NOT A SOLICITATION OF ACCEPTANCE OR...

NOT A SOLICITATION OF ACCEPTANCE OR REJECTION OF THE PLAN.

ACCEPTANCES OR REJECTIONS MAY NOT BE SOLICITED UNTIL THE

BANKRUPTCY COURT HAS APPROVED THIS DISCLOSURE STATEMENT. THIS

DISCLOSURE STATEMENT IS BEING SUBMITTED FOR APPROVAL BUT HAS NOT

YET BEEN APPROVED BY THE COURT.

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

)

In re: ) Chapter 11

)

AGERA ENERGY LLC, et al.,1 )

)

Case No. 19-23802 (RDD)

Debtors.

)

)

(Jointly Administered)

SECOND AMENDED DISCLOSURE STATEMENT FOR SECOND AMENDED JOINT

CHAPTER 11 PLAN OF LIQUIDATION OF AGERA ENERGY LLC, ET AL.

IMPORTANT DATES

Date by which Objections to Confirmation

of the Plan Must be Filed and Served:

June 9, 2020 at 4:00 p.m.

Date by which Ballots Must be Received: June 9, 2020 at 4:00 p.m.

Hearing on Confirmation of the Plan: June 12, 2020 at 2:00 p.m.

MCDERMOTT WILL & EMERY LLP

Timothy W. Walsh

Darren Azman

Ravi Vohra

Natalie Rowles

340 Madison Avenue

New York, New York 10173

Telephone: (212) 547-5615

Facsimile: (212) 547-5444

Counsel to the Debtors and Debtors in Possession

Dated: May 9, 2020

New York, New York

1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera

Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988);

Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate

headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.

19-23802-rdd Doc 678 Filed 05/09/20 Entered 05/09/20 16:10:19 Main Document Pg 1 of 116

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TABLE OF CONTENTS

I. PURPOSES AND LIMITATIONS OF DISCLOSURE STATEMENT .............................1

A. Purpose of Disclosure Statement .............................................................................1

B. Definitions and Exhibits ..........................................................................................1

C. Enclosures ................................................................................................................2

D. Representations and Limitations ..............................................................................2

E. Important Dates ........................................................................................................3

F. Solicitation Procedures ............................................................................................4

G. Recommendation .....................................................................................................5

H. Inquiries ...................................................................................................................5

II. BACKGROUND .................................................................................................................5

A. Nature of the Debtors’ Business ..............................................................................5

B. Organizational Structure ..........................................................................................5

C. Prepetition Capital Structure ....................................................................................6

D. Circumstances Leading to Filing .............................................................................8

E. Potential Estate Causes of Action ..........................................................................12

F. The Bankruptcy Cases ...........................................................................................12

III. SIGNIFICANT EVENTS DURING THE CHAPTER 11 CASE .....................................12

A. First Day Pleadings ................................................................................................12

B. Other Significant Pleadings ...................................................................................14

C. Postpetition Financing and Use of Cash Collateral ...............................................14

D. Key Employee Retention Plan and Key Employee Incentive Plan .......................15

E. The Appointment of the Committee ......................................................................15

F. Retention of Professionals; Appointment of Claims and Noticing

Agent ......................................................................................................................15


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G. Schedules of Assets and Liabilities, Statements of Financial

Affairs ....................................................................................................................16

H. Bar Date for Filing of Claims Arising Prior to the Petition Date ..........................16

I. Sale of the Agera Opco Entities’ Assets ................................................................17

J. Challenge Period Extensions/Standing Motion .....................................................18

K. Plan Support Agreement ........................................................................................19

L. Massachusetts DOER Administrative Expense Claim ..........................................19

M. Objections to Priority Claims.................................................................................19

N. Sunwave Adversary Proceeding ............................................................................20

IV. SUMMARY OF THE PLAN OF LIQUIDATION ...........................................................20

A. General Plan Objectives .........................................................................................20

B. Provisions Governing Order and Method for Distributions Under

the Plan...................................................................................................................21

C. Classes of Claims ...................................................................................................21

i. DIP Financing Claims ................................................................................22

ii. Administrative Expense Claims .................................................................22

iii. Professional Fee Claims .............................................................................22

iv. Priority Tax Claims ....................................................................................23

v. Non-Tax Priority Claims............................................................................23

vi. Intercompany Claims .................................................................................23

vii. Statutory Fees.............................................................................................23

viii. Class 1A (Allowed Other Secured Claims) ...............................................24

ix. Class 1B (Allowed Prepetition BP Secured Claim) ..................................24

x. Class 2 (Allowed General Unsecured Claims) ..........................................25


iv

xi. Class 3 (Allowed BP Deficiency Claim and Allowed BP

Subordinated Claim) ..................................................................................25

xii. Class 4 (Allowed Prepetition CBLIC Claims) ...........................................25

xiii. Class 5 (Interests) .......................................................................................26

V. MEANS OF IMPLEMENTING THE PLAN ....................................................................26

A. Joint Chapter 11 Plan .............................................................................................26

B. Substantive Consolidation of Claims Against Debtors for Plan

Purposes Only ........................................................................................................26

C. Plan Funding Mechanism ......................................................................................27

D. Formation of the Liquidation Trust........................................................................27

E. Establishment of Reserves and Escrow Accounts .................................................27

F. Powers and Duties of the Liquidation Trustee .......................................................29

G. Appointment of the Liquidation Trustee................................................................31

H. Issuance of General Unsecured Creditor Interests .................................................31

I. Liquidation Trustee Reporting ...............................................................................31

J. Fees and Expenses of the Liquidation Trustee ......................................................31

K. Resignation or Removal of Liquidation Trustee ....................................................32

L. Reliance on Documents .........................................................................................32

M. Corporate Action ....................................................................................................32

N. Liquidation and Dissolution of Debtors .................................................................32

O. Dissolution of Creditors’ Committee .....................................................................33

P. Closing of the Bankruptcy Cases ...........................................................................33

Q. Plan Distributions...................................................................................................33

R. Preservation and Abandonment of Records ...........................................................33

S. General Disposition of Assets ................................................................................33


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T. Final Administrative Expense Claims Bar Date ....................................................34

U. Deadline for Filing Applications for Professional Fee Claims ..............................34

V. Execution of Documents to Effectuate Plan ..........................................................35

W. Disallowance of Claims Without Further Order of the Court................................35

X. Post-Effective Date Reports and Fees....................................................................35

Y. Cancellation of Notes, Instruments, Certificates, and Other

Documents .............................................................................................................35

Z. Insurance Preservation ...........................................................................................36

AA. Preservation of Causes of Action ...........................................................................36

BB. Section 1146 Exemption from Certain Taxes and Fees .........................................36

CC. Withdrawal of the Standing Motion ......................................................................36

DD. Settlement Pursuant to Bankruptcy Rule 9019 ......................................................36

EE. Return of Deposits .................................................................................................37

VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES ..........37

VII. CONDITIONS PRECEDENT; CONFIRMATION AND EFFECTIVE DATE ...............37

A. Conditions Precedent to Plan Confirmation ..........................................................37

B. Conditions Precedent to the Effective Date ...........................................................38

C. Waiver of Conditions Precedent ............................................................................38

VIII. INJUNCTIONS; STAYS; RELEASE; EXCULPATIONS ...............................................39

A. General Injunctions ................................................................................................39

i. Injunctions Against Interference with Consummation or

Implementation of Plan ..............................................................................39

ii. Plan Injunction ...........................................................................................39

iii. No Bar To Claims Against Third Parties ...................................................39

B. All Distributions Received in Full and Final Satisfaction .....................................39


vi

C. No Modification of Res Judicata Effect.................................................................39

D. Exculpation for Debtors, Committee, and Estate Professionals ............................40

E. Exculpation for Liquidation Trustee ......................................................................40

F. Releases by the Debtors .........................................................................................40

G. Releases by Releasing Parties ................................................................................41

IX. PROVISIONS GOVERNING DISTRIBUTIONS ............................................................42

A. Payments in U.S. Dollars .......................................................................................42

B. Distributions Only on Business Days ....................................................................42

C. Unclaimed Distributions ........................................................................................42

D. Timing of Distributions Generally .........................................................................43

E. Timing of Distributions on Disputed Claims Subsequently

Allowed ..................................................................................................................43

F. No Payment or Distribution of Disputed Claims ...................................................43

G. Disputed Distribution .............................................................................................43

H. Transmittal of Payments and Notices ....................................................................43

I. Record Date for Distributions ................................................................................44

J. Claims Administration Responsibility ...................................................................44

K. Disputed Claims. ....................................................................................................45

L. No Payments of Fractional Cents or Distributions of Less Than

Thirty-Five Dollars ................................................................................................46

M. Setoff and Recoupment ..........................................................................................46

N. Payment of Taxes on Distributions Received Pursuant to the Plan .......................46

O. Compliance With Tax Withholding and Reporting Requirements ........................47

X. PLAN INTERPRETATION, CONFIRMATION, AND VOTING ..................................47


vii

A. Procedures Regarding Objections to Designation of Classes as

Impaired or Unimpaired .........................................................................................47

B. Withdrawal and Modification of Plan....................................................................47

C. Governing Law ......................................................................................................47

D. Voting of Claims ....................................................................................................47

E. Acceptance by Impaired Class ...............................................................................47

F. Presumed Acceptances of Plan ..............................................................................48

G. Presumed Rejections of Plan .................................................................................48

H. Cram Down ............................................................................................................48

XI. RETENTION OF JURISDICTION BY BANKRUPTCY COURT ..................................49

XII. CERTAIN TAX CONSEQUENCES OF THE PLAN ......................................................50

A. General ...................................................................................................................50

B. Tax Consequences of Payment of Allowed Claims Pursuant to

Plan Generally ........................................................................................................51

(i) Recognition of Gain or Loss ......................................................................51

(ii) Bad Debt or Worthless Security Deduction ...............................................51

XIII. CONFIRMATION OF PLAN – REQUIREMENTS ........................................................52

A. Absolute Priority Rule ...........................................................................................52

B. Best Interest of Creditors Test; Liquidation Analysis............................................52

XIV. PROCEDURES FOR VOTING ON PLAN ......................................................................53

XV. CONFIRMATION HEARING ..........................................................................................55

XVI. RECOMMENDATION .....................................................................................................56


PLEASE READ THIS DISCLOSURE STATEMENT CAREFULLY. THIS

DISCLOSURE STATEMENT CONTAINS INFORMATION THAT MAY BEAR UPON

YOUR DECISION TO ACCEPT OR REJECT THE PLAN, WHICH IS ENCLOSED

WITH THIS DISCLOSURE STATEMENT. THE DEBTORS BELIEVE THAT THE

PLAN IS IN THE BEST INTERESTS OF THE DEBTORS AND THEIR CREDITORS

AND PROVIDES THE HIGHEST AND MOST EXPEDITIOUS RECOVERIES TO

HOLDERS OF ALLOWED CLAIMS AGAINST THE DEBTORS.

Agera Energy LLC and its debtor affiliates, as debtors and debtors in possession

(collectively, the “Debtors”), submit this disclosure statement (the “Disclosure Statement”)

pursuant to Bankruptcy Code section 1125 to accompany their Second Amended Joint Chapter

11 Plan of Liquidation of Agera Energy LLC, et al. dated May 9, 2020 (the “Plan”), which has

been filed with the United States Bankruptcy Court for the Southern District of New York (the

“Bankruptcy Court”). A copy of the Plan is annexed as Exhibit A hereto.

I. PURPOSES AND LIMITATIONS OF DISCLOSURE STATEMENT

A. Purpose of Disclosure Statement

The purpose of the Disclosure Statement is to set forth information that (i) summarizes

the Plan and alternatives to the Plan, (ii) advises holders of Claims and Interests of their rights

under the Plan, (iii) assists Creditors entitled to vote in making informed decisions as to whether

they should vote to accept or reject the Plan, and (iv) assists the Bankruptcy Court in determining

whether the Plan complies with the provisions of chapter 11 of the Bankruptcy Code and should

be confirmed.

You are urged to read the Disclosure Statement in order to determine what rights you

may have to vote on or object to the Plan and before making any decision on any such course of

action. Particular attention should be directed to the provisions of the Plan affecting or impairing

your rights as they existed before the institution of the Bankruptcy Cases. Please note, however,

that this Disclosure Statement cannot tell you everything about your rights. For instance, this

Disclosure Statement cannot and does not provide a complete description of the financial status

of the Debtors, all of the applicable provisions of the Bankruptcy Code, or other matters that may

be deemed significant by Creditors and other parties in interest. You are also encouraged to

consult with your lawyers and/or advisors as you review and consider the Disclosure Statement

and the Plan to enable you to obtain more specific advice on how the Plan will affect you.

B. Definitions and Exhibits

Definitions Unless otherwise defined herein, capitalized terms used in this Disclosure

Statement have the meanings ascribed to such terms in the Plan.

Exhibits The following exhibits are annexed hereto and expressly incorporated

herein:

Exhibit A: A copy of the Plan

Exhibit B: Liquidation Analysis


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C. Enclosures

The following materials are included with this Disclosure Statement:

1. A copy of the Plan and a copy of the Liquidation Analysis;

2. A copy of an order approving the Disclosure Statement (the “Disclosure Statement

Order”), which states: (a) the date by which objections to confirmation of the Plan

must be served and filed, (b) the date by which all votes with respect to the Plan must

be cast, (c) the date of the hearing in the Bankruptcy Court to consider confirmation

of the Plan, and (d) other relevant information;

3. A copy of the notice of the deadline for submitting ballots to accept or reject the Plan

and, among other things, the date, time and place of the hearing to consider

confirmation of the Plan and the deadline for filing objections to confirmation of the

Plan;

4. A ballot (and return envelope) for voting to accept or reject the Plan, unless you are

not entitled to vote because you are (i) to receive no Distribution under the Plan and

are deemed to reject the Plan or (ii) not impaired under the Plan and are deemed to

accept the Plan;

5. A notice of non-voting status if you are not impaired under the Plan and are deemed

to accept the Plan or if you are not receiving a Distribution under the Plan and are

deemed to reject the Plan, as applicable; and

6. Internal Revenue Service Form W-9, Request for Taxpayer Identification Number

and Certification.

D. Representations and Limitations

NO PERSON IS AUTHORIZED IN CONNECTION WITH THE PLAN OR THE

SOLICITATION OF VOTES THEREON TO GIVE ANY INFORMATION OR TO

MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS

DISCLOSURE STATEMENT AND THE EXHIBITS ANNEXED HERETO OR

INCORPORATED HEREIN BY REFERENCE OR REFERRED TO HEREIN AND, IF

GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MAY NOT BE

RELIED UPON AS HAVING BEEN AUTHORIZED BY THE DEBTORS.

NO REPRESENTATIONS CONCERNING THE DEBTORS OR THE PLAN ARE

AUTHORIZED OTHER THAN AS SET FORTH HEREIN. ANY REPRESENTATIONS

OR INDUCEMENTS TO SECURE YOUR ACCEPTANCE OF THE PLAN OTHER

THAN AS CONTAINED HEREIN SHOULD NOT BE RELIED UPON BY YOU.

THE INFORMATION CONTAINED HEREIN HAS BEEN PREPARED BY THE

DEBTORS IN GOOD FAITH, BASED UPON UNAUDITED INFORMATION

AVAILABLE TO THE DEBTORS AS OF THE DATE HEREOF. ALTHOUGH THE

DEBTORS HAVE USED THEIR BEST EFFORTS TO ENSURE THAT SUCH

INFORMATION IS ACCURATE, THE INFORMATION CONTAINED HEREIN IS


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UNAUDITED. THE DEBTORS BELIEVE THAT THIS DISCLOSURE STATEMENT

COMPLIES WITH THE REQUIREMENTS OF THE BANKRUPTCY CODE.

THE STATEMENTS CONTAINED IN THIS DISCLOSURE STATEMENT ARE

MADE AS OF THE DATE HEREOF, UNLESS ANOTHER TIME IS SPECIFIED

HEREIN, AND DELIVERY OF THIS DISCLOSURE STATEMENT SHALL NOT

CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE

FACTS SET FORTH HEREIN SINCE THE DATE OF THIS DISCLOSURE

STATEMENT AND/OR THE DATE THAT THE MATERIALS RELIED UPON IN

PREPARATION OF THIS DISCLOSURE STATEMENT WERE COMPILED.

THE DISCLOSURE STATEMENT MAY NOT BE RELIED ON FOR ANY

PURPOSE OTHER THAN TO DETERMINE HOW TO VOTE ON THE PLAN, AND

NOTHING CONTAINED HEREIN SHALL CONSTITUTE AN ADMISSION OF ANY

FACT OR LIABILITY BY ANY PARTY, OR BE ADMISSIBLE IN ANY PROCEEDING

INVOLVING THE DEBTORS OR ANY OTHER PARTIES, OR BE DEEMED

CONCLUSIVE ADVICE ON THE TAX OR OTHER LEGAL EFFECTS OF THE PLAN

ON HOLDERS OF CLAIMS AGAINST OR INTERESTS IN THE DEBTORS.

THE DESCRIPTION OF THE PLAN CONTAINED IN THIS DISCLOSURE

STATEMENT IS INTENDED AS A SUMMARY ONLY AND IS QUALIFIED IN ITS

ENTIRETY BY REFERENCE TO THE PLAN ITSELF. EACH CREDITOR AND

HOLDER OF AN INTEREST IS ENCOURAGED TO READ, CONSIDER AND

CAREFULLY ANALYZE THE TERMS AND PROVISIONS OF THE PLAN.

THIS DISCLOSURE STATEMENT AND THE PLAN PROVIDE FOR

INJUNCTIVE RELIEF, EXCULPATIONS, AND RELEASES AS TO THE DEBTORS

AND CERTAIN OTHER PARTIES. THE PERMANENT INJUNCTIONS,

EXCULPATIONS, AND RELEASES SET FORTH IN THE PLAN WILL APPLY TO

HOLDERS OF ANY CLAIM, INTEREST, LIEN, ENCUMBRANCE OR DEBT,

WHETHER SECURED OR UNSECURED, GRANTED PRIORITY STATUS,

INCLUDING PRIORITY TAX (FEDERAL OR STATE), NON-PRIORITY UNSECURED

CLAIM OR ANY INTERESTS IN THE DEBTORS. CREDITORS AND HOLDERS OF

AN INTEREST WILL BE BOUND BY THE INJUNCTIVE RELIEF, EXCULPATIONS,

AND RELEASES UNLESS CREDITORS TIMELY FILE OBJECTIONS IN

ACCORDANCE WITH THE PROVISIONS SET FORTH IN THE DISCLOSURE

STATEMENT ORDER OR HEREIN AND APPEAR AT THE CONFIRMATION

HEARING TO PROSECUTE ANY OBJECTION.

