consent and consultation rights in the Restructuring Support Agreement with respect to the form and substance of the Plan, the Plan Supplement, and any other documents relating to the Restructuring Transactions, including any amendments, restatements, supplements, or other modifications to such documents and any consents, waivers, or other deviations under or from any such documents, shall be incorporated by reference herein and fully enforceable as if stated in full herein. Solely with respect to any consent or consultation rights in this Plan, in the event of an inconsistency between the Plan, the Plan Supplement, the Disclosure Statement, and the Restructuring Support Agreement, the terms of the Restructuring Support Agreement shall control.
Article II.
ADMINISTRATIVE CLAIMS, DIP FACILITY CLAIMS, PRIORITY TAX CLAIMS, AND UNITED STATES TRUSTEE STATUTORY FEES
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, DIP Facility Claims, and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set forth in Article III of this Plan.
A. Administrative Claims
1. General Administrative Claims
Subject to the provisions of sections 328, 330(a), and 331 of the Bankruptcy Code and except to the extent that a Holder of an Allowed General Administrative Claim and the applicable Debtor before the Effective Date or the applicable Reorganized Debtor after the Effective Date agree to less favorable treatment, each Holder of an Allowed General Administrative Claim will be paid the full unpaid amount of such Allowed General Administrative Claim in Cash: (a) if such Allowed General Administrative Claim is based on liabilities that the Debtors incurred in the ordinary course of business after the Petition Date, in accordance with the terms and conditions of the particular transaction giving rise to such Allowed General Administrative Claim and without any further action by any Holder of such Allowed General Administrative Claim; (b) if such Allowed General Administrative Claim is due as of the Effective Date, on the Effective Date, or, if such Allowed General Administrative Claim is not due as of the Effective Date, on the date that such Allowed General Administrative Claim becomes due or as soon as reasonably practicable thereafter; (c) if a General Administrative Claim is not Allowed as of the Effective Date, on the date that is no later than sixty (60) days after the date on which an order Allowing such General Administrative Claim becomes a Final Order of the Bankruptcy Court or as soon as reasonably practicable thereafter; or (d) at such time and upon such terms as set forth in a Final Order of the Bankruptcy Court.
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2. Professional Compensation Claims
a. Final Fee Applications
All final requests for Accrued Professional Compensation Claims shall be filed no later than sixty (60) days after the Effective Date. The amount of Accrued Professional Compensation Claims owed to the Retained Professionals shall be paid in Cash to such Retained Professionals from funds held in the Professional Fee Escrow Account after such Claims are Allowed by a Final Order. To the extent that funds held in the Professional Fee Escrow Account are unable to satisfy the amount of Accrued Professional Compensation Claims owed to the Retained Professionals, such Retained Professionals shall have an Allowed Administrative Claim for any such deficiency, which shall be satisfied in accordance with Article II.A.1 of this Plan. After all Allowed Accrued Professional Compensation Claims have been paid in full, any excess amounts remaining in the Professional Fee Escrow Account shall be returned to the Reorganized Debtors.
b. Professional Fee Escrow Account
On the Effective Date, the Debtors or Reorganized Debtors, as applicable, shall establish and fund the Professional Fee Escrow Account with Cash equal to the Professional Fee Reserve Amount. The Professional Fee Escrow Account shall be maintained in trust solely for the Retained Professionals. Such funds shall not be considered property of the Estates of the Debtors or the Reorganized Debtors.
c. Professional Fee Reserve Amount
To receive payment for unbilled fees and expenses incurred through the ConfirmationEffective Date, the Retained Professionals shall estimate in good faith their Accrued Professional Compensation Claims (taking into account any retainers) prior to and as of the ConfirmationEffective Date and shall deliver such estimate to the Debtors and counsel to the Term Loan Lender Group at least three (3) calendar days prior to the ConfirmationEffective Date. If a Retained Professional does not provide such estimate, the Reorganized Debtors may estimate the unbilled fees and expenses of such Retained Professional; provided that such estimate shall not be considered an admission or limitation with respect to the fees and expenses of such Retained Professional. The total amount so estimated as of the ConfirmationEffective Date shall comprise the Professional Fee Reserve Amount.
d. Post-Effective Date Fees and Expenses
Upon the Effective Date, any requirement that Retained Professionals comply with sections 327 through 331 and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate. Each Debtor or Reorganized Debtor, as applicable, may employ and pay any fees and expenses of any professional, including any Retained Professional, in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court, including with respect to any transaction, reorganization, or success fees payable by virtue of the consummation of this Plan or the occurrence of the Effective Date.
The Debtors and Reorganized Debtors, as applicable, shall pay, within ten (10) Business Days after submission of a detailed invoice to the Debtors or Reorganized Debtors, as applicable, all outstanding reasonable and documented fees and out-of-pocket expenses of the advisors to the Term Loan Lender Group. If the Debtors or the Reorganized Debtors dispute the reasonableness of any such invoice, the Debtors or Reorganized Debtors, as applicable, or the affected professional may submit such dispute to the Bankruptcy Court for a determination of the reasonableness of any such invoice, and the disputed portion of such invoice shall not be paid until the dispute is resolved. The undisputed portion of such reasonable fees and expenses shall be paid as provided herein. The Term Loan Lender Group’s counsel fees shall not be paid to the extent those fees are on account of defending a fee dispute as to counsel fees.
e. Substantial Contribution Compensation and Expenses
Except as otherwise specifically provided in the Plan, any Entity that requests compensation or expense reimbursement for making a substantial contribution in the Chapter 11 Cases pursuant to sections 503(b)(3), (4), and (5) of the Bankruptcy Code must file an application and serve such application on counsel for the Debtors or
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Reorganized Debtors, as applicable, and as required by the Bankruptcy Court, the Bankruptcy Code, and the Bankruptcy Rules on or before three (3) Business Days after the Confirmation Date.
B. DIP Facility Claims
Notwithstanding anything to the contrary herein, Holders of Allowed DIP Facility Claims, in exchange for full and final satisfaction, settlement, release, and discharge of all DIP Facility Claims (other than Claims under the DIP Facilities that expressly survive the termination thereof), on the Effective Date, all amounts outstanding under the DIP Facilities on the Effective Date, unless a Holder agrees to less favorable treatment, shall receive (1) solely with respect to the ABL DIP Lenders, its pro rata share of the ABL Exit Facility and (2) solely with respect to the Term DIP Lenders, its pro rata share of the Term Exit Facility, unless the required Term DIP Lenders have consented to the Reorganized Debtors entering into an Alternate Term Exit Facility in connection with the occurrence of the Effective Date, in which case, the DIP Term Loans shall be repaid in full in cash on the Effective Date from the proceeds of the Alternate Term Exit Facility.
C. Priority Tax Claims
Except to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each Allowed Priority Tax Claim, each Holder of an Allowed Priority Tax Claim due and payable on or prior to the Effective Date shall be treated pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim is not due and owing on or before the Effective Date, such Claim shall be paid in full in Cash in accordance with the terms of any agreement between the Debtors and such Holder or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business.
D. United States Trustee Statutory Fees
The Debtors and the Reorganized Debtors, as applicable, willshall pay fees payable pursuant to 28 U.S.C § 1930(a), including fees and expenses payable to the United States Trustee, as determined by the Bankruptcy Court at a hearing pursuant to section 1128 of the Bankruptcy Code, (“Quarterly Fees”), for each quarter (including any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever occurs first. Notwithstanding anything else to the contrary in the Plan, each of the Debtors and the Reorganized Debtors shall be jointly and severally liable to pay all Quarterly Fees accruing from and after the Effective Date until the earliest to occur of that particular Debtor’s case being converted to a case under chapter 7 of the Bankruptcy Code, dismissed, or closed. The U.S. Trustee shall not be required to file a request for payment of its Quarterly Fees, which shall be deemed an Administrative Claim against the Debtors and their Estates. The Debtors shall file all quarterly reports that become due prior to the when they become due, in a form reasonably acceptable to the U.S. Trustee, which reports shall include a separate schedule of disbursements made by each Debtor, and when applicable, each Reorganized Debtor during the applicable period, attested by an authorized representative.
Article III.
CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS
A. Classification of Claims
This Plan constitutes a separate chapter 11 plan of reorganization for each Debtor. Except for the Claims addressed in Article II above (or as otherwise set forth herein), all Claims and Interests are placed in Classes for each of the Debtors. In accordance with section 1123(a)(1) of the Bankruptcy Code, the Debtors have not classified Administrative Claims, DIP Facility Claims, and Priority Tax Claims, as described in Article II.
The categories of Claims and Interests listed below classify Claims and Interests for all purposes, including voting, Confirmation, and distribution pursuant hereto and pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code. The Plan deems a Claim or Interest to be classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and shall be deemed classified in a different Class to the extent that any remainder of such Claim or Interest qualifies within the description of such different Class. A Claim or an
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Interest is in a particular Class only to the extent that any such Claim or Interest is Allowed in that Class and has not been paid or otherwise settled prior to the Effective Date.
Summary of Classification and Treatment of Claims and Interests
Class Claim or Interest Status Voting Rights
1 Other Secured Claims Unimpaired Not Entitled to Vote (Presumed to Accept)
2 Other Priority Claims Unimpaired Not Entitled to Vote (Presumed to Accept)
3 ABL Claims Unimpaired Not Entitled to Vote (Presumed to Accept)
4 Term Claims Impaired Entitled to Vote
5 General Unsecured Claims Unimpaired Not Entitled to Vote (Presumed to Accept)
6 Intercompany Claims Unimpaired / Impaired
Not Entitled to Vote (Presumed to Accept /
Deemed to Reject)
7 Intercompany Interests Unimpaired / Impaired
Not Entitled to Vote (Presumed to Accept /
Deemed to Reject)
8 Equity Interests Impaired Not Entitled to Vote (Deemed to Reject)
B. Treatment of Claims and Interests1
1. Class 1 — Other Secured Claims
a. Classification: Class 1 consists of all Other Secured Claims.
b. Treatment: Except to the extent that a Holder of an Allowed Other Secured Claim agrees to less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each Other Secured Claim, each Holder of an Allowed Other Secured Claim shall receive the following, at the option of the applicable Debtor:
(i) payment in full in Cash in the ordinary course of business;
(ii) the collateral securing its Allowed Other Secured Claim and payment of any interest required under section 506(b) of the Bankruptcy Code;
(iii) Reinstatement of such Allowed Other Secured Claim; or
(iv) such other treatment rendering such Allowed Other Secured Claim Unimpaired.
c. Voting: Class 1 is Unimpaired, and Holders of Class 1 Other Secured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 1 Other Secured Claims are not entitled to vote to accept or reject the Plan.
1 Allowed Claim amounts referenced in this section are subject to adjustment to reflect any changes to the
outstanding principal amounts prior to the Effective Date.
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2. Class 2 — Other Priority Claims
a. Classification: Class 2 consists of all Other Priority Claims.
b. Treatment: Except to the extent that a Holder of an Allowed Other Priority Claim agrees to less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each Other Priority Claim, each Holder of such Allowed Other Priority Claim shall receive the following at the option of the applicable Debtor:
(i) payment in full in Cash in the ordinary course of business;
(ii) Reinstatement of such Allowed Other Priority Claim; or
(iii) such other treatment rendering such Allowed Other Priority Claim Unimpaired.
c. Voting: Class 2 is Unimpaired, and Holders of Class 2 Other Priority Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 2 Other Priority Claims are not entitled to vote to accept or reject the Plan.
3. Class 3 — ABL Claims
a. Classification: Class 3 consists of ABL Claims.
b. Allowance: Upon entry of the Interim DIP Order, all loans under the ABL Credit Facility and all accrued and unpaid interest thereon and outstanding fees and expenses shall be fully-rolled into the ABL DIP Credit Facility, and upon the Effective Date, the ABL Exit Facility.
c. Treatment: Solely to the extent of any outstanding Allowed ABL Claims that were not rolled-up into the ABL DIP Credit Facility, except to the extent that a Holder of an Allowed ABL Claim agrees to less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each ABL Claim, each Holder of an Allowed ABL Claim shall receive new loans under the ABL Exit Facility in an amount equal to the principal amount of loans outstanding under the ABL Credit Agreement held by such Holder as of the Effective Date.
d. Voting: Class 3 is Unimpaired, and Holders of Class 3 ABL Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 3 ABL Claims are not entitled to vote to accept or reject the Plan.
4. Class 4 — Term Claims
a. Classification: Class 4 consists of Term Claims.
b. Allowance: On the Effective Date, Term Claims shall be deemed Allowed in the aggregate principal amount of $348.4 million, consisting of $206.2 million in the aggregate principal amount of Term A Claims and $142.2 million aggregate principal amount of Term B Claims, plus all interest, fees, expenses, costs, and other charges due under the Term Credit Agreement. As the Term A Claims and Term B Claims are subject to the same Term Credit Agreement, such Claims shall be treated in accordance with the Term Credit Agreement as set forth below.
c. Term A Claim Treatment: Except to the extent that a Holder of an Allowed Term A Claim agrees to less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each Term A Claim, on the Effective Date, each Holder of an
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Allowed Term A Claim shall receive, in full and final satisfaction of its Term A Claims, its Pro Rata Share (in relation to the aggregate amount of all Allowed Term A Claims) of 100% of the New Common Equity, subject to dilution by the New Warrants, the DIP Fee, and the Management Incentive Plan.
d. Term B Claim Treatment: On the Effective Date, all Term B Claims shall be deemed cancelled and extinguished and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distributions to Holders of Term B Claims on account of any such Interests; provided, however, that each Holder of an Allowed Term B Claim that is a Consenting Term Loan Lender or that otherwise votes in favor of the Plan shall receive its Pro Rata Share of the New Warrants.2
e. Voting: Class 4 is Impaired, and Holders of Class 4 Term Claims are entitled to vote to accept or reject the Plan.
5. Class 5 — General Unsecured Claims
a. Classification: Class 5 consists of all General Unsecured Claims.
b. Treatment: Except to the extent that a Holder of an Allowed General Unsecured Claim agrees to a less favorable treatment of its Allowed Claim, in exchange for full and final satisfaction, settlement, release, and discharge of each Allowed General Unsecured Claim, each Holder of an Allowed General Unsecured Claim (other than any Sponsor Claims or other Claims arising from the ownership of any instrument evidencing an ownership interest in a Debtor) shall have its Claim Reinstated as of the Effective Date as an obligation of the applicable Reorganized Debtor and shall be satisfied in full in the ordinary course of business in accordance with the terms and conditions of the particular transaction giving rise to such Allowed General Unsecured Claim.
c. Voting: Class 5 is Unimpaired, and Holders of Class 5 General Unsecured Claims are conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Class 5 General Unsecured Claims are not entitled to vote to accept or reject the Plan.
6. Class 6 — Intercompany Claims
a. Classification: Class 6 consists of all Intercompany Claims.
b. Treatment: On the Effective Date, Intercompany Claims shall be Reinstated, compromised, or cancelled at the election of the Debtors or the Reorganized Debtors, as applicable.
2 In the event the treatment of the Allowed Term A Claims and Allowed Term B Claims described in the two
immediately preceding paragraphs is not permitted by the Bankruptcy Court, the Holders of Allowed Term Claims shall be treated as follows under the Plan:
Except to the extent that a Holder of an Allowed Term Claim agrees to less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each Term Claim, on the Effective Date, each Holder of an Allowed Term Claim shall receive, in full and final satisfaction of its Term A Claims, its Pro Rata Share of 100% of the New Common Equity, subject to dilution by the New Warrants, the DIP Fee, and the Management Incentive Plan. The Application of Proceeds provision set forth in Section 7.04 of the Term Credit Agreement shall remain in full force and effect and govern any distributions made pursuant to the Plan, including the distribution of New Common Equity in accordance hereto.
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c. Voting: Holders of Claims in Class 6 are conclusively deemed to have accepted or rejected the Plan pursuant to section 1126(f) or section 1126(g) of the Bankruptcy Code, respectively. Therefore, such Holders are not entitled to vote to accept or reject the Plan.
7. Class 7 — Intercompany Interests
a. Classification: Class 7 consists of all Intercompany Interests.
b. Treatment: On the Effective Date, Intercompany Interests shall be Reinstated, compromised, or cancelled at the election of the Debtors or the Reorganized Debtors, as applicable.
c. Voting: Holders of Class 7 Intercompany Interests are conclusively deemed to have accepted or rejected the Plan pursuant to section 1126(f) or section 1126(g) of the Bankruptcy Code, respectively. Therefore, Holders of Intercompany Interests are not entitled to vote to accept or reject the Plan.
8. Class 8 — Equity Interests in APC
a. Classification: Class 8 consists of all Equity Interests in APC.
b. Treatment: On the Effective Date, all Equity Interests in APC shall be deemed cancelled and extinguished and shall be of no further force and effect, whether surrendered for cancellation or otherwise, and there shall be no distributions to Holders of Equity Interests in APC on account of any such Interests.
c. Voting: Class 8 is Impaired, and Holders of Class 8 Equity Interests are conclusively deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code.
C. Special Provision Governing Unimpaired Claims
Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’ or the Reorganized Debtors’ rights with respect to any Unimpaired Claim, including all legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim.
D. Voting Classes; Presumed Acceptance by Non-Voting Classes
If a Class contains Claims or Interests eligible to vote, and no Holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Plan, the Plan shall be deemed accepted by the Holders of such Claims or Interests in such Class.
E. Controversy Concerning Impairment
If a controversy arises as to whether any Claims or Interests or any Class thereof is Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.
F. Confirmation Pursuant to Section 1129(a)(10) and Section 1129(b) of the Bankruptcy Code
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance of the Plan by an Impaired Class of Claims. The Debtors shall seek Confirmation pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests.
G. Subordinated Claims
The allowance, classification, and treatment of all Allowed Claims and Interests and the respective distributions and treatments under the Plan shall take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, contract (including the Term
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Credit Agreement), section 510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy Code, the Debtors or the Reorganized Debtors, as applicable, reserve the right to re-classify any Allowed Claim or Allowed Interest in accordance with any contractual, legal, or equitable subordination relating thereto.
H. Elimination of Vacant Classes
Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a Claim or Interest temporarily Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptances or rejection of the Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.
I. Intercompany Interests
To the extent Reinstated under the Plan, distributions on account of Intercompany Interests are not being received by Holders of such Intercompany Interests, but rather only for the purposes of administrative convenience. Due to the importance of maintaining the corporate structure for the benefit of Holders that receive New Equity, the Reorganized Debtors require flexibility in connection with maintaining the corporate structure.
Article IV.
MEANS FOR IMPLEMENTATION OF THE PLAN
A. Substantive Consolidation
The Plan is being proposed as a joint plan of reorganization of the Debtors for administrative purposes only and constitutes a separate chapter 11 plan of reorganization for each Debtor. The Plan is not premised upon the substantive consolidation of the Debtors with respect to the Classes of Claims or Interests set forth in the Plan; provided that the Reorganized Debtors may consolidate Allowed Claims on a per Class basis for voting purposes.
B. General Settlement of Claims and Interests
As discussed further in the Disclosure Statement and as otherwise provided herein, pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019 (with respect to the parties that entered into the Restructuring Support Agreement) and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, upon the Effective Date, the provisions of the Plan shall constitute a good faith compromise and settlement of Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that Holders of Claims or Interests might have with respect to any Claim or Interest under the Plan. Distributions made to Holders of Allowed Claims in any Class are intended to be final.
C. Restructuring Transactions
1. Restructuring Transactions
On the Effective Date, the Debtors, the Reorganized Debtors, or any other entities may take all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan (subject to the Restructuring Support Agreement), including: (a) the execution and delivery of appropriate agreements or other documents of merger, consolidation, or reorganization containing terms that are consistent with the terms of the Plan and that satisfy the requirements of applicable law; (b) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any property, right, liability, duty, or obligation on terms consistent with the terms of the Plan; (c) the filing of appropriate certificates of incorporation, merger, or consolidation with the appropriate governmental authorities pursuant to applicable law; and (d) all other actions that the Debtors or the Reorganized Debtors, as applicable, and the Requisite Consenting Term Loan Lenders determine are necessary or appropriate.
The Confirmation Order shall and shall be deemed to, pursuant to both section 1123 and section 363 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan.
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2. Exit Facilities
On the Effective Date, the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) shall constitute legal, valid, binding, and authorized obligations of either the Reorganized Debtors or the Debtors, as applicable, and following the consummation of the Restructuring Transactions, the Exit Facilities Documents and Alternate Term Exit Facility Document (as applicable) shall constitute legal, valid, binding, and authorized obligations of the applicable Reorganized Debtors, enforceable in accordance with their terms. The financial accommodations to be extended pursuant to the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) are being extended and shall be deemed to have been extended in good faith and for legitimate business purposes and are reasonable and shall not be subject to avoidance, recharacterization, or subordination (including equitable subordination) for any purposes whatsoever and shall not constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any other applicable non-bankruptcy law. On the Effective Date, all of the Liens and security interests to be granted in accordance with the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) (a) shall be deemed to be granted, (b) shall be legal, binding, and enforceable Liens on and security interests in the collateral granted thereunder in accordance with the terms of the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable), (c) shall be deemed automatically perfected on the Effective Date (without any further action being required by the Debtors, the Reorganized Debtors, as applicable, the applicable agent, or any of the applicable lenders), having the priority set forth in the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) and subject only to such Liens and security interests as may be permitted under the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable), and (d) shall not be subject to avoidance, recharacterization, or subordination (including equitable subordination) for any purposes whatsoever and shall not constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy law. The Debtors, the Reorganized Debtors, as applicable, and the Entities granted such Liens and security interests are authorized to make all filings and recordings and to obtain all governmental approvals and consents necessary to establish and perfect such Liens and security interests under the provisions of the applicable state, provincial, federal, or other law (whether domestic or foreign) that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the entry of the Confirmation Order, and any such filings, recordings, approvals, and consents shall not be required) and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security interests to third parties.
3. New Equity
On the Effective Date, a Reorganized Debtor entity (as determined in accordance with the terms and conditions of the Restructuring Support Agreement) shall issue or reserve for issuance all of the New Equity issued or issuable in accordance with the terms herein, subject to dilution on the terms described herein and in the Restructuring Support Agreement. The (a) issuance of the New Equity for distribution pursuant to the Plan, and (b) the New Common Equity issuable upon exercise of the New Warrants issued under the Plan, are authorized without the need for further corporate action, and all of the shares of New Common Equity issued or issuable pursuant to the Plan shall be duly authorized, validly issued, fully paid, and non-assessable.
D. Corporate Existence
Except as otherwise provided in the Plan or the Restructuring Transactions Memorandum, each Debtor shall continue to exist as of the Effective Date as a separate corporate Entity, limited liability company, partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in effect prior to the Effective Date, except to the extent such certificate of incorporation and bylaws (or other formation documents) are amended by the Plan or otherwise, and to the extent such documents are amended, such documents are deemed to be pursuant to the Plan and require no further action or approval.