E. Important Dates

The Bankruptcy Court approved this Disclosure Statement by and through the Disclosure

Statement Order entered on [________], 2020 after notice and hearing and in accordance with

Bankruptcy Code section 1125. The Bankruptcy Court found that the information contained

herein is of the kind, and is sufficiently detailed, to enable a hypothetical, reasonable investor


4

typical of the class being solicited to make an informed judgment concerning the Plan.

HOWEVER, THE BANKRUPTCY COURT HAS NOT CONFIRMED THE PLAN, NOR

IS THIS DISCLOSURE STATEMENT OR THE DISCLOSURE STATEMENT ORDER

TO BE CONSTRUED AS APPROVAL OR ENDORSEMENT OF THE PLAN BY THE

BANKRUPTCY COURT.

As stated in the Disclosure Statement Order, the Bankruptcy Court has scheduled a

hearing to consider Confirmation of the Plan for June 12, 2020 at 2:00 p.m. (the “Confirmation

Hearing”). Holders of Claims and Interests and other parties in interest may attend this hearing.

Objections to confirmation of the Plan must be filed on or before June 9, 2020, as set forth in the

Disclosure Statement Order.

All Ballots with respect to the Plan must be completed in full and signed to be counted in

the tabulation of the votes and must be received by Stretto (the “Voting Agent”) no later than

4:00 p.m. on June 9, 2020 (the “Voting Deadline”).

Completed Ballots must be signed, dated and returned with an original signature

promptly either:

(a) Via E-Ballot:

You may access the E-Ballot Platform on the Voting Agent’s website by visiting

http://cases.stretto.com/agera, clicking on the “E-Ballot” link and following the

instructions set forth on the website, and submitting your consent and vote.

(b) Via Mail, Personal Delivery, or Overnight Courier:

Agera Balloting

c/o Stretto, 8269

E. 23rd Ave., Ste. 275

Denver, CO 80238

F. Solicitation Procedures

Creditors holding Claims that are impaired have the right to vote to accept or reject the

Plan. Generally speaking, a Claim or Interest is impaired if the Plan alters the legal, contractual,

or equitable rights of the holder of the Claim or Interest. A Class of Creditors accepts the Plan

when Creditors holding at least two-thirds in amount of such class and more than one-half in

number of the Claims in such class who actually cast their ballots vote to accept the Plan.

In the Bankruptcy Cases, the Plan contains five (5) Classes of Claims and one (1) Class

of Interests. The Plan provides that holders of Class 1B, 2, 3, and 4 Claims are impaired in that

the Plan alters the legal, contractual, or equitable rights of the holders of such Claims. Holders

of Class 5 Interests receive no Distribution under the Plan on account of their Claims and


5

Interests in the Debtors and are therefore deemed to reject the Plan. Accordingly, votes on the

Plan will be solicited only from Classes 1B, 2, 3, and 4.

G. Recommendation

In the Debtors’ and Committee’s opinions, the treatment of Creditors and interest holders

under the Plan contemplates a greater recovery than that which is likely to be achieved under any

other alternative for the liquidation of the Debtors’ assets under chapter 11 or chapter 7 of the

Bankruptcy Code.

Accordingly, the Debtors and the Committee submit that confirmation of the Plan is in

the best interests of the Debtors’ Creditors and holders of Interests and recommend that all

holders of Claims entitled to vote on the Plan vote to accept the Plan.

H. Inquiries

If you have any questions about the packet of materials that you have received, please

contact the Voting Agent, Stretto, by telephone at (877) 273-7276 during normal business hours.

II. BACKGROUND

A. Nature of the Debtors’ Business

Headquartered in Briarcliff Manor, New York, the Debtors provided retail electricity and

natural gas to commercial, industrial, and residential customers. The Debtors offered their

customers “energy choice”—the ability to receive electricity and natural gas commodity needs

from a source other than the local utility in certain markets that have been restructured to permit

retail competition, which allows customers to tailor energy supply to their specific needs. Across

both electricity and natural gas supply, the Debtors, as of October 4, 2019 (the “Petition Date”),

serviced 87 distinct utility regions and provided service to approximately 35,000 customers,

comprised of over 75,000 accounts in California, Connecticut, Delaware, District of Columbia,

Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio,

Pennsylvania, Rhode Island, Texas, and Virginia.

B. Organizational Structure

Debtor Agera Holdings LLC (“Agera Holdings”), a Delaware limited liability company,

is a holding company with no business operations. Debtor Utility Recovery LLC is a Delaware

limited liability company that is a dormant entity with no operations, assets, or liabilities and is

wholly-owned by Agera Holdings. Debtor Agera Solutions LLC (“Solutions”) is a Delaware

limited liability company that is a dormant entity with no operations, assets, or liabilities and is

wholly-owned by Agera Holdings. Debtor Agera Energy LLC (“Agera Energy”) is a Delaware

limited liability company that, as of the Petition Date, was an operating entity that maintained

contracts with customers in several states for the supply of natural gas and/or electricity and is

wholly-owned by Agera Holdings. Debtor energy.me midwest llc (“EME”) is an Illinois limited

liability company that, as of the Petition Date, was an operating entity that maintained contracts


6

with customers in several states for the supply of electricity and is wholly-owned by Agera

Energy. Debtor Aequitas Energy Inc. (“Aequitas”) is a Connecticut corporation that, as of the

Petition Date, was an operating entity that maintained contracts with customers in Connecticut

for the supply of electricity and is wholly owned by Agera Energy. Non-debtor Briarcliff

Property Group, LLC (“Briarcliff”) is a New York limited liability company wholly-owned by

Agera Energy that owns and manages the real property used for the Debtors’ headquarters.

Agera Energy was the “Designated Buyer” under an asset purchase agreement between

Platinum Partners Arbitrage Fund L.P. (“PPVA”) and Glacial Energy Holdings (“Glacial”) in

PPVA’s June 2014 acquisition of substantially all of Glacial’s assets in Glacial’s voluntary

chapter 11 bankruptcy case. After the acquisition of Glacial, and upon information and belief,

Agera Energy issued an amended and restated convertible promissory note in the amount of

$600,071.23 (the “Convertible Note”) to Principal Growth Strategies (“PGS”). PPVA and a

Platinum-operated entity indirectly became the holders of the Convertible Note through their

ownership interest in PGS. The Convertible Note was convertible into 95.01% of the

outstanding capital securities of Agera Holdings. Upon information and belief, on June 9, 2016,

the Convertible Note was sold to AGH Parent LLC (“AGH Parent”), which exercised its

conversion right in April 2018 and, as a result, now owns 95.01% of the voting membership

interests in Agera Holdings. Upon information and belief, Greg E. Lindberg (“Lindberg”) owns

50% of the total economic interest and 89% of the total voting interest in AGH Parent. Upon

information and belief, Lindberg is also the beneficial holder of equity interests in approximately

100 independent operating companies, including the Debtors, through Lindberg-owned Eli

Global LLC (“Eli Global”). In March 2020, Lindberg was convicted of committing certain acts

wholly unrelated to the Debtors. Upon information and belief, Lindberg has had no involvement

with the Debtors’ day-to-day operations.

C. Prepetition Capital Structure

1. Preferred Supplier Agreement

Agera Energy, EME, and Aequitas (collectively, the “Agera Opco Entities”) and BP

Energy Company (“BP”) are parties to (i) that certain Preferred Supplier Agreement, dated

October 2, 2015 (as amended on May 15, 2017 and February 9, 2018, the “Senior Lien Supply

Agreement”) and (ii) that certain ISDA Master Agreement, dated May 5, 2015 (as amended on

October 2, 2015, and together with all related confirmations, schedules, annexes, exhibits and

addenda thereto, the “Senior Lien ISDA Master Agreement”). Pursuant to the Senior Lien

Supply Agreement and Senior Lien ISDA Master Agreement, BP supplied electricity and natural

gas to the Agera Opco Entities and engaged in hedging transactions with the Agera Opco

Entities.

Pursuant to that certain Pledge and Security Agreement, dated October 2, 2015, between

Agera Energy and Agera Holdings, as Pledgors, and BP, as Secured Party, (i) Agera Energy

pledged substantially all of its assets to BP as collateral security for Agera Energy’s obligations

to BP under the Senior Lien Supply Agreement and Senior Lien ISDA Master Agreement, and

(ii) Agera Holdings pledged its membership interests in Agera Energy to BP as collateral


7

security for Agera Energy’s obligations to BP under the Senior Lien Supply Agreement and

Senior Lien ISDA Master Agreement. Pursuant to that certain Pledge and Security Agreement,

dated October 2, 2015, between Aequitas and Agera Energy, as Pledgors, and BP, as Secured

Party, (i) Aequitas pledged substantially all of its assets to BP as collateral security for Aequitas’

obligations to BP under the Senior Lien Supply Agreement and Senior Lien ISDA Master

Agreement, and (ii) Agera Energy pledged its membership interests in Aequitas to BP as

collateral security for Aequitas’ obligations to BP under the Senior Lien Supply Agreement and

Senior Lien ISDA Master Agreement. Pursuant to that certain Pledge and Security Agreement,

dated October 2, 2015, between EME and Agera Energy, as Pledgors, and BP, as Secured Party,

(i) EME pledged substantially all of its assets to BP as collateral security for EME’s obligations

to BP under the Senior Lien Supply Agreement and Senior Lien ISDA Master Agreement, and

(ii) Agera Energy pledged its equity interests in EME to BP as collateral security for EME’s

obligations to BP under the Senior Lien Supply Agreement and Senior Lien ISDA Master

Agreement.

Pursuant to that certain Personal Guaranty, dated November 20, 2018 (the “Original

Lindberg Guaranty”), between Lindberg and BP, Lindberg guaranteed the obligations of the

Agera Opco Entities2 and Agera Holdings under the Senior Lien Supply Agreement and the

Forbearance Agreement (as defined below), subject to an aggregate maximum liability of

$51,000,000 (subject to certain potential adjustments).

Pursuant to that certain Guaranty Agreement, dated November 20, 2018 (the “Original

GHTG Guaranty” and, together with the Original Lindberg Guaranty, the “Original Guaranties”),

between Global Health Technology Group, LLC (“GHTG”) and BP, GHTG guaranteed the

obligations of the Agera Opco Entities3 and Agera Holdings under the Senior Lien Supply

Agreement and the Forbearance Agreement, subject to an aggregate maximum liability of

$51,000,000 (subject to certain potential adjustments. Upon information and belief, Lindberg is

the beneficial holder of equity interests in GHTG. Upon information and belief, in connection

with the amendment to the Forbearance Agreement (as discussed below), the Original Guaranties

were terminated and replacement guaranties (the “Replacement Guaranties”) were executed in

January 2019, in substantially the same form as the Original Guaranties. As of the Petition Date,

the Debtors estimated that approximately $161.6 million was outstanding under the Senior Lien

Supply Agreement and Senior Lien ISDA Master Agreement.

2. Second Lien Revolving Credit Facility

Agera Energy and Colorado Bankers Life Insurance Company (“Colorado”), as Lender

and Agent, are parties to that certain Junior Loan and Security Agreement, dated February 15,

2018 (the “Revolving Credit Agreement”), pursuant to which Colorado agreed to make available

2 Aequitas Energy, Inc. is an “Agera Opco Entity” as defined herein. However, Aequitas Energy LLC (not Aequitas

Energy, Inc.) is named as a guarantor in the Original Lindberg Guaranty.

3 Aequitas Energy, Inc. is an “Agera Opco Entity” as defined herein. However, Aequitas Energy LLC (not Aequitas

Energy, Inc.) is named as a guarantor in the Original GHTG Guaranty.


8

to Agera Energy a revolving credit line in the maximum principal amount of $35,000,000.

Agera Energy pledged substantially all of its assets to Colorado as collateral security for Agera

Energy’s obligations to Colorado under the Revolving Credit Agreement. Pursuant to that

certain Second Amended and Restated Intercreditor Agreement, dated February 9, 2018, between

BP, Agera Holdings, the Agera Opco Entities, and certain Subordinate Lienholders (as defined

therein), the security interests granted to Colorado are subordinate in priority to the security

interests granted to BP. Colorado alleges that, as of the Petition Date, $35,000,000 in principal

was outstanding under the Revolving Credit Facility.

3. Unsecured Debt

The Debtors estimate that, as of the Petition Date, approximately $82 million of general

unsecured debt was outstanding, comprised primarily of trade claims, obligations related to REC

and ACP obligations (each as defined and discussed below), and broker commission payments.

D. Circumstances Leading to Filing

1. Legacy Issues from Prior Management

The retail energy business is, by its nature, a very competitive, low-margin business. The

Debtors’ senior management, who joined the Debtors approximately one year prior to the

Petition Date, uncovered a number of structural challenges within the Debtors’ business. The

Debtors grew their business significantly in the 18-month period from January 2017 through

June 2018, primarily from selling and onboarding customers on fixed price power contracts,

which are inherently riskier than variable price contracts. The size of the Debtors’ power

business, as measured by annualized volumes on flow, more than doubled during this time.

Upon arrival, the new senior management team uncovered a number of challenges,

including: (a) poor (and in some cases no) visibility into forward margins and, consequently,

poor overall financial planning and forecasting; (b) a significant number of customer contracts at

very low and negative forward margins (uncovered after developing visibility into forward

margins); (c) a suboptimal control environment (financial, pricing, risk management, etc.); and

(d) an overstated balance sheet. Upon discovering these issues, management developed, and

presented in late September 2018, a number of Strategic options for Eli Global to assess, ranging

from a bankruptcy filing to a turnaround plan.

Eli Global ultimately committed to a turnaround plan, with full recognition of the capital

necessary to fund the plan. The Debtors’ business was not expected to be profitable until 2020

given that it was straddled with the run-off of low- and negative-margin customer contracts. The

Debtors were executing the turnaround plan up until the unexpected capital liquidity problems

discussed below.


9

2. The Prepetition Defaults

In September 2018, the Debtors’ current management identified material balance sheet

issues, which led to a restatement of the Debtors’ financials. Specifically, as of August 31, 2018,

there was approximately $39 million of over stated receivables, of which $37 million related to

unbilled receivables. As a result of the foregoing discovery, the Debtors suddenly found

themselves in breach of the Senior Lien Supply Agreement’s $16 million Tangible Net Worth

covenant. After further discussions with various constituents, BP, the Agera Opco Entities, and

Agera Holdings executed that certain Forbearance Agreement and Limited Waiver, dated

November 20, 2018 (the “Forbearance Agreement”), pursuant to which (i) the Agera Opco

Entities and Agera Holdings acknowledged that they had breached their covenant in the Senior

Lien Supply Agreement to maintain a Tangible Net Worth (as defined in the Senior Lien Supply

Agreement) of at least $16 million, (ii) BP agreed to forbear from enforcing remedies under the

Senior Lien Supply Agreement as a result of such breach, and (iii) Agera Holdings agreed to

make additional capital contributions to Agera Energy of at least $51 million on the following

schedule:

Capital Contribution Contribution Date

$5,000,000 December 14, 2018

$15,000,000 January 4, 2019

$10,000,000 February 1, 2019

$15,000,000 June 20, 2019

$6,000,000 September 20, 2019

Eli Global played a significant role in the discussions leading up to the Forbearance

Agreement. Specifically, Eli Global intended to provide the funding to Agera Holdings necessary

to satisfy the capital contributions contemplated under the Forbearance Agreement. The $5

million capital contribution due on December 14, 2018 was satisfied on December 14, 2018. The

$15 million capital contribution due on January 4, 2019 was not satisfied. However, a $5 million

capital contribution was made on January 18, 2019. On January 25, 2019, BP, the Agera Opco

Entities, and Agera Holdings executed that certain First Amendment to Forbearance Agreement

and Limited Waiver, dated November 20, 2018, pursuant to which: (i) the Agera Opco Entities

and Agera Holdings acknowledged that they were in breach of the Forbearance Agreement due

to Agera Holdings’ failure to fully fund the capital contribution payment due on January 4, 2019,

and (ii) Agera Holdings agreed to the following revised forward capital contribution schedule:

Capital Contribution Contribution Date

$5,000,000 January 18, 2019

$5,000,000 January 31, 2019

$10,000,000 February 18, 2019

$5,000,000 April 18, 2019

$15,000,000 June 20, 2019

$6,000,000 September 20, 2019


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The $5 million capital contribution due on January 31, 2019 was satisfied on January 31,

2019. The $10 million capital contribution due on February 18, 2019 was satisfied on February

19, 2019. The $5 million capital contribution due on April 18, 2019 was not satisfied. On April

22, 2019, BP noticed the Agera Opco Entities and Agera Holdings of their default under the

Forbearance Agreement. On April 23, 2019, BP noticed the Agera Opco Entities and Agera

Holdings of their failure to remit approximately $43 million due to BP under the Senior Lien

Supply Agreement, due on April 22, 2019, for power delivered in March 2019, under the Senior

Lien Supply Agreement. On April 26, 2019, BP noticed the Agera Opco Entities and Agera

Holdings of their failure to remit approximately $3.5 million due to BP, due on April 25, 2019,

for gas delivered in March 2019, under the Senior Lien Supply Agreement. On April 29, 2019, a

$5 million capital contribution was made in satisfaction of the payment that was due on April 18,

2019.

Upon information and belief, all of the foregoing capital contributions were made to

Agera Holdings by Eli Global. On September 25, 2019, BP noticed the Agera Opco Entities of

their breaches under the Senior Lien Supply Agreement and Senior Lien ISDA Master

Agreement, for failing to timely remit payment for power and gas invoices in the amount of

$103,022,968.20, under the Senior Lien Supply Agreement and Senior Lien ISDA Master

Agreement.

3. Loss of Funding from Eli Global

On May 9, 2019, during a triparty meeting between the Debtors, Eli Global, and BP, it

became clear that Eli Global was no longer in a position to inject the requisite capital needed to

support the Debtors’ business.