E. Vesting of Assets in the Reorganized Debtors
Except as otherwise provided in the Plan or any agreement, instrument, or other document incorporated herein, on the Effective Date, all property in each Estate, all Causes of Action, and any property acquired by any of
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the Debtors pursuant to the Plan shall vest in each respective Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
F. Cancellation of Agreements, Security Interests, and Other Interests
On the Effective Date, except to the extent otherwise provided herein (including with respect to Unimpaired Claims and all Executory Contracts and Unexpired Leases to be assumed pursuant to this Plan), all notes, instruments, certificates, and other documents evidencing Claims or Interests, including the Secured Lender Claims, Sponsor Claims, and the Interests in APC, shall be cancelled and the obligations of the Debtors or the Reorganized Debtors and any non-Debtor Affiliates thereunder or in any way related thereto shall be discharged, the Agents thereunder shall be discharged from all obligations thereunder, and all security interests and/or Liens granted under the ABL Facility and the Term Credit Facility and/or any other Secured Claims shall be automatically released, discharged, terminated, and of no further force and effect; provided that, notwithstanding Confirmation or the occurrence of the Effective Date, any credit document or agreement that governs the rights of any Holder of a Claim or Interest shall continue in effect solely for purposes of (1) allowing Holders of Allowed Claims or Interests to receive distributions under the Plan; (2) allowing and preserving the rights of the Agents or representative of Holders of Claims or Interests, as applicable, to make distributions on account of Allowed Claims or Interests, as provided herein; and (3) preserving any rights of the Term Agent and any respective predecessor thereof under the Term Credit Agreement (and related documents), including as against any money or property distributable to Term Loan Lenders, and any priority in respect of payment of fees, expenses, or indemnification and the right to exercise any charging lien. Except as provided in the Plan, on the Effective Date, the DIP Agents and Term Agent, and their respective agents, successors and assigns shall be automatically and fully discharged of all their duties and obligations associated with the DIP Facility Documents and the Term Credit Agreement (and related documents), as applicable. The commitments and obligations (if any) of the Term Loan Lenders and/or the DIP Lenders to extend any further or further or future credit or financial accommodations to any of the Debtors, any of their respective subsidiaries or any of their respective successors or assigns under the DIP Facilities Documents or the Term Credit Agreement (and related documents), as applicable, shall fully terminate and be of no further force or effect on the Effective Date. To the extent that any provision of the DIP Credit Agreements or DIP Order are of a type that survives repayment of the subject indebtedness, such provisions shall remain in effect notwithstanding satisfaction of the DIP Facilities Claims. G. Sources for Plan Distributions and Transfers of Funds Among Debtors
The Debtors shall fund distributions under the Plan with cash on hand, the proceeds of the Exit Facilities and Alternate Term Exit Facility (as applicable) and by the issuance of the New Equity. The Reorganized Debtors will be entitled to transfer funds between and among themselves as they determine to be necessary or appropriate to enable the Reorganized Debtors to satisfy their obligations under the Plan. Except as set forth herein, any changes in intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the Debtors’ historical intercompany account settlement practices and will not violate the terms of the Plan.
From and after the Effective Date, the Reorganized Debtors, subject to any applicable limitations set forth in any post-Effective Date agreement (including the Exit Facilities Documents, Alternate Term Exit Facility Documents (as applicable), the New Common Equity Documents, the New Warrants Documents, and any other documents, agreements, or instruments relating to the New Equity), shall have the right and authority without further order of the Bankruptcy Court to raise additional capital and obtain additional financing as the boards of directors of the applicable Reorganized Debtors deem appropriate.
H. New Equity Documents
On the Effective Date, the parent company of the Reorganized Debtors and the Holders of the New Equity shall enter into the New Equity Documents in substantially the form included in the Plan Supplement. The New Equity Documents shall be deemed to be valid, binding, and enforceable in accordance with their terms, and each holder of the New Equity shall be bound thereby, in each case without the need for execution by any party thereto other than the parent company of the Reorganized Debtors.
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I. Exemption from Registration Requirements
The offering, issuance, and distribution of any Securities, including the New Equity, pursuant to the Plan, shall be exempt from, among other things, the registration requirements of section 5 of the Securities Act pursuant to section 1145 of the Bankruptcy Code. Except as otherwise provided in the Plan or the governing and organizational documents, any and all New Common Equity and New Warrants issued under the Plan will be freely tradable under the Securities Act by the recipients thereof, subject to: (1) the provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act, and compliance with any applicable state or foreign securities laws, if any, and any rules and regulations of the SEC, if any, applicable at the time of any future transfer of such Securities or instruments, including any such restrictions in the New Equity Documents; (2) the restrictions, if any, on the transferability of such Securities and instruments; and (3) any other applicable regulatory approval.
The offering, issuance and distribution of New Common Equity and the New Warrants pursuant to the Plan shall be exempt from, among other things, the registration requirements of section 5 of the Securities Act pursuant to section 4(a)(2) of the Securities Act and/or another exemption from registration under the Securities Act. Any and all such Securities shall be deemed “restricted securities” that may not be offered, sold, exchanged, assigned, or otherwise transferred unless they are registered under the Securities Act or an exemption from registration under the Securities Act is available and in compliance with any applicable state or foreign securities laws.
J. Organizational Documents
Subject to Article V.D of this Plan, the Reorganized Debtors shall enter into such agreements and amend their corporate governance documents to the extent necessary to implement the terms and provisions of the Plan. Pursuant to section 1123(a)(6) of the Bankruptcy Code, the organizational documents of each of the Reorganized Debtors will prohibit the issuance of non-voting equity securities. After the Effective Date, the Reorganized Debtors may amend and restate their respective organizational documents, and the Reorganized Debtors may file their respective certificates or articles of incorporation, bylaws, or such other applicable formation documents, and other constituent documents as permitted by the laws of the respective states, provinces, or countries of incorporation and the organization documents of each of the Reorganized Debtors.
K. Exemption from Certain Transfer Taxes and Recording Fees
To the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any transfer from a Debtor to a Reorganized Debtor or to any Entity pursuant to, in contemplation of, or in connection with the Plan or pursuant to: (1) the issuance, distribution, transfer, or exchange of any debt, securities, or other interest in the Debtors or the Reorganized Debtors; (2) the creation, modification, consolidation, or recording of any mortgage, deed of trust or other security interest, or the securing of additional indebtedness by such or other means; (3) the making, assignment, or recording of any lease or sublease; or (4) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instrument of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles, or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, regulatory filing or recording fee, or other similar tax or governmental assessment, and the appropriate state or local governmental officials or agents shall forego the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.
L. Directors and Officers of the Reorganized Debtors
1. The New Board
The New Board will initially consist of nine (9) members, including the then-serving chief executive officer and eight (8) other members who will be designated in accordance with the terms of the Restructuring Support Agreement and the New Equity Documents. The identity of the New Board members will be disclosed in the Plan Supplement or at or prior to the Confirmation Hearing to the extent not known. The existing directors of each of the Debtors’ subsidiaries shall remain in their current capacities as directors of the applicable Reorganized Debtor, subject
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to the Restructuring Support Agreement, until replaced or removed in accordance with the organizational documents of the applicable Reorganized Debtors.
2. Senior Management
On the Effective Date, the officers of the Reorganized Debtors shall be substantially the same and their employment shall be subject to the ordinary rights and powers of the New Board to remove or replace them in accordance with the Reorganized Debtors’ organizational documents and any applicable employment agreements that are assumed pursuant to the Plan.
M. Directors and Officers Insurance Policies
Notwithstanding anything in the Plan to the contrary, each of the D&O Liability Insurance Policies in existence as of the Effective Date (including a six-year “tail policy” in favor of the D&O Indemnified Persons as defined below) shall be reinstated and, to the extent applicable, the Reorganized Debtors shall be deemed to have assumed all of the Debtors’ D&O Liability Insurance Policies pursuant to section 365(a) of the Bankruptcy Code effective as of the Effective Date. Entry of the Confirmation Order will constitute the Bankruptcy Court’s approval of the Reorganized Debtors’ foregoing assumption of the unexpired D&O Liability Insurance Policies. Notwithstanding anything to the contrary contained in the Plan, Confirmation of the Plan shall not discharge, impair, or otherwise modify any indemnity obligations assumed by the foregoing assumption of the D&O Liability Insurance Policies, and each such indemnity obligation will be deemed and treated as an Executory Contract that has been assumed by the Debtors under the Plan as to which no Proof of Claim need be filed.
In addition, after the Effective Date, none of the Reorganized Debtors shall terminate or otherwise reduce the coverage under any D&O Liability Insurance Policies (including a six-year “tail policy” purchased prior to the Petition Date) in effect on the Petition Date, with respect to conduct occurring prior thereto, and all directors and officers of the Debtors who served in such capacity on or at any time prior to the Effective Date shall be entitled to the full benefits of any such policy for the full term of such policy regardless of whether such directors and officers remain in such positions after the Effective Date.
N. Other Insurance Policies
On the Effective Date, each of the Debtors’ insurance policies in existence as of the Effective Date shall be Reinstated and continued in accordance with their terms and, to the extent applicable, shall be deemed assumed by the applicable Reorganized Debtor pursuant to section 365 of the Bankruptcy Code and Article V of this Plan. Nothing in the Plan shall affect, impair, or prejudice the rights of the insurance carriers, the insureds, or the Reorganized Debtors under the insurance policies in any manner, and such insurance carriers, the insureds, and Reorganized Debtors shall retain all rights and defenses under such insurance policies. The insurance policies shall apply to and be enforceable by and against the insureds and the Reorganized Debtors in the same manner and according to the same terms and practices applicable to the Debtors, as existed prior to the Effective Date.
O. Preservation of Rights of Action
In accordance with section 1123(b) of the Bankruptcy Code but subject to the releases set forth in Article IX of this Plan, all Causes of Action that a Debtor may hold against any Entity shall vest in the applicable Reorganized Debtor on the Effective Date. Thereafter, the Reorganized Debtors shall have the exclusive right, authority, and discretion to determine, initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, whether arising before or after the Petition Date, and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court. Subject to the releases set forth in Article IX of this Plan, no Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any specific Cause of Action as any indication that the Debtors or Reorganized Debtors, as applicable, will not pursue any and all available Causes of Action. The Debtors or Reorganized Debtors, as applicable, expressly reserve all rights to prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Plan, and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise) or laches, shall apply to any Cause of Action upon, after, or as a consequence of the Confirmation or the occurrence of the Effective Date.
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P. Corporate Action
Subject to the Restructuring Support Agreement, upon the Effective Date, all actions contemplated by the Plan and the Restructuring Transactions Memorandum shall be deemed authorized, approved, and, to the extent taken prior to the Effective Date, ratified without any requirement for further action by Holders of Claims or Interests, directors, managers, or officers of the Debtors, the Reorganized Debtors, or any other Entity, including: (1) assumption of Executory Contracts and Unexpired Leases; (2) selection of the directors, managers, and officers for the Reorganized Debtors; (3) the execution of and entry into the Exit Facilities Documents, Alternate Term Exit Facility Documents (as applicable), the New Common Equity Documents, and the New Warrants Documents; (4) the issuance and distribution of the New Equity as provided herein; and (5) all other acts or actions contemplated or reasonably necessary or appropriate to promptly consummate the transactions contemplated by the Plan (whether to occur before, on, or after the Effective Date). All matters provided for in the Plan involving the company structure of the Debtors and any company action required by the Debtors in connection therewith shall be deemed to have occurred on and shall be in effect as of the Effective Date without any requirement of further action by the security holders, directors, managers, authorized persons, or officers of the Debtors.
On or prior to the Effective Date, the appropriate officers, directors, managers, or authorized persons of the Debtors (including any president, vice-president, chief executive officer, treasurer, general counsel, or chief financial officer thereof) shall be authorized and directed to issue, execute, and deliver the agreements, documents, securities, certificates of incorporation, certificates of formation, bylaws, operating agreements, and instruments contemplated by the Plan (or necessary or desirable to effect the transactions contemplated by the Plan) in the name of and on behalf of the Debtors or the Reorganized Debtors, as applicable, including (1) the Exit Facilities Documents, Alternate Term Exit Facility Documents (as applicable), the New Common Equity Documents, and the New Warrants Documents and (2) any and all other agreements, documents, securities, and instruments relating to the foregoing. The authorizations and approvals contemplated by the Plan shall be effective notwithstanding any requirements under non-bankruptcy law.
Q. Effectuating Documents; Further Transactions
Prior to, on, and after the Effective Date, the Debtors and Reorganized Debtors and the directors, managers, officers, authorized persons, and members of the boards of directors or managers and directors thereof, are authorized to and may issue, execute, deliver, file, or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and provisions of the Plan, the Exit Facilities Documents, Alternate Term Exit Facility Documents (as applicable), the New Common Equity Documents, the New Warrants Documents, and any securities issued pursuant to the Plan in the name of and on behalf of the Reorganized Debtors, without the need for any approvals, authorizations, actions, or consents except for those expressly required pursuant to the Plan or the Restructuring Support Agreement.
R. Management Incentive Plan
Effective as of the Effective Date, shares will be reserved for continuing employees of the Debtors and members of the New Board, providing for up to 10% of the New Common Equity issued and outstanding on the Effective Date (on a fully diluted basis and fully distributed basis). The New Board will determine the amount and form or forms of incentive interests to be granted upon the Effective Date and the terms and conditions of such awards.
S. Workers’ Compensation Programs
As of the Effective Date, except as set forth in the Plan Supplement, the Debtors and the Reorganized Debtors shall continue to honor their obligations under (1) all applicable workers’ compensation laws in states in which the Reorganized Debtors operate and (2) the Debtors’ written contracts, agreements, agreements of indemnity, self-insured workers’ compensation bonds, policies, programs, and plans, in each case, for workers’ compensation and workers’ compensation insurance. Any and all Proofs of Claims on account of workers’ compensation shall be deemed withdrawn automatically and without any further notice to or action, order, or approval of the Bankruptcy Court; provided that nothingNothing in the Plan shall limit, diminish, or otherwise alter the Debtors’ or Reorganized Debtors’ defenses, Causes of Action, or other rights under applicable non-bankruptcy law with respect to any such
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contracts, agreements, policies, programs, and plans; provided, further, that nothing herein shall be deemed to impose any obligations on the Debtors in addition to what is provided for under applicable state law.
Article V.
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES; EMPLOYEE BENEFITS; AND INSURANCE POLICIES
A. Assumption of Executory Contracts and Unexpired Leases
On the Effective Date, except as otherwise provided in the Plan or in any contract, instrument, release, indenture, or other agreement or document entered into in connection with the Plan, all Executory Contracts and Unexpired Leases shall be deemed assumed without the need for any further notice to or action, order, or approval of the Bankruptcy Court as of the Effective Date under section 365 of the Bankruptcy Code; provided that the Restructuring Support Agreement shall be deemed assumed as of the Confirmation Date; provided, further, that, upon the occurrence of the Effective Date, the Restructuring Support Agreement will terminate in accordance with its terms.
Entry of the Confirmation Order shall constitute a Bankruptcy Court Final Order approving the assumption or assumption and assignment, as applicable, of such Executory Contracts or Unexpired Leases as set forth in the Plan, pursuant to sections 365(a) and 1123 of the Bankruptcy Code. Unless otherwise indicated, the assumption or assumption and assignment of Executory Contracts and Unexpired Leases pursuant to the Plan are effective as of the Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or a Bankruptcy Court Final Order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the applicable contracting Reorganized Debtor in accordance with its terms, except as such terms may have been modified in the Plan or any Final Order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law.
To the maximum extent permitted by law, to the extent that any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan restricts or prevents, purports to restrict or prevent, or is breached or deemed breached by the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.
B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases
Any monetary defaults under each Executory Contract and Unexpired Lease to be assumed pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the default amount in Cash on the Effective Date or in the ordinary course of business, subject to the limitation described below, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree. In the event of a dispute regarding (1) the amount of any payments to cure such a default, (2) the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, or (3) any other matter pertaining to assumption, the Bankruptcy Court shall hear such dispute prior to the assumption becoming effective. The cure payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order or orders resolving the dispute and approving the assumption and shall not prevent or delay implementation of the Plan or the occurrence of the Effective Date.
Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise and payment of the applicable cure amount shall result in the full release, satisfaction, and waiver of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption. Any proof of claim filed with respect to an Executory Contract or Unexpired Lease that is assumed shall be deemed disallowed and expunged, without further notice to or action, order or approval of the Bankruptcy Court.
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C. Contracts and Leases Entered into After the Petition Date
Contracts and leases entered into after the Petition Date by any Debtor, including any Executory Contracts and Unexpired Leases assumed by such Debtor, will be performed by the Debtor or Reorganized Debtor liable thereunder in the ordinary course of its business. Accordingly, such contracts and leases (including any assumed Executory Contracts and Unexpired Leases) will survive and remain unaffected by entry of the Confirmation Order.
D. Indemnification and Reimbursement Obligations
On and as of the Effective Date, the Indemnification Provisions will be assumed and irrevocable and will survive the effectiveness of the Plan, and the Reorganized Debtors’ governance documents will provide for the indemnification, defense, reimbursement, exculpation, and/or limitation of liability of and advancement of fees and expenses to the Debtors’ and the Reorganized Debtors’ current and former directors, officers, direct or indirect equityholders, employees, and agents (each, a “D&O Indemnified Person”) to the fullest extent permitted by law and at least to the same extent as the certificate of incorporation, bylaws, or similar organizational documents of each of the respective Debtors as of the Petition Date, against any claims or Causes of Action whether direct or derivative, liquidated or unliquidated, fixed, or contingent, disputed or undisputed, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted. None of the Reorganized Debtors shall amend and/or restate its certificate of incorporation, bylaws, or similar organizational document before or after the Effective Date to terminate or materially adversely affect (1) any of the Reorganized Debtors’ obligations referred to in the immediately preceding sentence or (2) the rights of such D&O Indemnified Persons referred to in the immediately preceding sentence. Notwithstanding anything to the contrary herein, the Reorganized Debtors shall not be required to indemnify the D&O Indemnified Persons for any claims or Causes of Action for which indemnification is barred under applicable law, the Debtors’ organizational documents, or applicable agreements governing the Debtors’ indemnification obligations.
For the avoidance of doubt, each Debtor shall continue after the Effective Date, to the fullest extent permitted by applicable law, to (i) indemnify and hold harmless (and release from any liability to the Debtors), the D&O Indemnified Persons against all D&O Expenses (as defined below), losses, claims, damages, judgments or amounts paid in settlement (collectively, “D&O Costs”) in respect of any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative, based on or arising out or relating to the fact that such D&O Indemnified Person is or was a director or officer of any Debtor arising out of acts or omissions occurring on or prior to the Effective Date (a “D&O Indemnifiable Claim”) and (ii) advance to such D&O Indemnified Persons all D&O Expenses incurred in connection with any D&O Indemnifiable Claim (including in circumstances where the D&O Indemnifying Party has assumed the defense of such claim) promptly after receipt of reasonably detailed statements therefor; provided, however, that the D&O Indemnified Person to whom D&O Expenses are to be advanced provides an undertaking to repay such advances if it is ultimately determined that such D&O Indemnified Person is not entitled to indemnification. Any D&O Indemnifiable Claims will continue until such D&O Indemnifiable Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such D&O Indemnifiable Claim are fully satisfied. For the purposes of this paragraph, “D&O Expenses” will include attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or participate in any D&O Indemnifiable Claim, but will exclude losses, claims, damages, judgments and amounts paid in settlement (which items are included in the definition of D&O Costs).
On and as of the Effective Date, any of the Debtors’ indemnification obligations with respect to any contract or agreement that is the subject of or related to any litigation against the Debtors or Reorganized Debtors (including any indemnification obligation under the Equity Purchase Agreement dated March 28, 2017 by and among AP Exhaust Holdings, LLC, Harvest APC Holdings LLC and AG Grey Goose Holdings, LLC), as applicable, shall be assumed by the Reorganized Debtors and otherwise remain unaffected by the Chapter 11 Cases; provided that the Reorganized Debtors shall not indemnify the Debtors’ directors for any claims or causes of action for which indemnification is barred under applicable law, the Debtors’ organizational documents, or applicable agreements governing the Debtors’ indemnification obligations.
E. Employee Compensation and Benefits
Subject to the provisions of the Plan and the Restructuring Support Agreement, all Compensation and Benefits Programs shall be treated as Executory Contracts under the Plan and deemed assumed on the Effective Date
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pursuant to the provisions of sections 365 and 1123 of the Bankruptcy Code; provided that with respect to management, any provision relating to equity-based awards, including any termination-related provisions with respect to equity based awards, will be replaced and superseded in its entirety by the Management Incentive Plan. The Reorganized Debtors shall honor, in the ordinary course of business, Claims of employees employed as of the Effective Date for accrued vacation time arising prior to the Petition Date and not otherwise paid pursuant to a Bankruptcy Court order.
Any assumption of Compensation and Benefits Programs pursuant to the terms herein shall not be deemed to trigger any applicable change of control, immediate vesting, termination, or similar provisions therein. No counterparty shall have rights under a Compensation and Benefits Program assumed pursuant to the Plan other than those applicable immediately prior to such assumption.
F. Modifications, Amendments, Supplements, Restatements, or Other Agreements
Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and Executory Contracts and Unexpired Leases related thereto, if any, including easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated.
Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease.
G. Reservation of Rights
Except with respect to the Restructuring Support Agreement, nothing contained in the Plan or the Plan Supplement shall constitute an admission by the Debtors or any other party that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that any Reorganized Debtor has any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption, the Debtors or the Reorganized Debtors, as applicable, shall have thirty (30) calendar days following entry of a Final Order resolving such dispute to alter their treatment of such contract or lease, including by rejecting such contract or lease nunc pro tunc to the Confirmation Date, except as otherwise provided in such Final Order.
H. Nonoccurrence of Effective Date
In the event that the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect to any request to extend the deadline for assuming or rejecting Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code, unless such deadline(s) have expired.
Article VI.
PROVISIONS GOVERNING DISTRIBUTIONS
A. Timing and Calculation of Amounts to Be Distributed
Unless otherwise provided in the Plan, on the Effective Date, the Debtors shall distribute the full amount of the distributions that the Plan provides for the ABL Claims, Term A Claims, and Term B Claims, and all other Holders of Allowed Claims or Interests shall receive on the Effective Date (or, if a Claim or Interest is not an Allowed Claim or Interest on the Effective Date, on the date that such Claim becomes an Allowed Claim or Interest) or as soon as reasonably practicable thereafter (or, in the case of Allowed General Unsecured Claims, in accordance with the terms and conditions of the particular transaction giving rise to such Allowed General Unsecured Claims), the full amount of the distributions that the Plan provides for such Allowed Claims or Interests, in each applicable Class, and in the manner provided in the Plan. If any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day but shall be deemed to have been completed as of the required date. If and to the extent that
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there are any Disputed Claims or Interests, distributions on account of any such Disputed Claims or Interests shall be made pursuant to the provisions set forth in Article VII of this Plan.
B. Delivery of Distributions
1. Delivery of Distributions on Account of ABL DIP Facility Claims
The ABL DIP Agent shall be deemed to be the Holder of any and all ABL DIP Facility Claims for purposes of distributions to be made hereunder, and any distributions on account of such ABL DIP Facility Claims shall be made to the ABL DIP Agent. As soon as practicable following compliance with the requirements set forth in Article VI of this Plan, the ABL DIP Agent shall arrange to deliver or direct the delivery of such distributions to or on behalf of the Holders of ABL DIP Facility Claims in accordance with the terms of the ABL DIP Facility, subject to any modifications to such distributions in accordance with the terms of the Plan. Notwithstanding anything in the Plan to the contrary and without limiting the exculpation and release provisions of the Plan, the ABL DIP Agent shall not have any liability to any Entity with respect to distributions made or directed to be made by the ABL DIP Agent.
2. Delivery of Distributions on Account of Term DIP Facility Claims
Distributions on account of the Term DIP Facility Claims shall be made by the Debtors directly to the holders of such Holders of Term DIP Facility Claims. As soon as practicable following compliance with the requirements set forth in Article IV of this Plan, the Debtors shall deliver such distributions to the Holders of Term DIP Facility Claims. Notwithstanding anything in the Plan to the contrary and without limiting the exculpation and release provisions of the Plan, the Term DIP Agent shall not have any liability to any Entity with respect to distributions made or directed to be made by the Term DIP Agent.