4. RPS Requirements and Defaults

In certain states where the Debtors operated, the Debtors were required to satisfy

renewable portfolio standards (“RPS”) as a condition of their license or certification to supply

energy to customers in such states. RPS laws require a certain portion of a state’s electricity

consumption to be generated from renewable sources, such as wind, solar, biomass, geothermal,

or hydroelectric. Energy suppliers that are required to comply with certain RPS requirements,

such as the Debtors, must obtain a sufficient amount of renewable energy credits (often called

renewable energy certificates or “RECs”) during regular reporting cycles (e.g., annually) with

each state. RECs are created when renewable energy is generated and delivered to the grid.

Those renewable energy producers may then use the RECs to satisfy their own RPS requirements

or sell the RECs they generate to other energy suppliers, such as the Debtors. If a supplier does

not comply with RPS requirements, the supplier may retain its license or certification to supply

energy by paying an alternative compliance payment (“ACP”) in lieu of acquiring RECs. In

nearly all instances, the ACP will be more costly than had the energy supplier acquired the

necessary RECs. Ultimately, an energy supplier’s failure to satisfy these requirements may

result in the relevant state taking regulatory enforcement action, including suspension and

revocation of the supplier’s license to supply energy in such state.


11

May and June of 2019 were very critical months because the Debtors were scheduled to

pay for and take delivery of a significant number of RECs to satisfy RPS requirements for the

2018 compliance year. Without additional capital contributions from Eli Global, the Debtors

were forced to default on a number of REC trades, and thus were unable to satisfy certain RPS

requirements. As of the Petition Date, the Debtors were in default of their 2018 RPS

requirements in Massachusetts, New Hampshire, and Rhode Island as a result of the Debtors’

financial inability to acquire RECs or subsequently make ACP payments. The Debtors estimate

that their inability to satisfy RPS requirements in the normal course resulted in an aggregate ACP

“premium” of approximately 60%, as compared to the cost of acquiring the RECs necessary to

avoid ACP obligations. The Debtors estimate that as of the Petition Date, they had not paid

more than $72 million on account of REC and ACP requirements for the 2018 compliance year.

Although certain states have filed claims related to these requirements, the Debtors contest any

assertion that RPS requirements give rise to valid claims against the Debtors.

5. Pre-Petition Marketing Process

As a result of the Debtors’ severe liquidity constraints and contemplated regulatory

enforcement action, including potential suspension or revocation of the Debtors’ license to sell

electricity or natural gas in certain states, the Debtors began pursuing strategic alternatives. In

May 2019, the Debtors engaged Stifel, Nicolaus & Co., Inc. and Miller Buckfire & Co., LLC

(collectively, “Miller Buckfire”) as investment banker to explore strategic alternatives, including

conducting a marketing process for the sale of the Debtors, as either a going concern or an asset

sale. In connection with this process, Miller Buckfire prepared marketing materials, including a

Confidential Information Memorandum (the “CIM”) and compiled a list of potentially interested

parties. Miller Buckfire contacted 207 parties, comprised of 121 strategic investors and 86

financial investors. Each party was provided with a teaser document and was invited to execute

a confidentiality agreement (“NDA”) with the Debtors in order to receive the CIM and access to

a virtual data room. Of the 207 parties contacted, 39 executed an NDA and received the CIM

and process letter. Twenty of those 39 parties expressed interest in further participating in the

process and were provided access to a virtual data room. Throughout this period, Miller

Buckfire facilitated these parties’ due diligence efforts. In June 2019, the Debtors received

numerous preliminary, non-binding indications of interest (each, an “IOI”). Following receipt of

the IOIs, the Debtors and their advisors continued to facilitate parties’ due diligence, including

management meetings and providing additional diligence information. Following these meetings,

the Debtors and their advisors continued negotiations with the interested parties regarding their

proposals and key terms, including timing and transaction structure.

In late July 2019, the Debtors and their advisors provided certain interested parties with a

draft asset purchase agreement (the “APA”) and second round process letter, with a deadline to

provide a binding bid and marked-up APA by August 5, 2019. On October 3, 2019, the Debtors

and Exelon Generation Company, LLC (“Exelon”) executed that certain Asset Purchase

Agreement, pursuant to which Exelon will serve as the stalking horse bidder to acquire a

significant portion of the Debtors’ customer contracts for $24,750,000.00, subject to certain

adjustments, under Bankruptcy Code sections 363 and 365 (the “Stalking Horse APA”).


12

E. Potential Estate Causes of Action

In addition to the Causes of Action Agera Energy asserted in the Adversary Proceeding

against Sunwave (as defined in Section III.N below), the Debtors may have been victims of

wrongdoing, including that discussed by the Committee in its Standing Motion (as defined and

described in Section III.J below), by various other individuals and parties. Except to the extent

expressly released under the release provisions in the Plan (as described in Section VIII.F

and VIII.G below), any Claims or Causes of Action related to any such wrongdoing are fully

preserved.

The Debtors are not aware of any meritorious Claims or Causes of Action that the

Debtors would have against any of the Released Parties, but the Debtors have not performed a

fulsome analysis of such Claims or Causes of Action. Thus, certain meritorious Claims or

Causes of Action may exist for which the Released Parties would be liable to the Debtors if such

Claims or Causes of Action were not released.

F. The Bankruptcy Cases

On the Petition Date, the Debtors filed voluntary petitions for relief under chapter 11 of

the Bankruptcy Code. The Debtors continue to operate their businesses and manage their

properties as debtors in possession pursuant to Bankruptcy Code sections 1107(a) and 1108. No

request for the appointment of a trustee or examiner has been made in the Bankruptcy Cases.

III. SIGNIFICANT EVENTS DURING THE CHAPTER 11 CASE

A. First Day Pleadings

To facilitate the commencement of the Bankruptcy Cases and minimize disruption to the

Debtors’ operations, the Debtors filed certain motions and applications with the Bankruptcy

Court on the Petition Date seeking certain relief, as summarized below. The relief sought in the

“first day” pleadings facilitated the Debtors’ transition into chapter 11 and aided in the

preservation of the Debtors’ going-concern value.

i. Taxes Motion

The Debtors believed that, in some cases, certain taxing, regulatory, and governmental

authorities had the ability to exercise rights and remedies if the Debtors failed to remit certain

taxes and fees. Accordingly, the Debtors filed the Debtors’ Motion for Entry of an Interim and

Final Order (I) Authorizing, but not Directing, the Payment of Certain Prepetition Taxes and

Fees and (II) Granting Related Relief [Docket No. 7]. The Bankruptcy Court granted the relief

requested on an interim basis on October 8, 2019 [Docket No. 56] and on a final basis on

November 7, 2019 [Docket No. 202].


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ii. Wage Motion

To minimize the personal hardships the Debtors’ employees would have suffered if

prepetition employment-related obligations were not paid when due or as expected, as well as to

maintain morale during the critical time of the beginning stages of the Bankruptcy Cases, the

Debtors filed the Debtors’ Motion for Entry of Interim and Final Orders Authorizing Payment

of Certain Prepetition Wages, Reimbursable Expenses, Benefits, and Related Items [Docket No.

8]. The Bankruptcy Court granted the relief requested on an interim basis on October 8, 2019

[Docket No. 51] and on a final basis on November 7, 2019 [Docket No. 201].

iii. Cash Management Motion

The Debtors used a centralized cash management system comprised of nineteen Debtor

bank accounts to collect funds from, and to pay expenses incurred by, their operations. As such

system was integral to the operation of the Debtors’ business, the Debtors filed the Debtors’

Motion for Entry of Interim and Final Orders Authorizing Debtors to Continue (I) to Operate

Their Cash Management System, Honor Certain Prepetition Obligations Related Thereto, and

Maintain Existing Business Forms; and (II) Their Intercompany Transactions [Docket No. 9].

The Bankruptcy Court granted the relief requested on an interim basis on October 8, 2019

[Docket No. 52] and on a final basis on November 15, 2019 [Docket No. 225].

iv. Motion to Pay

The Debtors identified a limited list of service providers that provided the Debtors with

natural gas, electricity, transmission, distribution and related services, all of which were critical

to the Debtors’ business operations. The Debtors therefore filed the Debtors’ Motion for Entry

of Interim and Final Orders Authorizing the Debtors to (I) Pay Certain Prepetition Claims of

Service Providers and (II) Continue Satisfying Postpetition Obligations in the Ordinary Course

of Business [Docket No. 12]. The Bankruptcy Court granted the relief requested on an interim

basis on October 8, 2019 [Docket No. 55] and on a final basis on November 7, 2019 [Docket No.

200].

v. Procedural and Administrative Orders

To facilitate a smooth and efficient administration of the Bankruptcy Cases and reduce

the administrative burdens associated therewith, on October 8, 2019, the Bankruptcy Court also

entered procedural and administrative orders, including the: (a) Order Directing Joint

Administration of Related Chapter 11 Cases [Docket No. 49]; (b) Order (I) Authorizing the

Debtors to (A) File a Consolidated List of Creditors, (B) File a Consolidated List of the Debtors’

Thirty Largest Unsecured Creditors, and (II) Authorizing Debtors to Establish Procedures for

Notifying Parties of the Commencement of These Cases [Docket. No. 53]; and (c) Order (I)

Extending Debtors’ Time to File Schedules of Assets and Liabilities, Schedules of Current

Income and Expenditures, Schedules of Executory Contracts and Unexpired Leases, and

Statements of Financial Affairs and (II) Authorizing Debtors to File Consolidating Monthly

Operating Reports [Docket No. 54] (the “Order Extending Time to File Schedules”). In


14

addition, on October 17, 2019, the Bankruptcy Court entered the Order (A) Establishing Certain

Notice, Case Management, and Administrative Procedures and (B) Granting Related Relief

[Docket No. 96].

B. Other Significant Pleadings

i. Insurance Motion

As of the Petition Date, the Debtors were covered by 12 insurance policies that were

provided and/or administered by multiple third-party insurance carriers and that were essential to

the preservation of the value of the Debtors’ business, properties, and other assets. The Debtors

therefore filed the Debtors’ Motion for Entry of an Order (I) Authorizing the Debtors to (A) Pay

their Obligations Under Prepetition Insurance Policies, (B) Continue to Pay Certain Brokerage

Fees, (C) Renew, Supplement, Modify, or Purchase Insurance Coverage in the Ordinary Course,

and (D) Honor Their Prepetition Insurance Premium Financing Agreements; (II) Authorizing

Banks and Other Financial Institutions to Honor Checks and Electronic Transfer Requests

Related Thereto; and (III) Granting Related Relief [Docket No. 14]. The Bankruptcy Court

granted the relief requested on November 17, 2019 [Docket No. 203].

ii. Ordinary Course Professionals Motion

As of the Petition Date, the Debtors routinely employed various attorneys to represent

them in various matters arising in the ordinary course of business, unrelated to the Bankruptcy

Cases. Because such attorneys (each an “Ordinary-Course Professional”) provided critical

services necessary for the Debtors to comply with legal and regulatory requirements and operate

their business soundly and efficiently, the Debtors filed the Debtors’ Motion for Entry of an

Order Authorizing Debtors to Employ and Pay Professionals Utilized in the Ordinary Course of

Business [Docket No. 18], seeking authorization to (a) retain and employ Ordinary-Course

Professionals without approval of separate, formal retention applications for each Ordinary-

Course Professional and (b) pay 100% of the interim fees and disbursements to each Ordinary-

Course Professional upon the submission to the Debtors of an invoice, not to exceed: (i)

$100,000 per month on average over any three-month period on a rolling basis for each

Ordinary-Course Professional (the “Monthly Fee Cap”); and (ii) $600,000 in the aggregate from

the Petition Date through confirmation of a plan for each Ordinary-Course Professional (the

“Case Cap”). On November 7, the Court issued its Order Authorizing the Debtors to Employ

and Pay Professionals Utilized in the Ordinary Course of Business [Docket No. 206], which

granted the Debtors the relief requested, except that the Monthly Fee Cap was set at $50,000, and

the Case Cap was set at $250,000.

C. Postpetition Financing and Use of Cash Collateral

On October 8, 2019, upon motion of the Debtors, the Bankruptcy Court entered the

Interim Order (I) Authorizing Use of Cash Collateral, (B) Granting Adequate Protection, (II)(A)

Approving Postpetition Supply Facility, (B) Granting Liens and Providing Superpriority

Administrative Expense Claims, and (III) Modifying the Automatic Stay [Docket No. 47] (the


15

“Interim DIP Order”). On November 12, 2019, the Bankruptcy Court entered a Final Order (I)

Authorizing Use of Cash Collateral, (B) Granting Adequate Protection, (II)(A) Approving

Postpetition Supply Facility, (B) Granting Liens and Providing Superpriority Administrative

Expense Claims, and (III) Modifying the Automatic Stay [Docket No. 221] (the “Final DIP

Order”). The Interim DIP Order and Final DIP Order authorized the Debtors’ use of cash

collateral and entry into postpetition financing.

D. Key Employee Retention Plan and Key Employee Incentive Plan

On October 11, 2019, the Debtors filed the Debtors’ Motion for Entry of An Order

Approving (I) Key Employee Incentive Plan and (II) Key Employee Retention Plan [Docket No.

69], seeking entry of an order authorizing the Debtors’ (i) key employee retention plan for 30

key employees and providing for payments up to an aggregate amount of $1,149,902.00; and (ii)

key employee incentive plan term sheet for two members of the Debtors’ senior management and

providing for payments up to an aggregate amount of $700,000.00. On November 7, 2019, the

Bankruptcy Court entered the Order Approving Debtors’ Key Employee Retention Program

[Docket No. 207]. On December 17, 2019, the Bankruptcy Court entered the Order Approving

Debtors’ Modified Key Employee Incentive Plan Term Sheet [Docket No. 323].

E. The Appointment of the Committee

On October 11, 2019, the United States Trustee for the Southern District of New York

(the “U.S. Trustee”) appointed an official committee of unsecured creditors pursuant to

Bankruptcy Code section 1102 (the “Committee”) [Docket No. 61].

F. Retention of Professionals; Appointment of Claims and Noticing Agent

On October 9, 2019, the Bankruptcy Court entered an order authorizing the Debtors to

retain Stretto as claims and noticing agent nunc pro tunc to the Petition Date [Docket No. 50].

On December 3, 2019, the Bankruptcy Court entered an order authorizing the Debtors to

retain GlassRatner, LLC as financial advisor nunc pro tunc to the Petition Date [Docket No.

270].

Also on December 3, 2019, the Bankruptcy Court entered an order authorizing the

Committee to retain Kilpatrick Townsend & Stockton LLP as counsel nunc pro tunc to October

11, 2019 [Docket No. 271].


retain Miller Buckfire & Co., LLC and Stifel Nicolaus & Co., Inc. as investment banker nunc

pro tunc to the Petition Date [Docket No. 318].


Debtors to retain McDermott Will & Emery LLP as bankruptcy counsel nunc pro tunc to the

Petition Date [Docket No. 319].


16


Committee to retain Dundon Advisers LLC as financial advisor nunc pro tunc to October 11,

2019 [Docket No. 320].


retain Stretto as administrative advisor to the Debtors nunc pro tunc to the Petition Date [Docket

No. 324].

G. Schedules of Assets and Liabilities, Statements of Financial Affairs

On November 6, 2019, the Debtors filed their schedules of assets and liabilities and

statements of financial affairs in each of their respective cases (collectively, the “Schedules”)4

pursuant to the Order Extending Time to File Schedules. On December 10, 2019, the Debtors

filed amended Schedules in each of their respective cases.

H. Bar Date for Filing of Claims Arising Prior to the Petition Date

On November 7, 2019, the Bankruptcy Court entered an order [Docket No. 199] (the

“Bar Date Order”): (i) setting a deadline (the “Bar Date”) for filing proofs of claim against the

Debtors and their Estates pursuant to Federal Rule of Bankruptcy Procedure 3003(c)(3); (ii)

approving the form of notice of the Bar Date (the “Bar Date Notice”) to be sent to Creditors and

parties in interest; (iii) setting a deadline (the “Administrative Expense Bar Date”) for filing

applications or motions seeking approval of Administrative Expense Claims against the Debtors

and their Estates; (iv) approving the form of notice of the Administrative Expense Bar Date (the

“Administrative Expense Bar Date Notice”) to be sent to Creditors and parties in interest; and (v)

approving as adequate and sufficient the service of the Bar Date Notice by first class mail and

publication of the Bar Date in the national edition of USA Today or a similar publication. The

Bar Date Order fixed December 23, 2019 at 5:00 p.m., or with respect to Governmental Units,

April 1, 2020 at 5:00 p.m., as the Bar Date by which all Claims against the Debtors, other than

those types of Claims specifically excepted, had to be filed. The Bar Date Order also fixed

December 23, 2019 at 5:00 p.m. as the Administrative Expense Bar Date by which all

Administrative Expense Claims against the Debtors that first began to accrue prior to November

15, 2019 had to be filed for all persons and entities (including, without limitation, individuals,

partnerships, corporations, joint ventures, trusts, and governmental units).

The Bar Date Notice and Administrative Bar Date Notice were served by first class

regular mail upon (a) the U.S. Trustee; (b) counsel for the Committee; (c) all persons or entities

that requested notice of the proceedings in the Bankruptcy Cases; (d) all known creditors of the

Debtors, including as set forth on the Schedules and those that filed claims; (e) all parties to

executory contracts and unexpired leases of the Debtors; and (f) the Internal Revenue Service, all

state and local taxing authorities, and all applicable Governmental Units. Notice of the Bar Date

and Administrative Expense Bar Date was also published in USA Today on November 21, 2019.

Except for the holders of certain specifically excluded Claims, every Creditor was required to

4 The Schedules filed on November 6, 2019 were restricted from public view to comply with privacy guidelines, and

updated versions of the Schedules, accessible to the public, were filed on November 18, 2019.


17

file a proof of Claim on or before the Bar Date so that the Debtors could ascertain with certainty

the total amount of pre-petition Claims outstanding.

In accordance with Federal Rule of Bankruptcy Procedure 3003(c)(2), holders of Claims

who failed to comply with the terms of the Bar Date Order are forever barred from (i) filing a

proof of Claim with respect to such Claim, (ii) asserting such Claims against the Debtors or their

Estates and/or property, (iii) filing applications or motions seeking approval of Administrative

Expense Claims (iv) voting on any plan filed in the Bankruptcy Cases, and (iv) participating in

any Distribution in the Bankruptcy Cases on account of such Claims.