3. Delivery of Distributions on Account of ABL Claims
The ABL Agent shall be deemed to be the Holder of all Allowed ABL Claims for purposes of distributions to be made hereunder, and all distributions on account of such Allowed Claims shall be made to the ABL Agent. As soon as practicable following compliance with the requirements set forth in Article VI of this Plan, if applicable, the ABL Agent shall arrange to deliver or direct the delivery of such distributions to or on behalf of the Holders of Allowed ABL Claims in accordance with the terms of the ABL Credit Agreement and the Plan. Notwithstanding anything in the Plan to the contrary and without limiting the exculpation and release provisions of the Plan, the ABL Agent shall not have any liability to any Entity with respect to distributions made or directed to be made by the ABL Agent.
4. Delivery of Distributions on Account of Term Claims
Distributions on account of all Allowed Term Claims shall be made by the Debtors directly to the holders of such Allowed Term Claims. As soon as practicable following compliance with the requirements set forth in Article IV of this Plan, the Debtors shall deliver such distributions to the Holders of Allowed Term Claims. Notwithstanding anything in the Plan to the contrary and without limiting the exculpation and release provisions of the Plan, the Term Agent shall not have any liability to any Entity with respect to distributions made or directed to be made by the Term Agent.
5. Distributions by Distribution Agents
The Debtors and the Reorganized Debtors, as applicable, shall have the authority to enter into agreements with one or more Distribution Agents to facilitate the distributions required hereunder. To the extent the Debtors and the Reorganized Debtors, as applicable, determine to utilize a Distribution Agent to facilitate the distributions under the Plan to Holders of Allowed Claims, any such Distribution Agent would first be required to: (a) affirm its obligation to facilitate the prompt distribution of any documents; (b) affirm its obligation to facilitate the prompt distribution of any recoveries or distributions required under the Plan; (c) waive any right or ability to setoff, deduct from, or assert any lien or encumbrance against the distributions required under the Plan to be distributed by such Distribution Agent; and (d) post a bond, obtain a surety, or provide some other form of security for the performance of its duties, and the costs and expenses of procuring such forms of security shall be borne by the Debtors or the Reorganized Debtors, as applicable.
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The Debtors or the Reorganized Debtors, as applicable, shall pay to the Distribution Agents all reasonable and documented fees and expenses of the Distribution Agents without the need for any approvals, authorizations, actions, or consents. The Distribution Agents shall submit detailed invoices to the Debtors or the Reorganized Debtors, as applicable, for all fees and expenses for which the Distribution Agent seeks reimbursement, and the Debtors or the Reorganized Debtors, as applicable, shall pay those amounts that they, in their sole discretion, deem reasonable, and shall object in writing to those fees and expenses, if any, that the Debtors or the Reorganized Debtors, as applicable, deem to be unreasonable. In the event that the Debtors or the Reorganized Debtors, as applicable, object to all or any portion of the amounts requested to be reimbursed in a Distribution Agent’s invoice, the Debtors or the Reorganized Debtors, as applicable, and such Distribution Agent shall endeavor, in good faith, to reach mutual agreement on the amount of the appropriate payment of such disputed fees and/or expenses. In the event that the Debtors or the Reorganized Debtors, as applicable, and a Distribution Agent are unable to resolve any differences regarding disputed fees or expenses, either party shall be authorized to move to have such dispute heard by the Bankruptcy Court.
6. MinimumFractional Distributions
Notwithstanding anything herein to the contrary, the Reorganized Debtors and the Distribution Agents shall not be required to make distributions or payments of less than $100 (whether Cash or otherwise) and shall not be required to make partial distributions or payments of fractions of dollars. Whenever any payment or distribution of a fraction of a dollar or fractional share of New Equity under the Plan would otherwise be called for, the actual payment or distribution will reflect a rounding of such fraction to the nearest whole dollar or share of New Equity (up or down), with half dollars and half shares of New Equity or less being rounded down. The total number of authorized shares of New Common Equity or of the New Warrants, as applicable, shall be adjusted as necessary to account for the foregoing rounding.
7. Undeliverable Distributions
If any distribution to a Holder of an Allowed Claim made in accordance herewith is returned to the Reorganized Debtors (or their Distribution Agent) as undeliverable, no further distributions shall be made to such Holder unless and until the Distribution Agent is notified in writing of such Holder’s then-current address or other necessary information for delivery, at which time such undelivered distribution shall be made to such Holder within ninety (90) days of receipt of such Holder’s then-current address or other necessary information; provided that any such undelivered distribution shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of six (6) months from the later of (a) the Effective Date and (b) the date of the initial attempted distribution. After such date, all unclaimed property or interests in property shall revert to the Reorganized Debtors automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable non-bankruptcy escheat, abandoned, or unclaimed property laws to the contrary), and the right, title, and interest of any Holder to such property or interest in property shall be discharged and forever barred.
C. Manner of Payment
At the option of the Distribution Agent, any Cash payment to be made under the Plan may be made by check or wire transfer or as otherwise required or provided in applicable agreements.
D. No Postpetition or Default Interest on Claims
Unless otherwise specifically provided for in the Plan or the Confirmation Order and notwithstanding any documents that govern the Debtors’ prepetition indebtedness to the contrary, (1) postpetition and/or default interest shall not accrue or be paid on any Claims, and (2) no Holder of a Claim shall be entitled to (a) interest accruing on or after the Petition Date on any such Claim or (b) interest at the contract default rate, each as applicable.
E. Compliance with Tax Requirements/Allocations
In connection with the Plan, to the extent applicable, the Debtors, Reorganized Debtors, and other applicable withholding and reporting agents shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions pursuant hereto shall be subject to such withholding and reporting
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requirements. Notwithstanding any provision in the Plan to the contrary, the Debtors, Reorganized Debtors, and other applicable withholding and reporting agents and the Distribution Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. The Debtors, Reorganized Debtors, and other applicable withholding agents reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support and other spousal awards, liens, and encumbrances. For tax purposes, distributions in full or partial satisfaction of Allowed Claims shall be allocated first to the principal amount of Allowed Claims, with any excess allocated to unpaid interest that accrued on such Claims.
F. Surrender of Cancelled Instruments or Securities
On the Effective Date, each Holder of a certificate or instrument evidencing a Claim or an Equity Interest shall be deemed to have surrendered such certificate or instrument to the Distribution Agent. Such surrendered certificate or instrument shall be cancelled solely with respect to the Debtors, and such cancellation shall not alter the obligations or rights of any non-Debtor third parties vis-à-vis one another with respect to such certificate or instrument, including with respect to any indenture or agreement that governs the rights of the Holder of a Claim or Equity Interest, which shall continue in effect for purposes of allowing Holders to receive distributions under the Plan, charging liens, priority of payment, and indemnification rights. Notwithstanding anything to the contrary herein, this paragraph shall not apply to certificates or instruments evidencing Claims that are Unimpaired under the Plan.
G. Claims Paid or Payable by Third Parties
1. Claims Payable by Insurance
No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the Holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy.
2. Applicability of Insurance Policies
Except as otherwise provided in the Plan, distributions to Holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy. Nothing contained in the Plan shall constitute or be deemed a waiver ofor construed to impact, impair, affect, determine, release, waive, modify, limit, or expand: (i) any Cause of Action that the Debtors or any Entity may hold against any other Entity, including insurers under any policies of insurance, nor shall anything contained herein constitute or be deemed a waiver by such insurers of any defenses, including coverage defenses, held by such(ii) the terms and conditions of any applicable insurance policies, (iii) any rights, remedies, defenses to coverage, and other defenses of any insurer under or for any insurance policies (including the right of any insurer to disclaim coverage), nor otherwise alter any insurer’s existing indemnity payment obligations, or (iv) any rights of any Entity with respect to any such insurance policies or insurers.
Article VII.
PROCEDURES FOR RESOLVING UNLIQUIDATED AND DISPUTED CLAIMS OR EQUITY INTERESTS
A. Allowance of Claims and Interests
After the Effective Date, each of the Reorganized Debtors shall have and retain any and all rights and defenses such Debtor had with respect to any Claim or Equity Interest immediately prior to the Effective Date. This Article VII shall not apply to the DIP Facility Claims and the Secured Claims, which Claims shall be Allowed in full and will not be subject to any avoidance, reductions, set off, offset, recharacterization, subordination (whether equitable, contractual, or otherwise), counterclaims, cross-claims, defenses, disallowance, impairment, objection, or any other challenges under any applicable law or regulation by any person or Entity. All settled Claims approved prior to the
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Effective Date pursuant to a Final Order of the Bankruptcy Court pursuant to Bankruptcy Rule 9019 or otherwise shall be binding on all parties.
B. Proofs of Claim
Holders of Claims and Interests need not file a Proof of Claim with the Bankruptcy Court and shall be subjectto the Bankruptcy Court process only to the extent provided in the Plan. On and after the Effective Date, except as otherwise provided in the Plan, all Allowed Claims shall be satisfied in the ordinary course of business of the Reorganized Debtors. The Debtors and the Reorganized Debtors, as applicable, shall have the exclusive authority to file, settle, compromise, withdraw, or litigate to judgment any objections to Claims as permitted under the Plan. If the Debtors or Reorganized Debtors dispute any Claim or Interest, such dispute shall be determined, resolved, or adjudicated, as the case may be, in the manner as if the Chapter 11 Cases had not been commenced and shall survive the Effective Date as if the Chapter 11 Cases had not been commenced; provided that the Debtors or Reorganized Debtors may elect, at their sole option, to object to any Claim (other than Claims expressly Allowed by the Plan) and to have the validity or amount of any Claim adjudicated by the Bankruptcy Court; provided, further, that Holders of Claims and Administrative Claims may elect to resolve the validity or amount of any Claim in the Bankruptcy Court. If a Holder makes such an election, the Bankruptcy Court shall apply the law that would have governed the dispute if the Chapter 11 Cases had not been filed. All Proofs of Claim filed in these Chapter 11 Cases shall be considered objected to and Disputed without further action by the Debtors. On the Effective Date, all Proofs of Claim filed against the Debtors, regardless of when such Proofs of Claim were filed, including Proofs of Claims filed after the Effective Date, shall be deemed withdrawn.
C. Claims Administration Responsibilities
Except as otherwise specifically provided in the Plan, after the Effective Date, the Reorganized Debtors shallhave the sole authority to (1) file, withdraw, or litigate to judgment, any objections to Claims or Interests and (2) settle or compromise any Disputed Claim or Interest without any further notice to or action, order, or approval by the Bankruptcy Court. For the avoidance of doubt, except as otherwise provided in the Plan, from and after the Effective Date, each Reorganized Debtor shall have and retain any and all rights and defenses such Debtor had immediately prior to the Effective Date with respect to any Disputed Claim or Interest, including the Causes of Action retained pursuant to the Plan.
D. Estimation of Claims and Interests
Before or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may (but are notrequired to) at any time request that the Bankruptcy Court estimate any Disputed Claim or Interest that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation of any objection to any Claim or Interest or during the appeal relating to such objection. Notwithstanding any provision otherwise in the Plan, a Claim that has been expunged but that either is subject to appeal or has not been the subject of a Final Order shall be deemed to be estimated at zero ($0.00) dollars unless otherwise ordered by the Bankruptcy Court. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Plan (including for purposes of distributions), as determined by the Bankruptcy Court, and the relevant Reorganized Debtor may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.
E. Adjustment to Claims Without Objection
Any duplicate Claim or Interest or any Claim or Interest that has been paid, satisfied, amended, or superseded may be adjusted or expunged by the Reorganized Debtors without the Reorganized Debtors having to file an application, motion, complaint, objection, or any other legal proceeding seeking to object to such Claim or Interest, and without any further notice to or action, order, or approval of the Bankruptcy Court., provided that the Debtors or Reorganized Debtors shall promptly file a notice of the same, and serve such notice on the affected Holder of such Claim or Interest.
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F. Disallowance of Certain Claims
Any Claims held by Entities from which property is recoverable under section 542, 543, 550, or 553 of the Bankruptcy Code or that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code unless expressly Allowed pursuant to the Plan, and Holders of such Claims may not receive any distributions on account of such Claims and Interests until such time as such Causes of Action against that Entity have been settled or a Final Order of the Bankruptcy Court with respect thereto has been entered and all sums due, if any, to the Debtors by that Entity have been turned over or paid to the Reorganized Debtors.