I. Sale of the Agera Opco Entities’ Assets

On the Petition Date, the Debtors filed their Motion for Entry of Orders (I)(A) Approving

Bidding Procedures Relating to the Sale of the Debtors’ Assets, (B) Approving Stalking Horse

Asset Purchase Agreement and Bid Protections, (C) Approving Form and Manner of Notices of

Sale, Auction and Sale Hearing, (D) Approving Procedures Relating to the Assumption and

Assignment of Certain Executory Contracts, (E) Scheduling Auction for, and Hearing to

Approve, Sale of the Agera Opco Entities’ Assets; (II)(A) Approving the Sale of the Agera Opco

Entities’ Assets Free and Clear of All Liens, Claims, Interests and Encumbrances and (B)

Authorizing the Assumption and Assignment of Certain Executory Contracts; and (III) Granting

Related Relief [Docket No. 16] (the “Sale Motion”) seeking, among other things: (i) approval of

the bidding procedures (the “Bidding Procedures”) set forth in the Sale Motion for the sale of

substantially all assets of the Debtors (the “Purchased Assets”) free and clear of all liens, claims,

encumbrances, obligations, liabilities, contractual commitments, or interests of any kind or

nature whatsoever (the “Sale”); (ii) approval of the Stalking Horse APA with Exelon Generation

Company, LLC (the “Stalking Horse Bidder”) and certain protections for the Stalking Horse

Bidder; (iii) approval of the procedures related to the assumption and assignment of executory

contracts (iv) preliminary approval of the notice to each relevant non-Debtor contract

counterparty to an executory contract regarding the Debtors’ potential assumption and

assignment of such contract and the amount necessary to cure any defaults thereunder; (v)

approval of the form and manner of notices of the Sale, auction (the “Auction”), and sale hearing

(the “Sale Hearing”); (vi) scheduling the Auction and the Sale Hearing; and (vii) granting related

relief.

An interim hearing with respect to the Sale Motion (the “Interim Hearing”) was held on

October 18, 2019. After the Debtors filed a revised proposed order, which addressed the

Committee’s objection to the Sale Motion, the Court on October 22, 2019 entered the Order

(I)(A) Approving Bidding Procedures Relating to the Sale of the Debtors’ Assets, (B) Approving

Stalking Horse Asset Purchase Agreement and Bid Protections, (C) Approving Form and

Manner of Notices of Sale, Auction and Sale Hearing, (D) Approving Procedures Relating to the

Assumption and Assignment of Certain Executory Contracts, (E) Scheduling Auction for, and

Hearing to Approve, Sale of the Agera Opco Entities’ Assets and (II) Granting Related Relief

[Docket No. 116] (the “Bidding Procedures Order”), which, among other things, approved the

Bidding Procedures and set the Auction for November 4, 2019 and the Sale Hearing for

November 5, 2019.


18

On November 2, 2019, the Debtors filed a Notice of Cancellation of Auction because the

Debtors did not receive any Qualified Bids (as defined in the Bidding Procedures Order) other

than that of the Stalking Horse Bidder. On November 5, 2019, the Court held the Sale Hearing,

and on November 7, 2019, the Court entered the Order (I) Authorizing and Approving the Sale of

Substantially All of the Agera Opco Entities’ Assets Free and Clear of Liens, Claims,

Encumbrances, and Other Interests; (II) Approving the Assumption and Assignment of Certain

Executory Contracts and Unexpired Leases Related Thereto; and (C) Granting Related Relief

[Docket No. 197] (the “Sale Order”), which approved the Sale of the Purchased Assets and

assignment of a significant portion of the Debtors’ customer contracts (the “Assigned

Contracts”) to the Stalking Horse Bidder pursuant to Bankruptcy Code sections 363 and 365.

The Sale closed on November 20, 2019.

Pursuant to the Sale, the Assigned Contracts were transferred to the Stalking Horse

Bidder during the period from November 20, 2019 through March 19, 2020 for those customers

who did not otherwise unilaterally choose to switch to a different service provider. All

customers whose contracts did not constitute Assigned Contracts were either transferred to

different service providers or returned to utility service prior to March 31, 2020, with only a few

exceptions whose transfers will be effective in April, 2020. The final purchase price pursuant to

the Sale is expected to be approximately $17.75 million. There are currently no claims

submitted by the Stalking Horse Bidder for indemnification under the Sale documents, but such

claims may be made through June 17, 2020, and, if made, could result in a reduction of the

purchase price to be paid to Debtors.

J. Challenge Period Extensions/Standing Motion

Pursuant to the Final DIP Order, the Committee requested and received five extensions of

the time to challenge certain stipulations and releases in the Final DIP Order (the “BP

Stipulations”).

On March 13, 2020, the Committee filed its Motion of the Official Committee of

Unsecured Creditors for Order Granting (I) Leave, Standing, and Authority to Commence

Prosecute Certain Claims on Behalf of the Debtors’ Estates Against BP Energy Company and

(II) Related Relief [Docket No. 518] (the “Standing Motion”), thereby tolling the Committee’s

time to bring an action challenging the BP Stipulations. In the Standing Motion, the Committee

seeks standing to assert causes of action against BP on behalf of the Debtors’ estates, including:

(i) claims for avoidance of allegedly preferential transfers made by the Debtors to BP in the form

of BP’s security interests that attached to $24 million worth of collateral that the Debtors posted

with four independent service operators on or about September 26, 2019, September 28, 2019,

and October 1, 2019; (ii) claims for the turnover of or avoidance and recovery of transfers of

approximately $67 million of estate property that the Committee alleges that the Debtors paid to

BP in contravention of paragraph 9 of the Final DIP Order; (iii) an objection under Bankruptcy

Code section 502(a) to $16,698,538.95 in minimum volume fees and Post-PSA fees asserted as

part of BP’s prepetition secured claim; (iv) an objection under Bankruptcy Code section 502(d)

to the entirety of BP’s prepetition claim; and (v) an objection to the 506(c) surcharge waiver

provided under the Final DIP Order that the Committee alleges is warranted due to BP’s failure


19

to fund post-petition alternative compliance payments to the extent they are owed by the Debtors

(collectively, the “Committee Causes of Action”). BP disputes that the Committee will be able

to establish its entitlement to standing pursuant to the Committee Causes of Action and asserts

that the Committee Causes of Action are wholly without merit. A hearing on the Standing

Motion is presently scheduled for May 29, 2020.

K. Plan Support Agreement

Over several months, BP and the Committee have engaged in lengthy discussions to

resolve the Committee Causes of Action. The Debtors understand that BP and the Committee

have reached a tentative resolution to the Committee Causes of Action. The Debtors expect that

BP, the Committee, and the Debtors will file a plan support agreement that will memorialize the

settlement terms reached by BP and the Committee (the “Plan Support Agreement”). This Plan,

which embodies the terms of that agreement related to the economic treatment of the secured and

unsecured Creditors of the Debtors’ Estates, was filed in anticipation of the filing of such

agreement. The Debtors anticipate that the Plan Support Agreement will provide that BP, the

Committee, and the Debtors will support the Plan, resolve the Committee Causes of Action, and

provide for withdrawal of the Standing Motion upon the Effective Date. The Plan Support

Agreement will be neither inconsistent with nor materially different from the Plan.

L. Massachusetts DOER Administrative Expense Claim

On December 20, 2019, the Massachusetts Department of Energy Resources (the “MA

DOER”) filed its Application for Administrative Expenses of the Massachusetts Department of

Energy Resources (the “Application”) [Docket No. 422], seeking allowance and payment of an

administrative expense claim in the amount of $2,699,982 (the “MA DOER Admin Claim”)

related to ACPs allegedly owed for due to energy provided by the Debtors to customers in

Massachusetts between October 4, 2019 and November 15, 2019. On March 20, 2020, the

Committee objected to MA DOER Admin Claim, asserting, among other things, that the ACPs

forming the basis of the MA DOER Admin Claim do not give rise to a claim against the Debtors.

The Debtors intend to object to the MA DOER Admin Claim as well. For similar reasons, the

Debtors and the Committee have also objected to proofs of claim filed by the MA DOER and the

Massachusetts Department of Environmental Protection (“MA DEP”), which claims are based on

the Debtors’ alleged failure to pay ACPs. A hearing on the MA DOER Admin Claim and the

Debtors’ and Committee’s objections to the MA DOER and MA DEP claims has been set for

May 29, 2020. However, an agreement in principle has been reached between the Debtors, the

Committee, the MA DOER, and the MA DEP to settle the matters, and the Debtors anticipate

filing a motion to authorize such settlement pursuant to Bankruptcy Rule 9019 so that such

motion can be heard at the May 29, 2020 hearing.

M. Objections to Priority Claims

On April 29, 2020, the Debtors and Committee filed objections (the “PUC Objections”) to

the proofs of claims (the “PUC Claims”) filed by the New Jersey Board of Public Utilities,

Rhode Island Public Utilities Commission, Pennsylvania Public Utilities Commission, and


20

California Public Utilities Commission (the “PUCs”) [Docket Nos. 644-49 and 651-54]. The

PUCs asserted in the PUC Claims that the entirety of the nearly $16.7 million asserted in the

aggregate is entitled to priority treatment. The Debtors’ Approved Budget does not provide

funding to satisfy the PUC Claims. Thus, if the PUC Claims are allowed as priority claims, the

Debtors will be unable to confirm the Plan. The Debtors also filed an objection to the proof of

claim filed by the New York State Department of Taxation and Finance [Docket No. 650] (the

“NYS Objection”). A hearing on the PUC Objections and NYS Objection has been set for May

29, 2020.

N. Sunwave Adversary Proceeding

On November 8, 2019, Agera Energy commenced an adversary proceeding against

Sunwave USA Holdings, Inc. (“Sunwave”) asserting claims related to Sunwave’s breach of a

non-solicitation clause (the “Non-Solicitation Clause”) in a non-disclosure agreement to which

Agera Energy and Sunwave are parties (Adv. Proc. No. 19-08554 (RDD)) (the “Adversary

Proceeding”). Agera Energy’s complaint in the Adversary Proceeding asserted that Sunwave

breached the Non-Solicitation Clause by soliciting and/or hiring four former Agera employees in

breach of the Non-Solicitation Clause and contains claims for breach of contract, breach of the

covenant of good faith and fair dealing, injunctive relief, and tortious interference with current

and prospective business relations. Also on November 8, 2019, Agera Energy filed the Debtor’s

Emergency Motion for a Temporary Restraining Order, Preliminary Injunction, and Expedited

Discovery [Adv. Docket No. 2] (the “TRO Motion”). On November 21, 2019, the Court entered

the Stipulation and Order Resolving Debtor’s Emergency Motion for a Temporary Restraining

Order, Preliminary Injunction, and Expedited Discovery [Docket No. 10], which resolved the

TRO Motion and pursuant to which Sunwave agreed to abide by the terms of the Non-

Solicitation Clause through the pendency of the Adversary Proceeding. On December 30, 2019,

Sunwave filed a motion to dismiss the Adversary Proceeding [Docket No. 12]. On February 24,

2020, the Court entered the Stipulation and Order of Dismissal [Docket No. 25], which

dismissed the Adversary Proceeding without prejudice, with each party to bear such party’s own

costs and fees associated with the Adversary Proceeding, and pursuant to which Sunwave agreed

to abide by the terms of the Non-Solicitation Clause through June 17, 2020.

IV. SUMMARY OF THE PLAN OF LIQUIDATION

A. General Plan Objectives

Chapter 11 is the chapter of the Bankruptcy Code primarily used for business

reorganization. Asset sales, stock sales, and other liquidation efforts, however, can also be

conducted during a chapter 11 case or pursuant to a chapter 11 plan. Under chapter 11, a

company endeavors to restructure its finances such that it maximizes recovery to its creditors.

Formulation and confirmation of a chapter 11 plan is the primary goal of a debtor in a

chapter 11 case. A chapter 11 plan sets forth and governs the treatment and rights to be afforded

to creditors and shareholders with respect to their claims against and equity interests in the

debtor. Under Bankruptcy Code section 1125, acceptances of a chapter 11 plan may be solicited


21

by the proponent of a plan only after a written disclosure statement has been provided to each

creditor or shareholder entitled to vote on the plan.

The Plan is a plan of liquidation. In general, a chapter 11 plan of liquidation (i) divides

claims and equity interests into separate classes, (ii) specifies the property that each class is to

receive under the plan, and (iii) contains other provisions necessary to implement the Plan.

Generally, the Plan establishes a mechanism by which assets of the Estates will be

distributed to holders of Claims and Interests, in the order set forth in the Plan.

B. Provisions Governing Order and Method for Distributions Under the Plan

The Plan divides Claims against and Interests in the Debtors into six (6) categories or

“Classes” according to the underlying basis and subsequent treatment for each. Claims within

the same Class are treated identically. The Plan is premised on the substantive consolidation of

the Debtors with respect to the voting and treatment of all Claims and Interests, as provided

below.

DIP Financing Claims, Administrative Expense Claims, Professional Fee Claims, Priority

Tax Claims, Non-Tax Priority Claims, Intercompany Claims, and Statutory Fees are not

classified but are treated in the manner set forth in Article 2 of the Plan and summarized below.

C. Classes of Claims

The following classes of Claims and Interests are designated pursuant to and in

accordance with Bankruptcy Code section 1123(a)(1), which Classes shall be mutually

exclusive:

Class Class Description Estimated

Amount of

Allowed Claims

Impairment Estimated

Recovery

Class 1A Allowed Other

Secured Claims

$1,000,000 –

$1,100,000

Unimpaired.

Deemed to

Accept.

100%

Class 1B Allowed Prepetition

BP Secured Claim

$128,222,666 Impaired.

Entitled to

Vote.

72% – 85%

Class 2 Allowed General

Unsecured Claims

$21,700,000 –

$161,000,000

Impaired.

Entitled to

Vote.

1% – 16%

Class 3 Allowed BP

Deficiency Claim

and Allowed BP

Subordinated Claim

$36,500,000 –

$52,400,000

Impaired.

Entitled to

Vote.

0%


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Class 4 Allowed Prepetition

CBLIC Claims

$35,699,288 –

$36,761,160

Impaired.

Entitled to

Vote.

0%

Class 5 Interests N/A Impaired.

Deemed to

Reject.

N/A

i. DIP Financing Claims

The DIP Financing Claims are Allowed in full. All Allowed DIP Financing Claims shall

be paid in full, in Cash on the Effective Date or as soon thereafter as reasonably practicable.

ii. Administrative Expense Claims

All Allowed Administrative Expense Claims shall be paid in full, in Cash in such

amounts as may be Allowed by the Bankruptcy Court (a) as soon as practicable following the

later of the Effective Date or the date upon which the Court enters a Final Order allowing any

such Administrative Expense Claim, (b) as otherwise provided in the Bankruptcy Code or

approved by the Bankruptcy Court, or (c) as agreed by the holder of any such Administrative

Expense Claim. If any Disputed Administrative Expense Claim exists on the Effective Date,

then the Liquidation Trustee shall hold and maintain Cash in the Disputed Confirmation Reserve

in an amount equal to all outstanding Disputed Administrative Expense Claims until such dispute

is resolved consensually or by Final Order. Except with respect to the GUC Budget Excess, any

amounts reserved to satisfy Administrative Expense Claims that are ultimately Disallowed shall

remain collateral securing the Prepetition BP Secured Claim and shall be distributed to BP on

account of the Prepetition BP Secured Claim upon disallowance of such Administrative Expense

Claims.

iii. Professional Fee Claims

All Allowed Professional Fee Claims shall be paid in full, in Cash in such amounts as may be

Allowed by the Bankruptcy Court (a) as soon as practicable following the later of the Effective

Date or the date upon which the Court enters a Final Order allowing any such Professional Fee

Claim, (b) as otherwise provided in the Bankruptcy Code or approved by the Bankruptcy Court,

or (c) as may be agreed upon between the holder of any such Professional Fee Claim and the

Debtors. If any Disputed Professional Fee Claim exists on the Effective Date, then the

Liquidation Trustee shall hold and maintain Cash in the Professional Fee Escrow Account in an

amount equal to all outstanding Disputed Professional Fee Claims until such dispute is resolved

consensually or by Final Order. Except with respect to the GUC Budget Excess, any amounts

reserved to satisfy Professional Fee Claims that are ultimately Disallowed shall remain collateral

securing the Prepetition BP Secured Claim and shall be distributed to BP on account of the

Prepetition BP Secured Claim upon disallowance of such Professional Fee Claims.


23

iv. Priority Tax Claims

Unless otherwise agreed to by the parties, each holder of an Allowed Priority Tax Claim

will receive Cash of a total value, as of the Effective Date, equal to the Allowed amount of such

Priority Tax Claim either (a) in full on the Effective Date, or (b) in regular installment payments

over a period ending not later than five (5) years after the Petition Date, which treatment is not

less favorable than that provided to the General Unsecured Creditors, in accordance with

Bankruptcy Code section 1129(a)(9)(C); provided, however, that all Allowed Priority Tax

Claims that are not due and payable on or before the Effective Date shall be paid in the ordinary

course of business in accordance with the terms thereof. If any Disputed Priority Tax Claim

exists on the Distribution Date, then the Liquidation Trustee shall hold and maintain Cash in the

Disputed Confirmation Reserve in an amount equal to all outstanding Disputed Priority Tax

Claims until such dispute is resolved consensually or by Final Order. Except with respect to the

GUC Budget Excess, any amounts reserved to satisfy Priority Tax Claims that are ultimately

Disallowed shall remain collateral securing the Prepetition BP Secured Claim and shall be

distributed to BP on account of the Prepetition BP Secured Claim upon disallowance of such

Priority Tax Claims.

v. Non-Tax Priority Claims

Each holder of an Allowed Non-Tax Priority Claim will receive Cash on the Effective

Date of a total value, as of the Effective Date or as otherwise provided in the Bankruptcy Code

or approved by the Bankruptcy Court, equal to the full Allowed amount of such Non-Tax

Priority Claim, except to the extent that a holder of such claim agrees to different treatment;

provided, however, that all Allowed Non-Tax Priority Claims that are not due and payable on or

before the Effective Date shall be paid in the ordinary course of business in accordance with the

terms thereof. If any Disputed Non-Tax Priority Claim exists on the Distribution Date, then the

Liquidation Trustee shall hold and maintain Cash in the Disputed Confirmation Reserve in an

amount equal to all outstanding Disputed Non-Tax Priority Claims until such dispute is resolved


reserved to satisfy Non-Tax Priority Claims that are ultimately Disallowed shall remain collateral


Prepetition BP Secured Claim upon disallowance of such Non-Tax Priority Claims.

vi. Intercompany Claims

As a result of substantive consolidation of the Debtors for distribution purposes under the

Plan, as provided in the Plan, holders of Intercompany Claims will not receive any Distribution

of property under the Plan on account of their Intercompany Claims and, on the Effective Date,

the Intercompany Claims will be cancelled

vii. Statutory Fees

On the Effective Date and thereafter as may be required, the Liquidation Trustee shall pay

all Statutory Fees when due and payable. The obligations under this Section shall remain until the


24

entry of a final decree closing the Bankruptcy Cases, a Final Order converting the Bankruptcy

Cases to cases under chapter 7 of the Bankruptcy Code, or a Final Order dismissing the Bankruptcy

Cases.

viii. Class 1A (Allowed Other Secured Claims)

Each holder of an Allowed Other Secured Claim shall receive on the Effective Date

(except to the extent that a holder of an Allowed Other Secured Claim agrees to less favorable

treatment): (i) Cash in an amount equal to such Other Secured Claim; (ii) return of the collateral

securing such Other Secured Claim; (iii) such other treatment that will render such Other

Secured Claim unimpaired under Bankruptcy Code section 1124; or (iv) such other treatment as

the Debtors and the applicable holder of an Allowed Other Secured Claim may agree. Any

Deficiency Claim that may arise on account of the present lack of collateral or otherwise

resulting from the aforesaid treatment shall be included in and treated as a Class 2 Allowed

General Unsecured Claim. For the avoidance of doubt, the Subordinate Lienholders and their

successors will not have Allowed Claims and their liens, if any, shall be released.

ix. Class 1B (Allowed Prepetition BP Secured Claim)

Each holder of an Allowed Prepetition BP Secured Claim shall receive on the Effective

Date, or as soon as reasonably practicable thereafter, all of the following, but not including cash

in an amount necessary to pay or reserve for the Confirmation Amount: the return of proceeds

from the sale of the Prepetition Collateral and any Prepetition Collateral, including, among other

things, the Posted Collateral, subject to Other Secured Claims. BP shall be deemed to (i) waive

any diminution Claim against the Debtors and their Estates under the Final DIP Order, and (ii)

release any lien it holds on (a) Briarcliff that is evidenced by a mortgage or otherwise, as well as

any lien on the Briarcliff Membership Interests, and (b) the Liquidation Trust Assets.

The aggregate Allowed amount of the Prepetition BP Secured Claim shall be the sum of

(i) $128,222,666 and (ii) the amount of any draws on Posted Collateral pursuant to the

Prepetition BP Secured Loan Documents, minus any Adequate Protection Cash Payments (as

defined in the Final DIP Order) applied to the Prepetition BP Secured Claim prior to the

Effective Date.

In no event shall BP receive Distributions under the Plan that exceed the aggregate

Allowed amount of the Prepetition BP Secured Claim unless holders of General Unsecured

Claims have been paid in full. If BP receives Distributions under the Plan that exceed the

Allowed amount of the Prepetition BP Secured Claim before holders of General Unsecured

Claims are paid in full, BP shall remit any such excess amount to the Liquidation Trust, and such

amounts shall constitute Liquidation Trust Assets. In addition, if holders of Prepetition CBLIC

Claims receive Distributions under the Plan that are paid to BP pursuant to an intercreditor

agreement before holders of General Unsecured Claims are paid in full, then BP shall pay such

Distributions to the Liquidation Trust and such amounts shall constitute Liquidation Trust Assets

(the “CBLIC Intercreditor Proceeds”).


25

BP is pursuing and attempting to collect on the Guaranties. BP shall, upon request in

writing by the Liquidation Trustee, provide status updates to the Liquidation Trustee with respect

to the pursuit and collection of the Guaranties. Each time BP receives proceeds on account of

the Guaranties (the “Guarantee Proceeds”), BP shall pay, without recoupment or offset, 10% of

the Guarantee Proceeds, net of any expenses incurred in the enforcement and collection thereof,

to the Liquidation Trust no later than fourteen (14) days after BP’s receipt of such Guarantee

Proceeds. The amount of Guarantee Proceeds transferred by BP to the Liquidation Trust shall

constitute Liquidation Trust Assets and shall not exceed $3 million (the “Maximum Guaranty

Proceeds”). If BP determines to cease pursuing enforcement and collection of the Guaranties

before the Maximum Guaranty Proceeds are transferred to the Liquidation Trust, BP shall notify

the Liquidation Trustee of its intention to do so and, if requested by the Liquidation Trustee,

shall cooperate with the Liquidation Trustee to enable it to take over pursuit of the Guaranties.

BP may settle the claims under the Guaranties in its absolute and sole discretion provided that it

gives prior notice to the Liquidation Trustee by providing an opportunity for the Liquidation

Trustee to consult with BP.

x. Class 2 (Allowed General Unsecured Claims)

Each holder of an Allowed General Unsecured Claim shall receive one or more

Distributions equal to its Pro Rata share of the General Unsecured Creditor Interests as such

Distributions become available as is reasonably practicable in the reasonable discretion of the

Liquidation Trustee. The Liquidation Trust, in the Liquidation Trustee’s discretion, shall make

periodic Distributions of available Cash from the Liquidation Trust Assets to the holders of

General Unsecured Creditor Interests at any time after the Effective Date.

xi. Class 3 (Allowed BP Deficiency Claim and Allowed BP Subordinated Claim)

Subject to the Section of the Plan related to the treatment of Prepetition CBLIC Claims,

outlined below, (i) the BP Deficiency Claim and the BP Subordinated Claim shall be deemed

Allowed and subordinated to Class 2 Allowed General Unsecured Claims, and (ii) after all

Allowed General Unsecured Claims are paid in full, each holder of an Allowed BP Deficiency

Claim and Allowed BP Subordinated Claim shall receive its Pro Rata share of the proceeds of

the Subordinated Creditor Fund as such funds become available as is reasonably practicable in

the reasonable discretion of the Liquidation Trustee.

xii. Class 4 (Allowed Prepetition CBLIC Claims)

Upon the consent of the holder(s) of the Prepetition CBLIC Claims, such Prepetition

CBLIC Claims shall be deemed subordinated to the Class 2 General Unsecured Claims pursuant

to Bankruptcy Code section 510(c) or recharacterized as equity, and any liens purportedly

securing such Claims shall be released on the Effective Date. Absent the consent of the holder(s)

of the Prepetition CLBIC Claims, the Debtors, BP, and the Committee (or after the Effective

Date, the Liquidation Trustee) shall cooperate in seeking subordination or recharacterization of

such claims. If the Prepetition CBLIC Claims are not subordinated or recharacterized as equity

as of the Effective Date and ultimately become Allowed Claims, such Claims shall be deemed


26

General Unsecured Claims and shall be treated in accordance with the Plan to the extent that

such General Unsecured Claims become Allowed General Unsecured Claims; provided,

however, that pursuant to Bankruptcy Code 510(a) and that certain Second Amended and

Restated Intercreditor Agreement by and among BP, CBLIC, the Subordinate Lienholders, and

certain of the Debtors, dated February 9, 2018, any Allowed Prepetition CBLIC Claims are

contractually subordinated to the Prepetition BP Secured Claim and the BP Subordinated Claim

and shall not receive any distributions on account of such claims until the BP Deficiency Claim

and the Allowed BP Subordinated Claim have been paid in full.

xiii. Class 5 (Interests)

No holder of an Interest shall be entitled to a Distribution under the Plan on account of

such Interest. On the Effective Date, all Interests shall be retired, cancelled, extinguished, and/or

discharged.

V. MEANS OF IMPLEMENTING THE PLAN

A. Joint Chapter 11 Plan

The Plan is a joint chapter 11 plan for each Debtors, with the Plan for each Debtor being

non-severable and mutually dependent on the Plan for each Debtor.

B. Substantive Consolidation of Claims Against Debtors for Plan Purposes Only

The Plan is premised on the substantive consolidation of all of the Debtors with respect to

the treatment of all Claims and Interests. The Debtors determined that the cost of performing a

separate analysis of the appropriate treatment of Claims and Interests for each Debtor would

have exceeded the benefit any individual creditor would have received from such analysis. The

Plan shall serve as a request by the Debtors, in lieu of a separate motion, to the Bankruptcy Court

that it grant substantive consolidation with respect to the treatment of all Claims and Interests as

follows. On the Effective Date, (a) all Assets and liabilities of the Debtors will, solely for voting

and Distribution purposes, be merged or treated as though they were merged; (b) all guarantees

of the Debtors of the obligations of any other Debtor and any joint or several liability of any of

the Debtors shall be eliminated; (c) each and every Claim or Interest against any Debtor shall be

deemed a single Claim against, and a single obligation of, the Debtors and all Claims filed

against more than one Debtor for the same liability shall be deemed one Claim against any

obligation of the Debtors; and (d) all transfers, disbursements, and Distributions on account of

Claims made by or on behalf of any of the Debtors’ Estates hereunder will be deemed to be made

by or on behalf of all of the Debtors’ Estates. Holders of Allowed Claims entitled to

Distributions under the Plan shall be entitled to their share of Assets available for Distribution to

such Claim without regard to which Debtor was originally liable for such Claim. Except as set

forth in the Plan, such limited substantive consolidation shall not (other than for purposes related

to the Plan) affect the legal and corporate structures of the Debtors.


27

C. Plan Funding Mechanism

The Plan shall be funded from the Effective Date Cash and any other Assets of the

Estates, except as expressly set forth herein.

D. Formation of the Liquidation Trust

On the Effective Date, the Liquidation Trust shall be formed pursuant to the Plan and

established and become effective in accordance with the Liquidation Trust Agreement to

liquidate the Liquidation Trust Assets, the Prepetition Collateral, and the Postpetition Collateral,

and to enable the Liquidation Trustee to distribute same in accordance with the Plan and the

Liquidation Trust Agreement. The Liquidation Trust shall be established for the sole purpose of

liquidating and distributing the Liquidation Trust Assets, the Prepetition Collateral, and the

Postpetition Collateral in accordance with Treasury Regulation section 301.7701-4(d), with no

objective to continue or engage in the conduct of a trade or business. On the Effective Date, the

Debtors shall transfer all of the Liquidation Trust Assets, the Prepetition Collateral, and the

Postpetition Collateral to the Liquidation Trust, subject only to the liens of Secured Creditors (as

may be modified in the Plan), and otherwise free and clear of liens, Claims, and Interests. On or

before the Effective Date, the Liquidation Trust Agreement shall be executed and, upon the

Effective Date, shall become effective without further action by any party.

The terms of the Liquidation Trust Agreement shall control as to all matters applicable to

the Liquidation Trust. To the extent there is any conflict between the Liquidation Trust

Agreement and the Plan, the Plan shall govern.

E. Establishment of Reserves and Escrow Accounts

(a) At least three (3) days prior to the Confirmation Hearing, the Debtors shall

file with the Bankruptcy Court a notice that reflects the proposed amounts of the Confirmation

Fund.

(b) Confirmation Fund. On the Effective Date, or as soon thereafter as is

practicable, the Liquidation Trustee shall establish the Confirmation Fund, which shall be funded

from the Effective Date Cash in an amount equal to the Confirmation Amount. The

Confirmation Fund shall be used to pay all Allowed Administrative Expense Claims, Allowed

Other Secured Claims, Allowed Priority Tax Claims, and Allowed Non-Tax Priority Claims.

Any amounts remaining in the Confirmation Fund, excluding the Initial Liquidation Trust

Funding and the GUC Budget Excess, after: (i) all Allowed Administrative Expense Claims,

Allowed Professional Fee Claims, Allowed Other Secured Claims, Allowed Priority Tax Claims,

and Allowed Non-Tax Priority Claims are satisfied in full; and (ii) the Disputed Confirmation

Reserve, the Professional Fee Escrow Account, the Disputed GUC Fund, and the Liquidation

Trust Expense Fund have been funded, shall become available for Distribution to the holder of

the Prepetition BP Secured Claim.

(c) Disputed Confirmation Reserve. As soon as practicable after the Effective

Date, the Liquidation Trustee shall establish the Disputed Confirmation Reserve, which shall be


28

funded on each Distribution Date from the Effective Date Cash in an amount equal to the

Distributions that would have been made to holders of Disputed Administrative Expense Claims,

Disputed Other Secured Claims, Disputed Priority Tax Claims, and Disputed Non-Tax Priority

Claims if such Claims were Allowed Claims in their full amounts or such lower amount as to

which the holder of such Claim has agreed in writing or, in the case where any such Claim is

unliquidated and/or contingent, the greater of (i) $1, and (ii) such other amount as is reserved by

order of the Bankruptcy Court made upon motion of the holder of such Claim. The Liquidation

Trustee shall remove funds from the Disputed Confirmation Reserve as Disputed Administrative

Expense Claims, Disputed Other Secured Claims, Disputed Priority Tax Claims, and Disputed

Non-Tax Priority Claims are resolved, which funds shall be distributed as provided in the Plan

(including with respect to any GUC Budget Excess), and any excess shall be returned to BP.

(d) Professional Fee Escrow Account. On the Effective Date, the Liquidation

Trustee shall establish a Professional Fee Escrow Account and shall fund such Professional Fee

Escrow Account with Effective Date Cash in an amount equal to the sum of the Professional Fee

Claims. The Professional Fee Escrow Account shall be maintained in trust for the Professionals.

Such funds shall not be considered property of the Debtors’ Estates and shall not vest with the

Liquidation Trustee or the Liquidation Trust. Any amounts remaining in the Professional Fee

Escrow Account after all Allowed Professional Fee Claims are paid shall become available for

Distribution to holders of Prepetition BP Secured Claim.

(e) Disputed GUC Fund. As soon as practicable after the Effective Date, the

Liquidation Trustee shall establish the Disputed GUC Fund, which shall be funded on each

Distribution Date from the Liquidation Trust Assets in an amount equal to the Distributions that

would have been made to holders of Disputed General Unsecured Claims if such Claims were

Allowed Claims or such lower amount as to which the holder of such Claim has agreed in

writing or, in the case where any such Claim is unliquidated and/or contingent, the greater of (i)

$1, and (ii) such other amount as is reserved by order of the Bankruptcy Court made upon

motion of the holder of such Claim. The Liquidation Trustee shall remove funds from the

Disputed GUC Fund as Disputed General Unsecured Claims are resolved, which funds shall be

distributed as provided in the Plan.

(f) Liquidation Trust Expense Fund. On the Effective Date, or as soon

thereafter as is practicable, the Liquidation Trustee shall establish the Liquidation Trust Expense

Fund, the funding of which may include any Liquidation Trust Assets; provided, however, that

the Liquidation Trust Expense Fund may not include more than $750,000 of the Initial

Liquidation Trust Funding. The Liquidation Trust Expense Fund shall be used to pay the

Liquidation Trust Expenses in accordance with the Liquidation Trust Agreement, including,

without limitation, costs and expenses of (i) counsel or other advisors retained by the Liquidation

Trustee, (ii) any liquidation or administration of the Liquidation Trust Assets, and (iii) the

prosecution of Causes of Action and Claims objections. Any amounts remaining in the

Liquidation Trust Expense Fund after all Liquidation Trust Expenses are paid shall become

available for Distribution to holders of Allowed General Unsecured Claims, the Allowed BP

Deficiency Claim, the Allowed BP Subordinated Claim, and any Allowed Prepetition CBLIC

Claims in the priority of payment provided for in accordance with the provisions of the Plan.


29

(g) Subordinated Creditor Fund. On the date upon which all unsubordinated

Allowed General Unsecured Claims have been satisfied in full, or as soon thereafter as is

reasonably practicable, the Liquidation Trustee shall establish the Subordinated Creditor Fund,

which shall be funded by the Liquidation Trust after satisfaction in full of all Allowed General

Unsecured Claims in accordance with the Plan. The Subordinated Creditor Fund shall be used to

pay the Allowed BP Deficiency Claim and the Allowed BP Subordinated Claim, in the priority

of payment provided for in accordance with the provisions of the Plan.

F. Powers and Duties of the Liquidation Trustee

As of the Effective Date, the Liquidation Trustee shall be appointed under Bankruptcy

Code section 1123(b)(3)(B) and shall serve in such capacity and shall have comparable authority

as a bankruptcy trustee of the Debtors as the exclusive representative of the Estates or any

corresponding provision of federal or state laws and shall succeed to all of the Debtors’ and

Estates’ rights. The powers, rights, and responsibilities of the Liquidation Trustee, all of which

shall arise upon the occurrence of the Effective Date, shall be specified in the Liquidation Trust

Agreement and shall include, but not be limited to:

(a) collecting and liquidating the Liquidation Trust Assets under the

jurisdiction of the Bankruptcy Court;

(b) using commercially reasonable efforts to obtain the return of the

Prepetition Collateral to BP;

(c) asserting, prosecuting, objecting to, pursuing, compromising, and settling

in accordance with the Liquidation Trustee’s reasonable business judgment, all matters affecting

the Estates, including, without limitation, Disputed Claims and/or other Causes of Action related

thereto, to the extent set forth in the Liquidation Trust Agreement and except as provided therein,

without further order of the Bankruptcy Court;

(d) asserting and enforcing all legal or equitable remedies and defenses

belonging to the Debtors or their Estates, including, without limitation, setoff, recoupment, and

any rights under Bankruptcy Code section 502(d);

(e) acting on behalf of the Debtors in all adversary proceedings and contested

matters then pending or that can be commenced in the Bankruptcy Court and in all actions and

proceedings pending or commenced elsewhere, and to settle, retain, enforce, dispute, or adjust

any Claim and otherwise pursue actions involving the Assets of the Debtors that could arise or be

asserted at any time under the Bankruptcy Code, unless otherwise waived, relinquished, or

transferred in the Plan;

(f) taking such actions the Liquidation Trustee deems appropriate in his or her

reasonable business judgment against any Person with respect to a Claim or Cause of Action and

commencing any process or proceeding in the Bankruptcy Court or in any court of competent

jurisdiction in accordance with applicable laws, to the extent set forth in the Liquidation Trust

Agreement;


30

(g) making Distributions to holders of all Allowed Claims, including

Professional Fee Claims, in accordance with the Plan and Liquidation Trust Agreement;

(h) proceeding with and employing all discovery devices permitted under

applicable law, including Rule 2004 of the Bankruptcy Rules, in order to investigate any Claims

or Causes of Action;

(i) employing, without further order of the Bankruptcy Court, professionals

or other Persons to assist it in carrying out its duties hereunder and under the Liquidation Trust

Agreement, and compensating and reimbursing the expenses of those professionals and other

Persons on the terms to be agreed to by the Liquidation Trustee and such professionals and other

Persons without further order of the Bankruptcy Court, to the extent set forth in the Liquidation

Trust Agreement;

(j) investing Cash in accordance with Bankruptcy Code section 345,

withdrawing and making Distributions of Cash to holders of Allowed Claims and paying taxes

and other obligations owed by the Debtors or incurred by the Liquidation Trustee from the

Liquidation Trust Expense Fund in accordance with the Plan;

(k) coordinating the turnover of property, if any, subject to rejected executory

contracts or abandonment or liquidation of any retained Assets and disposing of, and delivering

title to others of, or otherwise realizing value of, all the remaining Assets;

(l) overseeing compliance with the Debtors’ accounting, finance, and

reporting obligations and the filing of final tax returns, refund requests, audits, and other

corporate dissolution documents, if required;

(m) preparing financial statements and U.S. Trustee post-confirmation

quarterly reports, until such time such time as the Bankruptcy Court enters an order (i)

dismissing the Bankruptcy Cases, (ii) converting the Bankruptcy Cases to a case under chapter 7

of the Bankruptcy Code, or (iii) approving a final decree closing the Bankruptcy Cases;

(n) paying all other expenses for winding down the affairs of the Debtors in

accordance with a wind down budget or as otherwise agreed to by the Liquidation Trustee, and

in the event of a dispute that cannot be resolved, resolving such dispute in the Bankruptcy Court,

subject to the terms of the Plan;

(o) executing and delivering all documents, and taking all actions, necessary

to consummate the Plan, implement the Liquidation Trust Agreement, and wind down the

Debtors’ business;

(p) implementing and/or enforcing all provisions of the Plan;

(q) asserting and/or waiving, as the Liquidation Trustee deems appropriate,

any attorney-client privilege or similar privilege belonging to any of the Debtors immediately

prior to the Effective Date of the Plan; and


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(r) such other powers as may be vested in or assumed by the Liquidation

Trustee pursuant to the Liquidation Trust Agreement, Plan, other Bankruptcy Court order, or as

may be needed or appropriate to carry out the provisions of the Plan and Liquidation Trust

Agreement.