G. No Distributions Pending Allowance
Notwithstanding any other provision hereof, if any portion of a Claim or Interest is a Disputed Claim or Interest, as applicable, no payment or distribution provided hereunder shall be made on account of such Claim or Interest unless and until such Disputed Claim or Interest becomes an Allowed Claim or Interest.
H. Distributions After Allowance
To the extent that a Disputed Claim or Interest ultimately becomes an Allowed Claim or Interest, distributions (if any) shall be made to the Holder of such Allowed Claim or Interest in accordance with the provisions of the Plan. As soon as reasonably practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim or Interest becomes a Final Order, the Distribution Agent shall provide to the Holder of such Claim or Interest the distribution (if any) to which such Holder is entitled under the Plan as of the Effective Date, without any interest to be paid on account of such Claim or Interest.
I. No Interest
Interest shall not accrue or be paid on any Disputed Claim with respect to the period from the Effective Date to the date a final distribution is made on account of such Disputed Claim if and when such Disputed Claim becomes an Allowed Claim.
Article VIII.
CONDITIONS PRECEDENT TO THE EFFECTIVE DATE
A. Conditions Precedent to the Effective Date
The following are conditions precedent to the Effective Date that must be satisfied or waived in accordance with the terms of the Restructuring Support Agreement and the Plan:
1. The Bankruptcy Court shall have approved the Disclosure Statement as containing adequate information with respect to the Plan within the meaning of section 1125 of the Bankruptcy Code.
2. The Confirmation Order shall have been entered and shall be in full force and effect and such Confirmation Order shall be a Final Order.
3. The Debtors shall have obtained any authorization, consents, regulatory approvals, rulings, or documents that are necessary to implement and effectuate the Plan and each of the other transactions contemplated by the Restructuring Transactions.
4. All actions, documents, certificates, and agreements necessary to implement this Plan shall have been effected or executed and delivered to the required parties and, to the extent required, filed with the applicable Governmental Units in accordance with applicable laws.
5. All conditions precedent to the effectiveness of the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) shall have been satisfied contemporaneously or duly waived.
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6. All conditions precedent to the issuance of the New Common Equity, including the New Warrants, shall have been satisfied or duly waived.
7. All documents and agreements necessary to implement the DOJ Settlement, which shall be in form and substance reasonably acceptable to the Requisite Consenting Term Loan Lenders, shall have been executed and tendered for delivery.
8. The DOJ Settlement shall be approved by the Bankruptcy Court and any required non-Bankruptcy Court and subsequently finalized by the Debtors and the DOJ.
9. All documents and agreements necessary to implement the Plan shall have been executed and tendered for delivery. All conditions precedent to the effectiveness of such documents and agreements shall have been satisfied or waived pursuant to the terms thereof (or will be satisfied and waived substantially concurrently with the occurrence of the Effective Date).
10. The final version of the Plan Supplement and all of the schedules, documents, and exhibits contained therein and all other schedules, documents, supplements, and exhibits to the Plan shall be consistent with the Restructuring Support Agreement and Article I.E of this Plan.
11. All of the other Definitive Documents not expressly set forth in Article VIII of this Plan shall have been executed in accordance with section 3 of the Restructuring Support Agreement and Article I.E of this Plan.
12. The Restructuring Support Agreement shall not have been terminated in accordance with its terms and shall be in full force and effect.
13. The Professional Fee Escrow Account shall have been established and funded.
14. All Accrued Professional Compensation Claims and expenses of Retained Professionals required to be approved by the Bankruptcy Court shall have been paid in full or amounts sufficient to pay such fees and expenses after the Effective Date shall have been placed in the Professional Fee Escrow Account pending approval by the Bankruptcy Court.
15. All invoiced reasonable and documented fees and out-of-pocket expenses payable pursuant to the Restructuring Support Agreement, Article II.A.2.d of this Plan, or an order of the Bankruptcy Court shall have been paid in full.
16. The Debtors and Reorganized Debtors, as applicable, shall have implemented the restructuring in a manner consistent in all respects with the Plan and the Restructuring Support Agreement.
B. Effect of Non-Occurrence of Conditions to the Effective Date
If the Effective Date does not occur on or before the termination of the Restructuring Support Agreement, then (1) the Plan shall be null and void in all respects, (2) any settlement or compromise embodied in the Plan, assumption of Executory Contracts or Unexpired Leases effected under the Plan, and document or agreement executed pursuant to the Plan shall be deemed null and void, and (3) nothing contained in the Plan, the Confirmation Order, or the Disclosure Statement shall (a) constitute a waiver or release of any Claims, Interests, or Causes of Action, (b) prejudice in any manner the rights of the Debtors or any other Entity, or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors or any other Entity.
C. Waiver of Conditions
The Debtors or the Reorganized Debtors, as applicable, subject to the Restructuring Support Agreement, may waive any of the conditions to the Effective Date set forth above at any time, without any notice to parties in interest and without any further notice to or action, order, or approval of the Bankruptcy Court and without any formal action other than a proceeding to confirm the Plan.
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Article IX.
RELEASE, INJUNCTION, AND RELATED PROVISIONS
A. Discharge of Claims and Termination of Interests; Compromise and Settlement of Claims, Interests, and Controversies
Pursuant to and to the fullest extent permitted by section 1141(d) of the Bankruptcy Code and except as otherwise specifically provided in the Plan, the distributions, rights, and treatments that are provided in the Plan shall be in full and final satisfaction, settlement, release, and discharge, effective as of the Effective Date, of all Interests and Claims of any nature whatsoever, including any interest accrued on Claims from and after the Petition Date, whether known or unknown, against, liabilities of, Liens on, obligations of, rights against the Debtors, the Reorganized Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims or Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any contingent or non-contingent liability on account of representations or warranties issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, in each case whether or not: (1) a Proof of Claim or Interest is filed or deemed filed pursuant to section 501 of the Bankruptcy Code; (2) a Claim or Interest is Allowed; or (3) the Holder of such Claim or Interest has accepted the Plan. Except as otherwise provided herein, any default by the Debtors or their Affiliates with respect to any Claim or Interest that existed immediately prior to or on account of the filing of the Chapter 11 Cases shall be deemed cured on the Effective Date. The Confirmation Order shall be a judicial determination of the discharge of all Claims and Interests subject to the Effective Date occurring, except as otherwise expressly provided in the Plan. For the avoidance of doubt, nothing in this Article IX.A shall affect the rights of Holders of Claims and Interests to seek to enforce the Plan, including the distributions to which Holders of Allowed Claims and Interests are entitled under the Plan.
Pursuant to Bankruptcy Rule 9019 (with respect to the parties that entered into the Restructuring Support Agreement) and in consideration for the distributions and other benefits provided pursuant to the Plan, the provisions of the Plan shall constitute a good faith compromise of all Claims, Interests, and controversies relating to the contractual, legal, and subordination rights that a Holder of a Claim or Interest may have with respect to any Allowed Claim or Interest or any distribution to be made on account of such Allowed Claim or Interest. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims, Interests, and controversies as well as a finding by the Bankruptcy Court that such compromise or settlement is in the best interests of the Debtors, their Estates, and Holders of Claims and Interests and is fair, equitable, and reasonable. In accordance with the provisions of the Plan, pursuant to Bankruptcy Rule 9019, (with respect to the parties that entered into the Restructuring Support Agreement), without any further notice to or action, order, or approval of the Bankruptcy Court, after the Effective Date, the Reorganized Debtors may compromise and settle Claims against the Debtors and their Estates and Causes of Action against other Entities.
B. Releases by the Debtors
NOTWITHSTANDING ANYTHING CONTAINED IN THE PLAN TO THE CONTRARY, PURSUANT TO SECTION 1123(B) OF THE BANKRUPTCY CODE, FOR GOOD AND VALUABLE CONSIDERATION, ON AND AFTER THE EFFECTIVE DATE, EACH RELEASED PARTY IS DEEMED RELEASED AND DISCHARGED BY THE DEBTORS, THE REORGANIZED DEBTORS, AND THEIR ESTATES FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION, WHETHER KNOWN OR UNKNOWN, INCLUDING ANY DERIVATIVE CLAIMS, ASSERTED ON BEHALF OF THE DEBTORS, THAT THE DEBTORS, THE REORGANIZED DEBTORS, OR THEIR ESTATES WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT IN THEIR OWN RIGHT (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR ON BEHALF OF THE HOLDER OF ANY CLAIM AGAINST, OR INTEREST IN, A DEBTOR OR OTHER ENTITYNON-DEBTOR AFFILIATE, BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE DEBTORS (INCLUDING THE MANAGEMENT, OWNERSHIP, OR OPERATION THEREOF, OR OTHERWISE), ANY SECURITIES ISSUED BY THE DEBTORS AND THE OWNERSHIP THEREOF, THE DEBTORS’ IN- OR OUT-OF-COURT RESTRUCTURING EFFORTS, ANY AVOIDANCE ACTIONS, (BUT EXCLUDING AVOIDANCE ACTIONS BROUGHT AS COUNTERCLAIMS OR DEFENSES TO CLAIMS ASSERTED AGAINST THE DEBTORS BY PARTIES OTHER THAN THE RELEASING PARTIES), INTERCOMPANY
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TRANSACTIONS, THE CHAPTER 11 CASES, THE FORMULATION, PREPARATION, DISSEMINATION, NEGOTIATION, OR FILING OF THE RESTRUCTURING SUPPORT AGREEMENT, THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE DIP FACILITIES DOCUMENTS, THE EXIT FACILITIES, THE EXIT FACILITIES DOCUMENTS, THE ALTERNATE TERM EXIT FACILITY AND THE ALTERNATE TERM EXIT FACILITY DOCUMENTS (AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, OR ANY RESTRUCTURING TRANSACTION, CONTRACT, INSTRUMENT, RELEASE, OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN CONNECTION WITH THE RESTRUCTURING SUPPORT AGREEMENT, THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE EXIT FACILITIES, THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, THE CHAPTER 11 CASES, THE FILING OF THE CHAPTER 11 CASES, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF THE DIP FACILITIES, THE PURSUIT OF THE EXIT FACILITIES AND THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND IMPLEMENTATION OF THE PLAN, INCLUDING THE ISSUANCE OR DISTRIBUTION OF SECURITIES PURSUANT TO THE PLAN, OR THE DISTRIBUTION OF PROPERTY UNDER THE PLAN OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE RELEASES SET FORTH ABOVE DO NOT RELEASE (A) ANY POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY OR ENTITY UNDER THE PLAN, ANY RESTRUCTURING TRANSACTION, OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT (INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN OR (B) ANY INDIVIDUAL OR EXCULPATED PARTY (WHETHER OR NOT AN INDIVIDUAL) FROM ANY CLAIM OR CAUSES OF ACTION RELATED TO AN ACT OR OMISSION THAT IS DETERMINED IN A FINAL ORDER BY A COURT OF COMPETENT JURISDICTION TO HAVE CONSTITUTED FELONY CRIMINAL CONDUCT, ACTUAL INTENTIONAL FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE OF SUCH RELEASED PARTY OR EXCULPATED PARTY.
ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019, (WITH RESPECT TO THE PARTIES THAT ENTERED INTO THE RESTRUCTURING SUPPORT AGREEMENT), OF THE DEBTOR RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND DEFINITIONS CONTAINED IN THE PLAN, AND FURTHER, SHALL CONSTITUTE THE BANKRUPTCY COURT’S FINDING THAT THE DEBTOR RELEASE IS: (A) IN EXCHANGE FOR THE GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASED PARTIES, INCLUDING, WITHOUT LIMITATION, THE RELEASED PARTIES’ CONTRIBUTIONS TO FACILITATING THE RESTRUCTURING AND IMPLEMENTING THE PLAN; (B) A GOOD FAITH SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE DEBTOR RELEASE; (C) IN THE BEST INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS AND INTERESTS; (D) FAIR, EQUITABLE, AND REASONABLE; (E) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING; AND (F) A BAR TO ANY OF THE DEBTORS, THE REORGANIZED DEBTORS, OR THE DEBTORS’ ESTATES ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT TO THE DEBTOR RELEASE.
C. Releases by the Releasing Parties
NOTWITHSTANDING ANYTHING CONTAINED IN THE PLAN TO THE CONTRARY, AS OF THE EFFECTIVE DATE, EACH RELEASING PARTY IS DEEMED TO HAVE RELEASED AND DISCHARGED EACH DEBTOR, REORGANIZED DEBTOR, AND RELEASED PARTY FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION, WHETHER KNOWN OR UNKNOWN, INCLUDING ANY DERIVATIVE CLAIMS, ASSERTED ON BEHALF OF THE DEBTORS, THAT SUCH ENTITY WOULD HAVE BEEN LEGALLY ENTITLED TO ASSERT (WHETHER INDIVIDUALLY OR COLLECTIVELY), BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE DEBTORS (INCLUDING THE MANAGEMENT, OWNERSHIP OR OPERATION THEREOF, OR OTHERWISE), ANY SECURITIES ISSUED BY THE DEBTORS AND THE OWNERSHIP THEREOF, THE DEBTORS’ IN- OR OUT-OF-COURT RESTRUCTURING EFFORTS, ANY AVOIDANCE ACTIONS,
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INTERCOMPANY TRANSACTIONS, THE CHAPTER 11 CASES, THE FORMULATION, PREPARATION, DISSEMINATION, NEGOTIATION, OR FILING OF THE RESTRUCTURING SUPPORT AGREEMENT, THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE DIP FACILITIES DOCUMENTS, THE EXIT FACILITIES, THE EXIT FACILITIES DOCUMENTS, THE ALTERNATE TERM EXIT FACILITY AND THE ALTERNATE TERM EXIT FACILITY DOCUMENTS (AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, OR ANY RESTRUCTURING TRANSACTION, CONTRACT, INSTRUMENT, RELEASE, OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN CONNECTION WITH THE RESTRUCTURING SUPPORT AGREEMENT, THE DISCLOSURE STATEMENT, THE DIP FACILITIES, THE EXIT FACILITIES, THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PLAN, THE PLAN SUPPLEMENT, THE CHAPTER 11 CASES, THE FILING OF THE CHAPTER 11 CASES, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF THE DIP FACILITIES, THE PURSUIT OF THE EXIT FACILITIES AND THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND IMPLEMENTATION OF THE PLAN, INCLUDING THE ISSUANCE OR DISTRIBUTION OF SECURITIES PURSUANT TO THE PLAN, OR THE DISTRIBUTION OF PROPERTY UNDER THE PLAN OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE RELEASES SET FORTH ABOVE DO NOT RELEASE (A) ANY POST-EFFECTIVE DATE OBLIGATIONS OF ANY PARTY OR ENTITY UNDER THE PLAN, ANY RESTRUCTURING TRANSACTION, OR ANY DOCUMENT, INSTRUMENT, OR AGREEMENT (INCLUDING THOSE SET FORTH IN THE PLAN SUPPLEMENT) EXECUTED TO IMPLEMENT THE PLAN OR (B) ANY INDIVIDUAL OR EXCULPATED PARTY (WHETHER OR NOT AN INDIVIDUAL) FROM ANY CLAIM OR CAUSES OF ACTION RELATED TO AN ACT OR OMISSION THAT IS DETERMINED IN A FINAL ORDER BY A COURT OF COMPETENT JURISDICTION TO HAVE CONSTITUTED FELONY CRIMINAL CONDUCT, ACTUAL INTENTIONAL FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE OF SUCH RELEASED PARTY OR EXCULPATED PARTY.
ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL, PURSUANT TO BANKRUPTCY RULE 9019, (WITH RESPECT TO THE PARTIES THAT ENTERED INTO THE RESTRUCTURING SUPPORT AGREEMENT), OF THE THIRD-PARTY RELEASE, WHICH INCLUDES BY REFERENCE EACH OF THE RELATED PROVISIONS AND DEFINITIONS CONTAINED HEREIN, AND, FURTHER, SHALL CONSTITUTE THE BANKRUPTCY COURT’S FINDING THAT THE THIRD-PARTY RELEASE IS: (A) CONSENSUAL; (B) ESSENTIAL TO THE CONFIRMATION OF THE PLAN; (C) GIVEN IN EXCHANGE FOR THE GOOD AND VALUABLE CONSIDERATION PROVIDED BY THE RELEASED PARTIES; (D) A GOOD FAITH SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE THIRD-PARTY RELEASE; (E) IN THE BEST INTERESTS OF THE DEBTORS AND THEIR ESTATES; (F) FAIR, EQUITABLE, AND REASONABLE; (G) GIVEN AND MADE AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING; AND (H) A BAR TO ANY OF THE RELEASING PARTIES ASSERTING ANY CLAIM OR CAUSE OF ACTION RELEASED PURSUANT TO THE THIRD-PARTY RELEASE.
D. Exculpation
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE PLAN, NO EXCULPATED PARTY SHALL HAVE OR INCUR LIABILITY FOR AND EACH EXCULPATED PARTY IS RELEASED AND EXCULPATED FROM ANY CAUSE OF ACTION FOR ANY CLAIM RELATED TO ANY ACT OR OMISSION IN CONNECTION WITH, RELATING TO, OR ARISING OUT OF, THE CHAPTER 11 CASES, THE FORMULATION, PREPARATION, DISSEMINATION, NEGOTIATION, OR FILING OF THE RESTRUCTURING SUPPORT AGREEMENT AND RELATED PREPETITION TRANSACTIONS, THE DIP FACILITIES, THE DIP FACILITIES DOCUMENTS,, THE EXIT FACILITIES, THE EXIT FACILITIES DOCUMENTS, THE ALTERNATE TERM EXIT FACILITY AND THE ALTERNATE TERM EXIT FACILITY DOCUMENTS (AS APPLICABLE), THE DISCLOSURE STATEMENT, THE PLAN, THE PLAN SUPPLEMENT, OR ANY RESTRUCTURING TRANSACTION, CONTRACT, INSTRUMENT, RELEASE, OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED INTO IN CONNECTION WITH THE RESTRUCTURING SUPPORT AGREEMENT, THE DIP FACILITIES, THE EXIT FACILITIES, THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE DISCLOSURE
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STATEMENT, THE PLAN, THE PLAN SUPPLEMENT, THE CHAPTER 11 CASES, THE FILING OF THE CHAPTER 11 CASES, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF THE DIP FACILITIES, THE PURSUIT OF THE EXIT FACILITIES AND THE ALTERNATE TERM EXIT FACILITY (AS APPLICABLE), THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION AND IMPLEMENTATION OF THE PLAN, INCLUDING THE ISSUANCE OR DISTRIBUTION OF SECURITIES PURSUANT TO THE PLAN, OR THE DISTRIBUTION OF PROPERTY UNDER THE PLAN OR ANY OTHER RELATED AGREEMENT, OR UPON ANY OTHER RELATED ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE TAKING PLACE ON OR BEFORE THE EFFECTIVE DATE, EXCEPT FOR CLAIMS RELATED TO ANY ACT OR OMISSION THAT IS DETERMINED IN A FINAL ORDER BY A COURT OF COMPETENT JURISDICTION TO HAVE CONSTITUTED FELONY CRIMINAL CONDUCT, ACTUAL INTENTIONAL FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE OF SUCH PERSON, BUT IN ALL RESPECTS SUCH ENTITIES SHALL BE ENTITLED TO REASONABLY RELY UPON THE ADVICE OF COUNSEL WITH RESPECT TO THEIR DUTIES AND RESPONSIBILITIES PURSUANT TO THE PLAN.
THE EXCULPATED PARTIES HAVE, AND UPON CONFIRMATION OF THE PLAN SHALL BE DEEMED TO HAVE, PARTICIPATED IN GOOD FAITH AND IN COMPLIANCE WITH THE APPLICABLE LAWS WITH REGARD TO THE SOLICITATION OF VOTES AND DISTRIBUTION OF CONSIDERATION PURSUANT TO THE PLAN AND, THEREFORE, ARE NOT, AND ON ACCOUNT OF SUCH DISTRIBUTIONS SHALL NOT BE, LIABLE AT ANY TIME FOR THE VIOLATION OF ANY APPLICABLE LAW, RULE, OR REGULATION GOVERNING THE SOLICITATION OF ACCEPTANCES OR REJECTIONS OF THE PLAN OR SUCH DISTRIBUTIONS MADE PURSUANT TO THE PLAN.
E. Injunction
EXCEPT AS OTHERWISE PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER OR FOR OBLIGATIONS ISSUED OR REQUIRED TO BE PAID PURSUANT TO THE PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES WHO HAVE HELD, HOLD, OR MAY HOLD CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES THAT: (A) ARE SUBJECT TO COMPROMISE AND SETTLEMENT PURSUANT TO THE TERMS OF THE PLAN; (B) HAVE BEEN RELEASED PURSUANT TO ARTICLE IX.B OF THIS PLAN; (C) HAVE BEEN RELEASED PURSUANT TO ARTICLE IX.C OF THIS PLAN, (D) ARE SUBJECT TO EXCULPATION PURSUANT TO ARTICLE IX.D OF THIS PLAN (BUT ONLY TO THE EXTENT OF THE EXCULPATION PROVIDED IN ARTICLE IX.D OF THIS PLAN), OR (E) ARE OTHERWISE DISCHARGED, SATISFIED, STAYED, RELEASED, OR TERMINATED PURSUANT TO THE TERMS OF THE PLAN, ARE PERMANENTLY ENJOINED AND PRECLUDED, FROM AND AFTER THE EFFECTIVE DATE, FROM COMMENCING OR CONTINUING IN ANY MANNER, ANY ACTION OR OTHER PROCEEDING, INCLUDING ON ACCOUNT OF ANY CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES THAT HAVE BEEN COMPROMISED OR SETTLED AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, OR ANY ENTITY SO RELEASED OR EXCULPATED (OR THE PROPERTY OR ESTATE OF ANY ENTITY, DIRECTLY OR INDIRECTLY, SO RELEASED OR EXCULPATED) ON ACCOUNT OF, OR IN CONNECTION WITH OR WITH RESPECT TO, ANY DISCHARGED, RELEASED, SETTLED, COMPROMISED, OR EXCULPATED CLAIMS, INTERESTS, CAUSES OF ACTION, OR LIABILITIES.
F. Setoffs and Recoupment
Except as otherwise provided herein, each Reorganized Debtor pursuant to the Bankruptcy Code (including section 553 of the Bankruptcy Code), applicable non-bankruptcy law, or as may be agreed to by the Holder of an Allowed Claim may setoff or recoup against any Allowed Claim and the distributions to be made pursuant to the Plan on account of such Allowed Claim, any Claims, rights, and Causes of Action of any nature that the applicable Debtor or Reorganized Debtor may hold against the Holder of such Allowed Claim, to the extent such Claims, rights, or Causes of Action have not been otherwise compromised or settled on or prior to the Effective Date (whether pursuant to the Plan, a Final Order or otherwise); provided that neither the failure to effect such a setoff or recoupment nor the allowance of any Claim pursuant to the Plan shall constitute a waiver or release by such Reorganized Debtor of any such Claims, rights, and Causes of Action.
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G. Release of Liens
Except as otherwise provided herein or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to the Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released and discharged, and all of the right, title, and interest of any Holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Reorganized Debtor and its successors and assigns.