G. Appointment of the Liquidation Trustee

The Liquidation Trustee shall be deemed the Estates’ sole representative in accordance

with Bankruptcy Code section 1123 and shall have all powers, authority, and responsibilities

specified in the Plan including, without limitation, the powers of a trustee under Bankruptcy

Code sections 704 and 1106.

H. Issuance of General Unsecured Creditor Interests

(a) General Unsecured Creditor Interests. On the Effective Date or as soon as

practicable thereafter, the Debtors shall deliver to the Liquidation Trustee a list of each Person to

receive General Unsecured Creditor Interests as of the Effective Date pursuant to the Plan,

including the Allowed amounts of the Claims of, and the address of, each such Person.

(b) Transfer of General Unsecured Creditor Interests. The Liquidation Trustee

shall maintain a register of the holders of General Unsecured Creditor Interests and shall adjust,

without further order of the Bankruptcy Court, the register from time to time as General

Unsecured Claims that are Disputed Claims become Allowed. Upon notice to the Liquidation

Trustee by any holder of a General Unsecured Creditor Interest, the Liquidation Trustee shall

amend the register to reflect any transfer of a General Unsecured Creditor Interest by such holder

to a transferee as set forth in the notice; provided, however, that the Liquidation Trustee need

not reflect any transfer (or make any distribution to any transferee) and will give notice to

such holder that no transfer has been recognized in the event the Liquidation Trustee

reasonably believes that such transfer (or the distribution to such transferee) may

constitute a violation of applicable laws or might cause the Liquidation Trust to be

required to register the General Unsecured Creditor Interests, or to become a reporting

company, under the Securities Exchange Act of 1934, as amended.

I. Liquidation Trustee Reporting

The Liquidation Trustee shall prepare and file with the Court, and serve upon BP and the

U.S. Trustee, such reports as are required under the Plan, including quarterly reports, beginning

with the first full calendar quarter after the Effective Date, regarding the liquidation or other

administration of the Assets of the Estates, Distributions made by the Liquidation Trustee, and

the status of the prosecution or settlement of any Claims and Causes of Action. The Liquidation

Trustee shall pay fees of the U.S. Trustee as provided in the Plan.

J. Fees and Expenses of the Liquidation Trustee

Except as otherwise ordered by the Bankruptcy Court or specifically provided for in the

Plan, the amount of Liquidation Trust Expenses and any compensation and expense


32

reimbursement Claims (including, without limitation, reasonable fees and expenses of counsel)

of the Liquidation Trustee arising out of the liquidation of the Assets of the Estates, the making

of Distributions under the Plan, and the performance of any other duties given to it shall be paid

from the Liquidation Trust Expense Fund and in accordance with the Liquidation Trust

Agreement; provided, however, that any fees or expenses (including legal) incurred by the

Liquidation Trustee in connection with collecting or recovering any Prepetition Collateral will be

netted against the proceeds collected therefrom.

K. Resignation or Removal of Liquidation Trustee

If the Liquidation Trustee resigns or is removed, dissolves, or is incapacitated, the terms

of the Liquidation Trust Agreement shall govern regarding the designation of a successor

Liquidation Trustee, and following such designation, the successor Liquidation Trustee, without

further act, shall become fully vested with all of the rights, powers, duties, and obligations of his

or her predecessor, with the same compensation of the predecessor Liquidation Trustee. No

successor Liquidation Trustee shall in any event have any liability or responsibility for the acts

or omissions of any of his or her predecessors.

L. Reliance on Documents

The Liquidation Trustee may rely, and shall be protected in acting or refraining from

acting, upon any certificates, opinions, statements, instruments or reports believed by it to be

genuine and to have been signed or presented by the proper entity, including, without limitation,

claims lists and data provided to the Liquidation Trustee by the Claims Agent, the Debtors, or the

Debtors’ financial advisor, upon which the Liquidation Trustee shall base Distributions.

M. Corporate Action

The Plan will be administered by the Liquidation Trustee and all actions taken under the

Plan in the name of the Debtors shall be taken through the Liquidation Trustee in accordance

with the provisions of the Plan and the Liquidation Trust Agreement.

N. Liquidation and Dissolution of Debtors

On the Effective Date, without the necessity for any other or further action to be taken by

or on behalf of the Debtors, and upon the transfer of the Liquidation Trust Assets to the

Liquidation Trust and the Prepetition Collateral to BP in accordance with the Plan, the members

of the board of directors or managers, as the case may be, and the respective officers, of each of

the Debtors shall be deemed to have been removed, and each such Debtor shall be deemed

dissolved for all purposes unless the Liquidation Trustee determines that dissolution can have

any adverse impact on the Liquidation Trust Assets, the Prepetition Collateral, and the

Postpetition Collateral; provided, however, that neither the Debtors nor any party released

pursuant to the Plan shall be responsible for any liabilities that may arise as a result of non-

dissolution of the Debtors.


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O. Dissolution of Creditors’ Committee

On the Effective Date, the Creditors’ Committee shall be deemed to be dissolved and the

members of the Creditors’ Committee shall be released and discharged from all further authority,

duties, responsibilities, and obligations arising from or related to the Bankruptcy Cases and

Professionals retained by the Committee shall be released and discharged from all further

authority, duties, responsibilities, and obligations relating to the Debtors and the Bankruptcy

Cases; provided, however, that the foregoing shall not apply to any matters concerning (a) any

Professional Fee Claims held or asserted by any Professional retained by the Committee or

reimbursement of any reasonable and documented expenses of the Committee’s members

incurred in their capacity as such, (b) any appeal from the Confirmation Order, or (c) the

withdrawal of the Standing Motion pursuant to the Plan.

P. Closing of the Bankruptcy Cases

At such time as the Liquidation Trustee deems appropriate and in accordance with

Bankruptcy Code section 350(a) and Bankruptcy Rule 3022, the Liquidation Trustee shall seek

authority from the Bankruptcy Court to close the Bankruptcy Cases. Unless the Bankruptcy

Court orders otherwise, within fourteen (14) days after the Estates are fully administered, the

Liquidation Trustee will file and serve upon the U.S. Trustee a closing report substantially in the

form available on the Bankruptcy Court’s website in accordance with Rule 3022-1 of the Local

Bankruptcy Rules for the Southern District of New York.

Q. Plan Distributions

After the Effective Date, and subject to the establishment and funding of the Liquidation

Trust, the Confirmation Fund, Liquidation Trust Expense Fund, and Confirmation Reserve under

the Plan, Distributions shall be made by the Liquidation Trustee in accordance with the Plan.

R. Preservation and Abandonment of Records

The Debtors shall preserve for the benefit of the Liquidation Trustee all Retained

Information. After the Effective Date, the Liquidation Trustee shall preserve the Retained

Information until the date that is at least one (1) year following the closing of the Bankruptcy

Cases. On the Effective Date, the Debtors shall be permitted to abandon (with or without

destruction) any information that is not Retained Information.

S. General Disposition of Assets

Pursuant to Bankruptcy Code section 1123(a)(5) and subject to the terms of the Plan, as

soon as is reasonably practicable after the Effective Date, the Liquidation Trustee shall sell or

otherwise dispose of, and liquidate to or otherwise convert to Cash, any non-Cash Assets in such

manner as the Liquidation Trustee shall determine in his judgment in consultation with the

Secured Creditors (to the extent any such Assets are collateral of the Secured Creditors), but in

no event shall the Liquidation Trustee be prevented from returning Assets that are collateral of a

Secured Creditor to such Secured Creditor in a commercially reasonable manner.


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T. Final Administrative Expense Claims Bar Date

The Confirmation Order shall establish that requests for payment of Administrative

Expense Claims that were not required to be filed and served by the First Administrative

Expense Claim Bar Date (or any other subsequent bar date established by the Bankruptcy Court

for Administrative Expense Claims), other than:

(a) an Administrative Expense Claim that has become an Allowed Administrative

Expense Claim on or before the Effective Date;

(b) an Administrative Expense Claim on account of fees and expenses incurred on or

after the Petition Date by ordinary course professionals retained by the Debtor pursuant to an

order of the Bankruptcy Court; or

(c) an Administrative Expense Claim arising out of the employment by the Debtor of

an individual in the ordinary course of business from and after the Petition Date, but only to the

extent that such Administrative Expense Claim is solely for outstanding wages, commissions,

accrued benefits, or reimbursement of business expenses;

must be filed and served on or before 5:00 p.m. (prevailing Eastern Time) on or before the

first Business Day after the fourteenth (14th) day after the Confirmation Date (the “Final

Administrative Expense Claims Bar Date”).

Objections, if any, to a timely request for payment of an Administrative Expense Claim

must be filed and served on the Liquidation Trustee and the requesting party no later than

ninety (90) days after the Effective Date.

No payment or Distributions will be made on account of any Administrative Expense

Claim until such Claim becomes an Allowed Claim. Any Person asserting an Administrative

Expense Claim that was subject to the First Administrative Expense Claim Bar Date that did not

timely file and serve an application or motion seeking approval of such Administrative Expense

Claim shall be forever barred from asserting any such right to payment as against the Debtors,

the Estates, and the Liquidation Trust. Any Person asserting an Administrative Expense Claim

not subject to the First Administrative Expense Claim Bar Date that fails to file and serve an

application or motion seeking approval of the Administrative Expense Claim on or before the

Final Administrative Expense Claims Bar Date shall be forever barred from asserting any such

right to payment as against the Debtors, the Estates, and the Liquidation Trust.

U. Deadline for Filing Applications for Professional Fee Claims

All parties seeking payment of Professional Fee Claims must file with the Bankruptcy

Court a final application and/or an application for payment of reasonable fees and expenses

under Bankruptcy Code section 503(b), as applicable, on or before the first Business Day after

the thirtieth (30th) day after the Effective Date (the “Fee Application Deadline”). Any

Professional failing to file and serve such final application or 503(b) motion on or before the Fee

Application Deadline shall be forever barred from asserting any such right to payment against


35

the Debtors or the Estates. Objections to such Professional Fee Claims, if any, must be filed and

served no later than fifty (50) days after the Effective Date.

V. Execution of Documents to Effectuate Plan

From and after the Effective Date, the Liquidation Trustee shall have the exclusive power

and authority to execute any instrument or document to effectuate the provisions of the Plan.

Entry of the Confirmation Order shall authorize the Debtors and the Liquidation Trustee to take,

or cause to be taken, all actions necessary or appropriate to consummate and implement the

provisions of the Plan.

W. Disallowance of Claims Without Further Order of the Court

As of the Effective Date, any Scheduled Claim designated as disputed, contingent, or

unliquidated in amount and for which a proof of Claim has not been filed by the Creditor by the

applicable Bar Date shall be deemed Disallowed and expunged. All Scheduled Claims that

correspond to a proof of Claim filed by a particular Creditor by the applicable Bar Date shall be

deemed to have been superseded by such later filed proof of Claim, and the Scheduled Claim,

regardless of priority, shall be expunged from the Claims register; provided however, that such

proofs of Claim shall be subject to objection in accordance with the Plan.

X. Post-Effective Date Reports and Fees

Following the Effective Date and until the Bankruptcy Cases are closed, not less than

once every one-hundred and eighty (180) days, the Liquidation Trustee shall be responsible for

the filing of all post-Effective Date reports required during such periods with the U.S. Trustee

regarding the liquidation or other administration of property under the Liquidation Trustee’s

control pursuant to the Plan, Distributions made by the Liquidation Trustee, and other matters

required to be included in such report, and shall pay from the Liquidation Trust Expense Fund all

post-Effective Date Statutory Fees. Notwithstanding any substantive consolidation of the

Debtors under the Plan, each and every Debtor and the Liquidation Trustee shall remain

obligated to pay Statutory Fees to the U.S. Trustee until the particular Debtor’s case has been

closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code.

Y. Cancellation of Notes, Instruments, Certificates, and Other Documents

Except as expressly provided herein, on the Effective Date, all notes, instruments,

certificates evidencing debt of, or Interests in, the Debtors and any warrants, options, and other

entitlements to purchase and/or receive Interests in the Debtors, shall be deemed surrendered and

cancelled and any obligation of the Debtors thereunder shall be discharged; provided, however,

that the liens in favor of BP under the Final DIP Order and the Prepetition BP Secured Loan

Documents shall remain attached and fully perfected against the Postpetition Collateral and the

Prepetition Collateral (other than the Liquidation Trust Assets) until the repayment in full of the

DIP Financing Claims and the return of the Postpetition Collateral and the Prepetition Collateral

(other than the Liquidation Trust Assets) to BP.


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Z. Insurance Preservation

Nothing in the Plan, the Confirmation Order, or the Liquidation Trust Agreement, alters

the rights and obligations of the Debtors (and their Estates) and the Debtors’ insurers (and third-

party claims administrators) under the Insurance Policies or modifies the coverage or benefits

provided thereunder or the terms and conditions thereof or diminishes or impairs the

enforceability of the Insurance Policies. All of the Debtors’ rights and their Estates’ rights under

any Insurance Policy to which the Debtors and/or the Debtors’ Estates may be beneficiaries shall

vest with the Liquidation Trust for the benefit of the Beneficiaries of the Liquidation Trust and

all of the beneficiaries of such policies. For the avoidance of doubt, the Debtors are deemed to

have assumed all of the Insurance Policies.

AA. Preservation of Causes of Action

Except as otherwise provided in the Plan or in any contract, instrument, release, or

agreement entered into in connection with the Plan and the Final DIP Order, in accordance with

Bankruptcy Code section 1123(b), all Claims and Causes of Action that the Debtors or Estates

may have against any Person or Entity are preserved and transferred to the Liquidation Trustee

on the Effective Date, including, without limitation, any and all Causes of Action the Debtors,

Estates, or other appropriate party in interest may assert under Bankruptcy Code sections 502,

510, 522(f), 522(h), 542, 543, 544, 545, 547, 548, 549, 550, 551, 553 and 724(a).

BB. Section 1146 Exemption from Certain Taxes and Fees

Pursuant to and to the extent set forth in Bankruptcy Code section 1146(a), any issuance,

transfer, or exchange of a security, or the making or delivery of an instrument of transfer of

property, pursuant to or in connection with the Plan shall not be subject to any Stamp or Similar

Tax or governmental assessment in the United States or by any other Governmental Unit, and the

Confirmation Order shall direct the appropriate federal, state or local (domestic or foreign)

governmental officials or agents to forgo the collection of any such Stamp or Similar Tax or

governmental assessment and to accept for filing and recordation instruments or other documents

evidencing such action or event without the payment of any such Stamp or Similar Tax or

governmental assessment. Such exemption specifically applies, without limitation, to all actions,

agreements and documents necessary to evidence and implement the provisions of, transactions

contemplated by and the distributions to be made under the Plan.

CC. Withdrawal of the Standing Motion

Within three (3) business days after the Effective Date, the Committee shall file a notice

of withdrawal of the Standing Motion.

DD. Settlement Pursuant to Bankruptcy Rule 9019

Pursuant to Bankruptcy Code section 1123 and Bankruptcy Rule 9019, the Plan

incorporates a compromise and settlement of various potential Claims and Causes of Action,

including those for which the Committee sought standing to bring pursuant to the Standing


37

Motion. The settlement of those potential Claims and Causes of Action is a cornerstone of the

Plan and necessary to achieve a beneficial and efficient resolution of the Chapter 11 Cases for all

parties in interest. The Plan shall be deemed to constitute a motion pursuant to Bankruptcy Rule

9019, seeking approval of a settlement, and the entry of the Confirmation Order shall constitute

the Bankruptcy Court’s approval of such motion, and the Bankruptcy Court’s findings shall

constitute its determination that such compromises and settlements encompassed in the Plan are

within the range of reasonableness, in the best interests of the Debtors, their Estates, their

Creditors, and other parties-in-interest, and fair and equitable.

EE. Return of Deposits

Unless the Debtors have agreed otherwise in a written agreement or stipulation approved

by the Bankruptcy Court, all security deposits, including Posted Collateral, provided by the

Debtors to any Entity at any time, to the extent not returned to the Debtors prior to the Effective

Date, shall be returned to the Liquidation Trustee as set forth in agreements between the Debtors

and the Entities holding such security deposits or under applicable law, without deduction or

offset of any kind.

VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

All executory contracts and unexpired leases of the Debtors shall be deemed rejected as

of the Effective Date, unless a particular executory contract or unexpired lease (i) has previously

been assumed or rejected pursuant to an order of the Bankruptcy Court or applicable provisions

of the Bankruptcy Code, (ii) has expired or otherwise terminated pursuant to its terms, or (iii) is

the subject of a separate assumption motion filed by one of the Debtors (with the consent of the

Committee and BP) under Bankruptcy Code section 365.

Any party to an executory contract or unexpired lease that is rejected in accordance with

the Plan shall file a proof of Claim for damages from such rejection no later than thirty (30)

days after the Effective Date. The failure to timely file a proof of Claim shall be deemed a

waiver of any Claim in connection with the rejection of such contract or lease.

VII. CONDITIONS PRECEDENT; CONFIRMATION AND EFFECTIVE DATE

A. Conditions Precedent to Plan Confirmation

The following conditions must be satisfied or waived by the Debtors, with the consent of

BP and the Committee, in accordance with the Plan on or before the Confirmation Date:

(a) The Disclosure Statement Order shall have been entered by the Bankruptcy

Court and shall have become a Final Order; and

(b) The Confirmation Order to be entered by the Bankruptcy Court shall

contain provisions that, among other things: (i) authorize the implementation of the Plan in

accordance with its terms; (ii) approve in all respects the other settlements, transactions, and

agreements to be effectuated under the Plan; (iii) find that the Plan complies with all applicable


38

provisions of the Bankruptcy Code, including that the Plan was proposed in good faith and that

the Confirmation Order was not procured by fraud; (iv) order that the Assets of the Estates are

transferred to the Liquidation Trustee on the Effective Date, free and clear of all Claims, liens,

Encumbrances and interests of any Entity except for the liens and security interests of the

Secured Creditors; and (v) order that the Liquidation Trustee is authorized to take any and all

action necessary or appropriate to perform his duties hereunder.

B. Conditions Precedent to the Effective Date

The Effective Date shall not occur and no obligations under the Plan shall come into

existence unless each of the following conditions is met or, alternatively, is waived in accordance

with the Plan:

(a) The conditions precedent to Plan Confirmation in the Plan shall have

been satisfied or waived;

(b) The Confirmation Order shall have become a Final Order and such order

shall not have been amended, modified, vacated, stayed, or reversed;

(c) All requisite filings with governmental authorities and third parties, to the

extent required, shall have become effective;

(d) All documents contemplated by the Plan to be executed and delivered on

or before the Effective Date shall have been executed and delivered;

(e) The Liquidation Trustee shall have been designated by the Committee,

after consultation with BP, and shall be empowered to take all actions as contemplated by the

Plan and the Liquidation Trustee Agreement;

(f) The Confirmation Fund, Professional Fee Escrow Account, Initial

Liquidation Trust Funding, Liquidation Trust Expense Fund, and Disputed Confirmation Reserve

shall be fully funded as may be applicable; and

(g) The Confirmation Amount minus (i) the Initial Liquidation Trust Funding

and (ii) the GUC Budget Excess shall not exceed the aggregate budgeted amount of

disbursements for Allowed Administrative Expense Claims, Allowed Priority Tax Claims,

Allowed Non-Tax Priority Claims, Professional Fee Claims, and Allowed Other Secured Claims

as set forth in the Approved Budget.

C. Waiver of Conditions Precedent

Each condition precedent in the Plan, except the condition precedent in Section (b)

above, may be waived or modified by the Debtors, with the written consent of BP and the

Committee, without further Court approval, in whole or in part. The condition precedent in

Section (b) above shall be waived or modified by the Debtors, upon written direction from BP

and the Committee, without further Court approval.


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VIII. INJUNCTIONS; STAYS; RELEASE; EXCULPATIONS

A. General Injunctions

As set forth in Article 8 of the Plan, the following provisions shall apply and shall be

fully set forth in the Confirmation Order.

i. Injunctions Against Interference with Consummation or Implementation of

Plan

All holders of Claims or Interests shall be enjoined from commencing or continuing

any judicial or administrative proceeding or employing any process against any of the

Debtors or the Estates with the intent or effect of interfering with the consummation or

implementation of the Plan or the transfers, payments or Distributions to be made

hereunder.

ii. Plan Injunction

Except as otherwise specifically provided for by the Plan, on and after the

Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment,

collection, or recovery by any manner or means of any judgment, award, decree, or

order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii)

the commencement or continuation of any action, employment of process or act to

collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined

under the Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation,

or subrogation of any kind, in each case against the Debtors or the Estates to the fullest

extent authorized or provided by the Bankruptcy Code.

iii. No Bar To Claims Against Third Parties

Holders of Claims or Interests against the Debtors are not barred or otherwise

enjoined by the Plan from pursuing any recovery against Persons that are not the

Debtors, except as set forth in this Article 8 of the Plan.

B. All Distributions Received in Full and Final Satisfaction

Except as otherwise set forth in the Plan, all payments and all Distributions to be made in

accordance with the Plan on account of Claims (including Administrative Expense Claims) shall

be received in full and final satisfaction, settlement and release of the Estates’ obligations for

such Claims as against the Debtors and their property and the Estates.

C. No Modification of Res Judicata Effect

No provision of the Plan is intended or shall be construed to modify the res judicata

effect of any order entered in the Bankruptcy Cases, including, without limitation, the


40

Confirmation Order and any order finally determining Professional Fee Claims to any

Professional.

D. Exculpation for Debtors, Committee, and Estate Professionals

To the extent permitted by Bankruptcy Code section 1125(e), the Debtors, their

equity holders, officers, directors, employees and Professionals (including the professional

firms and individuals within such firms), and the Committee and its members (acting in

such capacity), their respective officers, directors, employees and Professionals (including

professional firms and individuals within such firms) shall neither have nor incur any

liability to any Person for any act taken or omitted to be taken in connection with or

related to the formulation, preparation, dissemination, implementation, administration,

funding, confirmation or consummation of the Plan, the Disclosure Statement, or any

contract, instrument, release or other agreement or document created or entered into in

connection with the Plan, or any act taken or omitted to be taken during the Bankruptcy

Cases, except for acts or omissions as a result of willful misconduct or gross negligence as

determined by a Final Order of a court of competent jurisdiction, and in all respects shall

be entitled to rely reasonably upon the advice of counsel with respect to their duties and

responsibilities under the Plan. From and after the Effective Date, a copy of the

Confirmation Order and the Plan shall constitute, and may be submitted as, a complete

defense to any Claim or liability released under the Plan.

E. Exculpation for Liquidation Trustee

The Liquidation Trustee and its employees, attorneys, accountants, financial

advisors, representatives and agents, and the Oversight Committee, each solely in such

capacity, shall not have or incur any liability to any person or entity for any act or omission

in connection with, or arising out of, the Plan or the property to be distributed under the

Plan, except for acts or omissions as a result of willful misconduct or gross negligence as

determined by a Final Order of a court of competent jurisdiction.

F. Releases by the Debtors

Effective as of the Effective Date, without in any manner limiting or altering any

releases granted to the Postpetition Secured Party and Senior Lien Secured Party under

the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective

affiliates, and each of their respective former, current, or future officers, employees,

directors, agents, representatives, owners, members, partners, financial advisors, legal

advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and

predecessors in interest, for good and valuable consideration provided by each of the

Released Parties, shall be deemed to provide a full release to each of the Released Parties

(and each such Released Party shall be deemed released by each Debtor and its Estate) and

their respective property from any and all Causes of Action and any other debts,

obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities

whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the


41

Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of

federal or state securities laws, or otherwise, based in whole or in part upon any act or

omission, transaction, or other occurrence or circumstance existing or taking place prior to

or on the Effective Date arising from or related in any way to the Debtors, the Plan,

Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the

Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien

Transaction Documents (as defined in the Final DIP Order) or any matters arising under

or in connection with the same, including those that the Debtors would have been legally

entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any

other Entity could have been legally entitled to assert derivatively or on behalf of the

Debtors or their Estates; provided, however, that the foregoing Debtor Release shall not

operate to waive or release any Claims or Causes of Action of the Debtors or their Estates

for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt,

any Claims in respect of Avoidance Actions against the Released Parties shall be released.

Nothing in the foregoing shall result in any current directors and officers of the Debtors

waiving any indemnification Claims against the Debtors or any of their insurance carriers

or any rights as beneficiaries of any insurance policies.

Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,

pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference

each of the related provisions and definitions contained in the Plan, and further, shall

constitute the Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for

the good and valuable consideration provided by the Released Parties; (2) a good-faith

settlement and compromise of the Claims released by the Debtor Release; (3) in the best

interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable,

and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a

bar to any of the Debtors’ Estates or the Liquidation Trustee asserting any Claim or Cause

of Action released under the Debtor Release.

G. Releases by Releasing Parties

Effective as of the Effective Date, the Releasing Parties shall be deemed to provide a

full release to the Released Parties and their respective property from any and all Causes of

Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims,

remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen,

existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract,

violations of federal or state securities laws, or otherwise, based in whole or in part upon

any act or omission, transaction, or other occurrence or circumstance existing or taking

place prior to or on the Effective Date arising from or related in any way to the Debtors,

the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases,

the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior

Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising

under or in connection with the same, including those that the Debtors would have been

legally entitled to assert or that any holder of a Claim against or Interest in the Debtors or


42

any other Entity could have been legally entitled to assert derivatively or on behalf of the

Debtors or their Estates.


pursuant to Bankruptcy Rule 9019, of the Third Party Release, which includes by reference


constitute the Bankruptcy Court’s finding that the Third Party Release is: (1) in exchange

for the good and valuable consideration provided by the Released Parties; (2) a good-faith

settlement and compromise of the Claims released by the Third Party Release; (3) in the

best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair,

equitable, and reasonable; (5) given and made after due notice and opportunity for

hearing; and (6) a bar to any of the Releasing Parties asserting any Claim released under

the Third Party Release.

Nothing in this Section shall release any right or obligation of any party under any

other provision of the Plan or the Confirmation Order.

IX. PROVISIONS GOVERNING DISTRIBUTIONS

Article 9 of the Plan establishes the procedures and guidelines for Distributions to be

made to the terms of the Plan to the holders of Claims, including the timing, procedures and

notice provisions related to same. Distributions shall be made by the Liquidation Trustee as

follows.

A. Payments in U.S. Dollars

All Cash payments required under the Plan shall be made in U.S. dollars by checks drawn

on a domestic bank selected by the Liquidation Trustee in accordance with the Plan or by wire

transfer from a domestic bank, at the option of the Liquidation Trustee. The Liquidation Trustee

may use the services of a third party to aid in the Distributions required to be made under the

Plan.

B. Distributions Only on Business Days

Notwithstanding the foregoing provisions, if any Distribution under the Plan is due on a

day other than a Business Day, such Distribution shall instead be made on the next Business

Day.

C. Unclaimed Distributions

Unclaimed Distributions shall be canceled (by a stop payment order or otherwise), the

Claim(s) relating to such Distribution(s) shall be deemed forfeited and expunged without any

further action or order of the Bankruptcy Court, and the holder of such Claim(s) shall be

removed from the Distribution schedules and expunged from the Claims register and shall

receive no further Distributions under the Plan. Any such Unclaimed Distributions shall, as soon

as is practicable, be redistributed pursuant to the provisions of the Plan.


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D. Timing of Distributions Generally

The first Distribution shall occur as soon as practicable on or after the Effective Date. To

the extent subsequent Distributions are necessary, such subsequent Distributions shall occur as

soon after the first Distribution Date as the Liquidation Trustee shall reasonably determine is

appropriate in light of (i) the amount of Cash on hand; (ii) the amount and nature of Disputed

Claims; (iii) the activities to be accomplished, including their anticipated duration and costs; (iv)

the length of time since any prior Distribution; and (v) the costs of effecting any interim

Distribution.

E. Timing of Distributions on Disputed Claims Subsequently Allowed

If a Disputed Claim is Allowed, in whole or in part, after the Effective Date, a

Distribution shall be made on account of such Allowed Claim on the next Distribution Date that

is at least fifteen (15) Business Days after such Claim is Allowed.

F. No Payment or Distribution of Disputed Claims

Any contrary provision hereof or of the Plan notwithstanding, no payments or other

Distributions shall be made on account of any Disputed Claim, or any portion thereof, unless and

until such Claim is Allowed by Final Order. For the avoidance of doubt, no portion of any

Disputed Claim is entitled to a Distribution. Holders of Disputed Claims shall be bound,

obligated and governed in all respects by the Plan’s provisions.

G. Disputed Distribution

If a dispute arises as to the identity of a holder of an Allowed Claim who is to receive a

Distribution, the Liquidation Trustee may, in lieu of making such Distribution to such holder,

hold such amount until the dispute is resolved by Final Order or by written agreement among the

parties to such dispute.

H. Transmittal of Payments and Notices

All Distributions shall be made to the holder of a Claim by regular first-class mail,

postage prepaid, in an envelope addressed to such holder at the address listed on its proof of

Claim filed with the Claims Agent or Bankruptcy Court or, if no proof of Claim was filed, (i) at

the address listed on the Debtors’ Schedules, or (ii) at such address that a holder of a Claim

provides to the Debtors and the Liquidation Trustee after the Effective Date in writing and files

at least fifteen (15) Business Days prior to a Distribution Date. Neither the Debtors nor the

Liquidation Trustee shall have any duty to ascertain the mailing address of any holder of a Claim

other than as set forth in the Plan. The date of payment or delivery shall be deemed to be the

date of mailing. Payments made in accordance with the Plan shall be deemed made to the holder

regardless of whether such holder actually receives the payment.


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I. Record Date for Distributions

Except as otherwise provided in a Final Order, transferees of Claims that are transferred

pursuant to Bankruptcy Rule 3001 with appropriate filings made on or before the Effective Date

(the “Record Date”) shall be treated as the holders of those Claims for all purposes,

notwithstanding that any period provided by Bankruptcy Rule 3001 for objecting to the

transfer(s) may not have expired prior to the Record Date. The Debtors and the Liquidation

Trustee shall have no obligation to recognize any transfer of any Claim occurring after the

Record Date. In making a Distribution with respect to any Claim, the Debtors and the

Liquidation Trustee shall be entitled to recognize and deal for all purposes hereunder only with

the Person who is listed on the proof of Claim filed with respect to such Claim, on the Debtors’

Schedules as the holder thereof, and upon such other evidence or record of transfer or assignment

filed as of the Record Date.

J. Claims Administration Responsibility

(a) Reservation of Rights. Unless a Claim is specifically Allowed prior to or after the

Effective Date or under the Plan, the Liquidation Trustee reserves any and all objections to any

and all Claims and motions or requests for the payment of Claims, whether administrative

expense, secured or unsecured, including, without limitation, any and all objections to the

validity or amount of any and all alleged DIP Financing Claims, Administrative Expense Claims,

Priority Tax Claims, or Non-Tax Priority Claims, liens and security interests, whether under the

Bankruptcy Code, other applicable law or contract. The failure to object to any Claim prior to

the Effective Date shall be without prejudice to the Liquidation Trustee’s rights to contest or

otherwise defend against such Claim in the Bankruptcy Court when and if such Claim is sought

to be enforced by the holder of the Claim.

(b) Objections to Claims. The Liquidation Trustee may dispute, object to,

compromise, or otherwise resolve all Claims. Unless otherwise provided in the Plan or ordered

by the Bankruptcy Court, all objections to Claims shall be filed and served no later than the

Claims Objection Bar Date, provided that the Liquidation Trustee may request (and the

Bankruptcy Court may grant) an extension of time by filing a motion with the Bankruptcy Court.

(c) Filing Objections. An objection to a Claim shall be deemed properly served on

the claimant if Liquidation Trustee causes service of any such objection to be effected in

accordance with Bankruptcy Rule 3007 by mailing or otherwise delivering the objection and a

notice of hearing thereon to the claimant at the address set forth on such claimant’s proof of

Claim at least thirty (30) days prior to the hearing thereon.

(d) Determination of Claims. Except as otherwise agreed by the Debtors, any Claim

as to which a proof of Claim or motion or request for payment was timely filed in the

Bankruptcy Cases may be determined and liquidated after the Effective Date pursuant to (i) a

Final Order, or (ii) applicable non-bankruptcy law. Any Claim determined to be an Allowed

Claim after the Effective Date shall be treated as an Allowed Claim in accordance with the Plan.


45

K. Disputed Claims

(a) For purposes of effectuating the provisions of the Plan and the Distributions to

holders of Allowed Claims, the Bankruptcy Court, on or prior to the Effective Date, or thereafter

upon the request of any holder of a Claim or the Liquidation Trustee, may liquidate the amount

of Disputed Claims pursuant to Bankruptcy Code section 502(c), in which event the amounts so

fixed or liquidated shall be deemed to be the aggregate amounts of the Disputed Claims under

Bankruptcy Code section 502(c) for purposes of Distribution under the Plan and for purposes of

the Disputed Confirmation Reserve and Disputed GUC Fund.

(b) When a Disputed Claim becomes an Allowed Claim, there shall be distributed to

the holder of such Allowed Claim, in accordance with the provisions of the Plan (but in no event

later than the next succeeding Distribution Date), Cash in the amount of all Distributions to

which such holder would have been entitled if such holder’s Claim were Allowed on the

Effective Date, to the extent of available Cash to make such Distribution.

(c) In no event shall any holder of any Disputed Claim be entitled to receive (under

the Plan or otherwise) any Cash payment that is greater than the amount reserved, if any, for

such Disputed Claim under the Plan. In no event shall the Debtors or the Liquidation Trustee

have any responsibility or liability for any loss to or of any amount reserved under the Plan

unless such loss is the result of that party’s fraud, willful misconduct, or gross negligence. In no

event may any Creditor whose Disputed Claim is subsequently Allowed, pursue or recover from

any other Creditor any funds received as Distributions under the Plan.

(d) To the extent that a Disputed Claim ultimately becomes an Allowed Claim and is

entitled to a Distribution in an amount less than the amount reserved for such Disputed Claim,

then on the next succeeding Distribution Date, the Liquidation Trustee shall make, in accordance

with the terms of the Plan, a Distribution of the excess amount reserved for such Disputed Claim

in accordance with the Plan.

(e) The Disputed Confirmation Reserve and the Disputed GUC Fund shall be treated

as disputed ownership funds, within the meaning of Treasury Regulation section 1.468B-9, for

all purposes associated with taxation.