To the extent that any Holder of a Secured Claim has had such Claim satisfied or discharged in full pursuant to the Plan or any agent for such Holder has filed or recorded publicly any Liens and/or security interests to secure such Holder’s Secured Claim, as soon as practicable on or after the Effective Date, such Holder (or the agent for such Holder) shall take any and all steps requested by the Debtors, the Reorganized Debtors, or any administrative agent under the Exit Facilities Documents and Alternate Term Exit Facility Documents (as applicable) that are necessary or desirable to record or effectuate the cancellation and/or extinguishment of such Liens and/or security interests, including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make any such filings or recordings on such Holder’s behalf.
Article X.
RETENTION OF JURISDICTION
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:
1. Allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests;
2. Decide and resolve all matters related to the granting and denying, in whole or in part, any applications for allowance of compensation or reimbursement of expenses to Retained Professionals authorized pursuant to the Bankruptcy Code or the Plan;
3. Resolve any matters related to: (a) the assumption or assumption and assignment of any Executory Contract or Unexpired Lease to which a Debtor is party or with respect to which a Debtor may be liable and to hear, determine, and, if necessary, liquidate, any Cure or Cure Claims arising therefrom, including Cure or Cure Claims pursuant to section 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; and (c) any dispute regarding whether a contract or lease is or was executory or expired;
4. Ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the provisions of the Plan;
5. Adjudicate, decide or resolve any motions, adversary proceedings, contested, or litigated matters, and any other matters, and grant or deny any applications involving a Debtor that may be pending on the Effective Date;
6. Adjudicate, decide, or resolve any and all matters related to section 1141 of the Bankruptcy Code;
7. Resolve any cases, controversies, suits, or disputes that may arise in connection with General Unsecured Claims, including establishment of a bar date, related notice, claim objections, allowance, disallowance, estimation and distribution;
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8. Enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan or the Disclosure Statement;
9. Enter and enforce any order for the sale of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code;
10. Resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the interpretation or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;
11. Issue injunctions, enter and implement other orders or take such other actions as may be necessary or appropriate to restrain interference by any Entity with enforcement of the Plan;
12. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, and other provisions contained in the Plan and enter such orders as may be necessary or appropriate to implement such releases, injunctions, and other provisions;
13. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by any Holder of a Claim or Interest for amounts not timely repaid;
14. Enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;
15. Determine any other matters that may arise in connection with or relate to the Plan, the Disclosure Statement, or the Confirmation Order;
16. Enter an order or final decree concluding or closing the Chapter 11 Cases;
17. Adjudicate any and all disputes arising from or relating to distributions under the Plan;
18. Consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;
19. Determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code;
20. Hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan or the Confirmation Order;
21. Hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
22. Hear and determine all disputes involving the existence, nature, or scope of the Debtors’ discharge, including any dispute relating to any liability arising out of the termination of employment or the termination of any employee or retiree benefit program, regardless of whether such termination occurred prior to or after the Effective Date;
23. Enforce all orders previously entered by the Bankruptcy Court; and
24. Hear any other matter not inconsistent with the Bankruptcy Code.
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Article XI.
MODIFICATION, REVOCATION, OR WITHDRAWAL OF PLAN
A. Modification of Plan
Subject to the limitations contained in the Plan, the Debtors reserve the right, in accordance with the Bankruptcy Code, the Bankruptcy Rules, and the Restructuring Support Agreement (1) to amend or modify the Plan prior to the entry of the Confirmation Order, including amendments or modifications to satisfy section 1129(b) of the Bankruptcy Code, and (2) after the entry of the Confirmation Order, the Debtors or the Reorganized Debtors, as the case may be, may, upon order of the Bankruptcy Court, amend or modify the Plan, in accordance with section 1127(b) of the Bankruptcy Code and the Restructuring Support Agreement, or remedy any defect or omission or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the Plan. All modifications and amendments to the Plan made prior to confirmation shall be in compliance with section 1127(a) of the Bankruptcy Code and Bankruptcy Rule 3019(a), and all modifications and amendments made after confirmation shall be in compliance with section 1127(b) of the Bankruptcy Code and Bankruptcy Rule 3019(b).
B. Effect of Confirmation on Modifications
Entry of the Confirmation Order shall mean that all modifications or amendments to the Plan since the solicitation thereof are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or re-solicitation under Bankruptcy Rule 3019.
C. Revocation of Plan
Subject to the conditions to the Effective Date, the Debtors reserve the right, subject to the terms of the Restructuring Support Agreement, to revoke or withdraw the Plan prior to the entry of the Confirmation Order and to file subsequent plans of reorganization. If the Debtors revoke or withdraw the Plan with the prior reasonable consent of the Required Parties, if entry of the Confirmation Order or the Effective Date does not occur, or if the Restructuring Support Agreement terminates in accordance with its terms, then (1) the Plan shall be null and void in all respects, (2) any settlement or compromise embodied in the Plan, assumption of executory contracts or leases effected by the Plan, and any document or agreement executed pursuant hereto shall be deemed null and void, and (3) nothing contained in the Plan shall (a) constitute a waiver or release of any claims by or against or any Equity Interests in such Debtor or any other Entity, (b) prejudice in any manner the rights of the Debtors or any other Entity, or (c) constitute an admission of any sort by the Debtors or any other Entity.
Article XII.
MISCELLANEOUS PROVISIONS
A. Immediate Binding Effect
Notwithstanding Bankruptcy Rules 3020(e), 6004(g), or 7062 or otherwise, upon the occurrence of the Effective Date, the terms of the Plan and the documents and instruments contained in the Plan Supplement shall be immediately effective and enforceable and deemed binding upon the Debtors, the Reorganized Debtors, and any and all Holders of Claims and Interests (irrespective of whether such Holders of Claims or Interests are deemed to have accepted the Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Plan, each Entity acquiring property under the Plan and any and all non-Debtor parties to Executory Contracts and Unexpired Leases. The Confirmation Order shall contain a waiver of any stay of enforcement otherwise applicable, including pursuant to Bankruptcy Rule 3020(e), 6004(g), and 7062.
B. Additional Documents
On or before the Effective Date and in accordance with the Restructuring Support Agreement and Article I.E of this Plan, the Debtors may file with the Bankruptcy Court such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Debtors or Reorganized Debtors, as applicable, and all Holders of Claims or Interests receiving distributions pursuant to the Plan
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and all other parties in interest shall, from time to time, prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan or the Confirmation Order.
C. Reservation of Rights
The Plan shall have no force or effect unless and until the Bankruptcy Court enters the Confirmation Order. None of the filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by any Debtor with respect to the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of any Debtor with respect to the Holders of Claims or Interests prior to the Effective Date.
D. Successors and Assigns
The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, affiliate, officer, director, agent, representative, attorney, beneficiaries or guardian, if any, of each Entity.
E. Service of Documents
Any pleading, notice, or other document required by the Plan to be served on or delivered to the Debtors or Reorganized Debtors, as applicable, shall also be served on or delivered to:
Debtors Proposed Co-Counsel to the Debtors
APC Automotive Technologies Intermediate Holdings LLC 10822 West Toller Drive Suite 370 Littleton, Colorado 80127 Attn.: Patricia Warfield, Marc Weinsweig, and Chris Walling
Kirkland & Ellis LLP 601 Lexington Avenue New York, New York 10022 Attn.: Jonathan S. Henes, P.C., George Klidonas, and Neda Davanipour Klehr Harrison Harvey Branzburg LLP 919 North Market Street Wilmington, Delaware 19801 Attn.: Morton R. Branzburg and Domenic E. Pacitti
United States Trustee Counsel to the Term Loan Lender Group
Office of the United States Trustee for the District of Delaware 844 King Street, Suite 2207 Wilmington, Delaware 19801
King & Spalding LLP 1180 Peachtree Street, NE Atlanta, Georgia 30309 Attn.: W. Austin Jowers With a copy to: King & Spalding LLP 1185 Avenue of the Americas New York, New York 10036 Attn.: Peter Montoni and Michael R. Handler
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Counsel to the ABL Lenders Counsel to the Consenting Sponsors
Greenberg Traurig, LLP Terminus 200 3333 Piedmont Road NE Suite 2500 Atlanta, GA 30305 Attn: David Kurzweil, Esq., John J. Dyer, Esq., and Victoria Bartlett, Esq.
White & Case LLP 1221 Avenue of the Americas New York, New York 10020-1095 Attn.: Thomas Lauria, John Reiss, David Turetsky, and Luke Laumann Honigman LLP 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226-3506 Attn.: Joseph R. Sgroi Goodwin Procter LLP New York Times Building 620 8th Avenue New York, New York 10018 Attn.: Bruce Rader and Michael Goldstein
After the Effective Date, the Debtors or Reorganized Debtors, as applicable, have authority to send a notice
to Entities that, to continue to receive documents pursuant to Bankruptcy Rule 2002, they must file a renewed request to receive documents pursuant to Bankruptcy Rule 2002. After the Effective Date, the Debtors are authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have filed such renewed requests.
In accordance with Bankruptcy Rules 2002 and 3020(e), within fourteen (14) calendar days of the date of entry of the Confirmation Order, the Debtors shall serve the Notice of Confirmation by United States mail, first class postage prepaid, by hand, or by overnight courier service to all parties served with the Confirmation Hearing notice; provided that no notice or service of any kind shall be required to be mailed or made upon any Entity to whom the Debtors mailed a Confirmation Hearing notice but received such notice returned marked “undeliverable as addressed,” “moved, left no forwarding address” or “forwarding order expired,” or similar reason unless the Debtors or Reorganized Debtors, as applicable, have been informed in writing by such Entity or are otherwise aware of that Entity’s new address. To supplement the notice described in the preceding sentence, within (21) twenty-one calendar days of the date of the Confirmation Order, the Debtors or Reorganized Debtors, as applicable, shall publish the Notice of Confirmation once in the The New York Times. Mailing and publication of the Notice of Confirmation in the time and manner set forth in this paragraph shall be good and sufficient notice under the particular circumstances and in accordance with the requirements of Bankruptcy Rules 2002 and 3020(e), and no further notice is necessary.
F. Term of Injunctions or Stays
Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
G. Entire Agreement
On the Effective Date, the Plan and the Plan Supplement supersede all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into the Plan.
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H. Plan Supplement Exhibits
All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full in the Plan. Copies of such exhibits and documents shall be made available upon written request to the Debtors’ proposed counsel at the address above or by downloading such exhibits and documents from https://cases.stretto.com/APC or the Bankruptcy Court’s website at www.nysbdeb.uscourts.gov. Unless otherwise ordered by the Bankruptcy Court, to the extent any exhibit or document in the Plan Supplement is inconsistent with the terms of any part of the Plan that does not constitute the Plan Supplement, such part of the Plan that does not constitute the Plan Supplement shall control. The documents considered in the Plan Supplement are an integral part of the Plan and shall be deemed approved by the Bankruptcy Court pursuant to the Confirmation Order.
I. Governing Law
Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of the State of Delaware, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements, documents, instruments, or contracts executed or entered into in connection with the Plan (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control), and corporate governance matters; provided that corporate governance matters relating to Debtors or Reorganized Debtors, as applicable, not incorporated in Delaware shall be governed by the laws of the state of incorporation of the applicable Debtor or Reorganized Debtor, as applicable.
J. Nonseverability of Plan Provisions upon Confirmation
If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted; provided that any such alteration or interpretation shall be reasonably acceptable to the Required Parties and otherwise consistent with Article I.E of this Plan. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is the following: (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 Reorganized Debtors, as applicable; and (c) nonseverable and mutually dependent.
K. Closing of Chapter 11 Cases
The Reorganized Debtors shall promptly file, after the full administration of the Chapter 11 Cases, with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court to close the Chapter 11 Cases.
L. Section 1125(e) Good Faith Compliance
The Debtors, the Reorganized Debtors, the Agents, the Secured Lenders, the DIP Lenders, the Consenting Sponsors, and each of their respective Representatives shall be deemed to have acted in “good faith” under section 1125(e) of the Bankruptcy Code.
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[Signature Page to Plan]
Respectfully submitted, as of the date first set forth above,
APC Automotive Technologies Intermediate Holdings, LLC (on behalf of itself and all other Debtors)
By: /s/ Marc Weinsweig Name: Marc Weinsweig Title: Interim Chief Financial Officer
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