(f) Except as expressly set forth in the Plan, or otherwise agreed to in writing or

ordered by the Bankruptcy Court, the Liquidation Trustee shall not have any duty to fund the

Disputed Confirmation Reserve or Disputed GUC Fund.

(g) The Liquidation Trustee shall pay, or cause to be paid, out of the funds held in the

Disputed Confirmation Reserve and the Disputed GUC Fund, any tax imposed by any federal,

state, or local taxing authority on the income generated by the funds or property held in the

Disputed Confirmation Reserve and the Disputed GUC Fund, respectively. The Liquidation

Trustee shall file, or cause to be filed, any tax or information return related to the Disputed

Confirmation Reserve and the Disputed GUC Fund that is required by any federal, state, or local

taxing authority.


46

L. No Payments of Fractional Cents or Distributions of Less Than Thirty-Five Dollars

(a) Any contrary provision hereof or of the Plan notwithstanding, for purposes of

administrative convenience, no payment of fractional cents shall be made pursuant to the Plan.

Whenever any payment of a fraction of a cent under the Plan would otherwise be required, the

actual Distribution made shall reflect a rounding of such fraction to the nearest whole penny (up

or down), with halfpennies or less being rounded down and fractions in excess of half of a penny

being rounded up.

(b) Any contrary provision hereof or of the Plan notwithstanding, for purposes of

administrative convenience, no Distribution of less than thirty-five dollars ($35) shall be made

pursuant to the Plan. Whenever any Distribution of less than thirty-five dollars ($35) under the

Plan would otherwise be required, such funds will be retained by the Liquidation Trustee for the

account of the recipient until such time that successive Distributions aggregate to thirty-five

dollars ($35), at which time such payment shall be made, and if successive Distributions do not

ever reach thirty-five dollars ($35) in the aggregate, then such Distributions shall be returned to

the Liquidation Trust.

M. Setoff and Recoupment

Except as otherwise provided in the Plan, the Liquidation Trustee may, but shall not be

required to, set off against, or recoup from, any Claim and the Distributions to be made pursuant

to the Plan in respect thereof, any Claims, defenses or Causes of Action of any nature whatsoever

that the Debtors may have, but neither the failure to do so nor the allowance of any Claim under

the Plan shall constitute a waiver or release by the Debtors or Liquidation Trustee of any right of

setoff or recoupment against the holder of any Claim.

N. Payment of Taxes on Distributions Received Pursuant to the Plan

(a) As a precondition to payment of any Distribution to a Creditor under the Plan,

unless included on the official proof of Claim form filed by such Creditor in the Bankruptcy

Cases, each Creditor shall provide the Liquidation Trustee a valid tax identification or social

security number (collectively, the “Tax Information”) for purposes of tax reporting by the

Debtors. All Entities that receive Distributions under the Plan shall be responsible for reporting

and paying, as applicable, any taxes on account of their Distributions.

(b) At such time as the Debtors or Liquidation Trustee believe that Distributions to a

particular Class of Claims are likely, the Liquidation Trustee shall request Tax Information in

writing from the Creditors (the “Tax Information Request”). Any Creditor who fails to respond

to Tax Information Request within ninety (90) days from the date posted on the Tax Information

Request shall forfeit all Distributions such Creditor may otherwise be entitled to under the Plan,

and such forfeited funds will revert to the Estates to be disbursed in accordance with the terms

and priorities established in the Plan.


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O. Compliance With Tax Withholding and Reporting Requirements

With respect to all Distributions made under the Plan, the Debtors and Liquidation

Trustee will comply with all withholding and reporting requirements of any federal, state, local,

or foreign taxing authority.

X. PLAN INTERPRETATION, CONFIRMATION, AND VOTING

A. Procedures Regarding Objections to Designation of Classes as Impaired or

Unimpaired

If the treatment of a Class as impaired or unimpaired is objected to, the Bankruptcy Court

shall determine the objection and voting shall be permitted or disregarded in accordance with the

determination of the Bankruptcy Court.

B. Withdrawal and Modification of Plan

The Plan may be withdrawn or modified by the Debtors at any time prior to the

Confirmation Date. The Debtors may modify the Plan, with the consent of BP and the

Committee, in any manner consistent with Bankruptcy Code section 1127 prior to substantial

consummation thereof. Upon request by the Liquidation Trustee, and with the consent of BP, the

Plan may be modified after substantial consummation with the approval of the Bankruptcy

Court, provided that such modification does not affect the essential economic treatment of any

Person that objects in writing to such modification.

C. Governing Law

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy

Code and the Bankruptcy Rules) or the Plan, the laws of the State of New York applicable to

contracts executed in such State by residents thereof and to be performed entirely within such

State shall govern the construction and implementation of the Plan and any agreements,

documents and instruments executed in connection with the Plan.

D. Voting of Claims

Each holder of a Claim as of the Record Date in Classes 1B, 2, 3, and 4 shall be entitled

to vote to accept or reject the Plan. The Disclosure Statement Order shall govern the manner and

procedures for casting of Ballots with the Voting Agent.

E. Acceptance by Impaired Class

Consistent with Bankruptcy Code section 1126(c), and except as provided for in

Bankruptcy Code section 1126(e), a Class of creditors shall have accepted the Plan if it is

accepted by at least two-thirds in dollar amount and more than one-half in number of the holders

of Allowed Claims of such Class that have timely and properly voted to accept or reject the Plan.


48

F. Presumed Acceptances of Plan

Class 1A is unimpaired under the Plan and, therefore, is conclusively presumed to have

accepted the Plan.

G. Presumed Rejections of Plan

Class 5 is presumed to have rejected the Plan but may elect to accept the Plan.

H. Cram Down

The Bankruptcy Code permits confirmation of a plan even if it is not accepted by all

impaired classes, as long as (a) the plan otherwise satisfies the requirements for confirmation, (b)

at least one impaired class of claims has accepted the plan without taking into consideration the

votes of any insiders in such class, and (c) the plan is “fair and equitable” and does not

“discriminate unfairly” as to any impaired class that has not accepted the plan. These so-called

“cramdown” provisions are set forth in Bankruptcy Code section 1129(b). The Debtors request

that, in the event that any impaired Class entitled to vote on the Plan accepts the Plan, the

Bankruptcy Court confirm the Plan in accordance with the provisions of Bankruptcy Code

section 1129(b) to satisfy the requirements for confirmation of the Plan over the presumed

rejection of Class 5 and/or the possible rejection of the Plan by any impaired Class entitled to

vote on the Plan.

(a) “Fair and Equitable.” The Bankruptcy Code establishes different “cram down”

tests for determining whether a plan is "fair and equitable" to dissenting impaired classes of

secured creditors, unsecured creditors and equity interest holders as follows:

i. Secured Creditors. A plan is fair and equitable to a class of secured

claims that rejects the plan if the plan provides: (a) that each holder of a

secured claim included in the rejecting class (i) retains the liens securing

its claim to the extent of the allowed amount of such claim, whether the

property subject to those liens is retained by the debtor or transferred to

another entity, and (ii) receives on account of its secured claim deferred

cash payments having a present value, as of the effective date of the plan,

at least equal to such holder’s interest in the estate’s interest in such

property; (b) that each holder of a secured claim included in the rejecting

class realizes the “indubitable equivalent” of its allowed secured claim; or

(c) for the sale, subject to Bankruptcy Code section 363(k), of any

property that is subject to the liens securing the claims included in the

rejecting class, free and clear of such liens with such liens to attach to the

proceeds of the sale, and the treatment of such liens on proceeds in

accordance with clause (i) or (ii) of this paragraph.

ii. Unsecured Creditors. A plan is fair and equitable as to a class of

unsecured claims that rejects the plan if the plan provides that: (a) each

holder of a claim included in the rejecting class receives or retains under


49

the plan property of a value, as of the effective date of the plan, equal to

the amount of its allowed claim; or (b) the holders of claims and interests

that are junior to the claims of the rejecting class will not receive or retain

any property under the plan on account of such junior claims or interests.

iii. Holders of Interests. A plan is fair and equitable as to a class of interests

that rejects the plan if the plan provides that: (a) each holder of an equity

interest included in the rejecting class receives or retains under the plan

property of a value, as of the effective date of the plan, equal to the

greatest of the allowed amount of (i) any fixed liquidation preference to

which such holder is entitled, (ii) any fixed redemption price to which

such holder is entitled or (iii) the value of the interest; or (b) the holder of

any interest that is junior to the interests of the rejecting class will not

receive or retain any property under the plan on account of such junior

interest.

The Debtors believe the Plan is fair and equitable as to unsecured creditors and holders of

interests because no holders of claims or interests junior to such parties are receiving any

distributions under the Plan on account of such claims or interests.

(b) “Unfair Discrimination.” A plan of reorganization does not “discriminate

unfairly” if a dissenting class is treated substantially equally with respect to other classes

similarly situated, and no class receives more than it is legally entitled to receive for its claims or

interests. The Debtors carefully designed the Plan to ensure that the Plan did not result in unfair

discrimination among similarly situated classes. The Debtors do not believe that the Plan

discriminates unfairly against any impaired class of claims or interests. The Debtors believe that

the Plan and the treatment of all classes of claims and interests under the Plan satisfy the

foregoing requirements for “cram down,” or non-consensual confirmation of the Plan pursuant to

Bankruptcy Code section 1129(b).

XI. RETENTION OF JURISDICTION BY BANKRUPTCY COURT

From the Confirmation Date until entry of a final decree closing the Bankruptcy Cases

(pursuant to Bankruptcy Code § 350 and Bankruptcy Rule 3022), the Bankruptcy Court shall

retain such jurisdiction as is legally permissible over the Bankruptcy Cases for the following

purposes:

(a) to hear and determine any and all objections to the allowance of any Claim or

Administrative Expense Claim, or any controversy as to the classification of Claims or any

matters that may directly, indirectly or contingently affect the obligations of the Debtors or the

Liquidation Trustee, holders of Claims, or other parties in interest;

(b) to hear and determine any and all applications for compensation and

reimbursement of expenses by Professionals;


50

(c) to hear and determine any and all pending motions for the assumption or rejection

of executory contracts and unexpired leases, and to fix any Claims resulting therefrom;

(d) to adjudicate through final judgment such contested matters and adversary

proceedings as may be pending or subsequently initiated in the Bankruptcy Court, including, but

not limited to, Causes of Action brought by the Liquidation Trustee;

(e) to enforce and interpret the provisions of the Plan, the Disclosure Statement

Order, the Confirmation Order and any other order of the Bankruptcy Court in the Bankruptcy

Cases;

(f) to issue any injunction or other relief appropriate to implement the intent of the

Plan, and to enter such further orders enforcing any injunctions or other relief issued under the

Plan or pursuant to the Confirmation Order;

(g) to modify the Plan pursuant to Bankruptcy Code section 1127 and the applicable

Bankruptcy Rules;

(h) to correct any defect, cure any omission, or reconcile any inconsistency in the

Plan or in the Confirmation Order as may be necessary to carry out the purposes and the intent of

the Plan;

(i) to interpret and determine such other matters as the Confirmation Order may

provide for or as may be authorized under the Bankruptcy Code; and

(j) to enter and implement such orders as may be appropriate if the Confirmation

Order is, for any reason, stayed, reversed, revoked, modified, or vacated.

XII. CERTAIN TAX CONSEQUENCES OF THE PLAN

A. General

THIS DESCRIPTION IS LIMITED TO THE SPECIFIC FEDERAL INCOME

TAX MATTERS DESCRIBED HEREIN. IT IS POSSIBLE THAT ADDITIONAL

ISSUES MAY EXIST THAT COULD AFFECT THE FEDERAL INCOME TAX

CONSEQUENCES OF THE PLAN OR OTHER FEDERAL INCOME TAX MATTERS

DISCUSSED HEREIN, AND THIS DISCUSSION DOES NOT CONSIDER OR

PROVIDE ANY CONCLUSIONS WITH RESPECT TO ANY SUCH ADDITIONAL

ISSUES. EACH TAXPAYER IS STRONGLY URGED TO SEEK ADVICE BASED ON

THE TAXPAYER’S PARTICULAR CIRCUMSTANCES FROM SUCH TAXPAYER’S

INDEPENDENT TAX ADVISOR.

THE DESCRIPTION OF CERTAIN FEDERAL INCOME TAX

CONSEQUENCES OF THE PLAN PROVIDED BELOW IS SOLELY FOR THE

PURPOSE OF COMPLIANCE WITH BANKRUPTCY CODE SECTION 1125(a). THE

DESCRIPTION IS BASED ON THE INTERNAL REVENUE CODE TREASURY


51

REGULATIONS, JUDICIAL DECISIONS, AND ADMINISTRATIVE

DETERMINATIONS, ALL AS IN EFFECT ON THE DATE OF THIS DISCLOSURE

STATEMENT. CHANGES IN ANY OF THESE AUTHORITIES OR IN THEIR

INTERPRETATION MAY HAVE RETROACTIVE EFFECT, WHICH MAY CAUSE

THE FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN TO DIFFER

MATERIALLY FROM THE CONSEQUENCES DESCRIBED BELOW. EXCEPT AS

PROVIDED BELOW, NO RULING HAS BEEN REQUESTED FROM THE IRS AND

NO LEGAL OPINION HAS BEEN REQUESTED FROM COUNSEL CONCERNING

ANY TAX CONSEQUENCE OF THE PLAN, AND NO TAX OPINION OR ADVICE IS

GIVEN BY THIS DISCLOSURE STATEMENT.

This description does not cover all aspects of federal income taxation that may be

relevant to the Debtors or holders of Claims or Interests. For example, the description does not

address issues of special concern to certain types of taxpayers, such as dealers in securities, life

insurance companies, financial institutions, tax exempt organizations, and foreign taxpayers, nor

is it intended to address all of the possible federal income tax consequences to holders of Claims

and Interests in the Debtors. This description also does not discuss the possible state tax or non-

U.S. tax consequences that might apply to the Debtors or to holders of Claims or Interests.

B. Tax Consequences of Payment of Allowed Claims Pursuant to Plan Generally

The federal income tax consequences of the implementation of the Plan to the holders of

Allowed Claims will depend, among other things, on the consideration to be received by the

holder, whether the holder reports income on the accrual or cash method, whether the holder’s

Claim is Allowed or Disputed on the Effective Date, and whether the holder has taken a bad debt

deduction or a worthless security deduction with respect to its Claim.

(i) Recognition of Gain or Loss

In general, a holder of an Allowed Claim or Interest should recognize gain or loss equal

to the amount realized under the plan in respect of its claim less the holder’s tax basis in the

claim. Any gain or loss recognized in the exchange may be long-term or short-term capital gain

or loss or ordinary income or loss, depending upon the nature of the allowed claim and the

holder, the length of time the holder held the claim and whether the claim was acquired at a

market discount. If the holder realizes a capital loss, the holder’s deduction of the loss may be

subject to limitation. The holder’s tax basis for any property received under the plan generally

will equal the amount realized.

(ii) Bad Debt or Worthless Security Deduction

A holder who receives in respect of an Allowed Claim an amount less than the holder’s

tax basis in the Claim may be entitled in the year of receipt (or in an earlier or later year) to a bad

debt deduction in some amount under section 166(a) of the Internal Revenue Code. The rules

governing the character, timing and amount of bad debt deductions place considerable emphasis

on the facts and circumstances of the holder, the obligor and the instrument with respect to which


52

a deduction is claimed. Holders of Allowed Claims, therefore, are urged to consult their tax

advisors with respect to their ability to take such a deduction.

XIII. CONFIRMATION OF PLAN – REQUIREMENTS

In order for a plan to be confirmed, the Bankruptcy Code requires, among other things,

that the plan be proposed in good faith, that the plan proponent disclose specified information

concerning payments made or promised to insiders, and that the plan comply with the applicable

provisions of chapter 11 of the Bankruptcy Code. Bankruptcy Code section 1129(a) also

requires that at least one class of claims that is impaired under the plan has accepted the plan and

that confirmation of the plan is not likely to be followed by the need for further financial

reorganization. The Bankruptcy Court can confirm the plan if it finds that all of the requirements

of section 1129(a) have been met. The Debtors believe that the Plan meets all of these required

elements. With respect to the so-called “feasibility” test (i.e., that the Plan is not likely to be

followed by the need for further financial reorganization), the Plan provides for an orderly

liquidation of the Debtors’ assets and the Debtors believe that they will be able to consummate

the Plan fully.

A. Absolute Priority Rule

To satisfy the absolute priority rule, a plan must provide that the holder of any claim or

interest that is junior to the claims of the dissenting class will not receive or retain under the plan

on account of such junior claim or interest any property unless the claims of the dissenting class

are paid in full.

The Debtors believe that the Plan satisfies the absolute priority rule. The Debtors further

believe that all non-accepting impaired Classes will receive or retain payment or Distribution, as

the case may be, on account of their Claims or Interests, sufficient to permit full satisfaction of

such Claims before junior Classes receive or retain any property on account of such junior

Claims.

B. Best Interest of Creditors Test; Liquidation Analysis

Under the best interest of creditors test, a plan is confirmable if, with respect to each

impaired class of claims or interests, each holder of an allowed claim or allowed interest in such

class has either (i) accepted the plan, or (ii) receives or retains under the plan, on account of its

claim or interest, property of a value, as of the effective date, that is not less than the amount

such holder would receive or retain if the debtor were to be liquidated under chapter 7 of the

Bankruptcy Code.

To determine what the holders of each class of claims or interests would receive if a

debtor were to be liquidated under chapter 7 of the Bankruptcy Code, the Bankruptcy Court must

determine the dollar amount that would be generated from the liquidation of the debtor’s assets

in a chapter 7 liquidation case. The amount that would be available for satisfaction of the

allowed claims and interests of the debtor would consist of the proceeds resulting from the

disposition of the assets of the debtor augmented by the cash held by the debtor at the time of the


53

commencement of the chapter 7 case. Such amounts would be reduced by the costs and

expenses of the liquidation and by such additional administrative expense claims and other

priority claims that might result from the chapter 7 case.

Here, the Debtors’ major assets have been liquidated as of the date of this Disclosure

Statement. The Debtors believe that a conversion of the Bankruptcy Cases to chapter 7 would

simply duplicate an orderly plan process, and that Creditors would be harmed by the delay and

expense that would result.

To determine if the Plan, as proposed, is in the best interests of creditors and holders of

interests, the present values of the distributions likely to be made to each class in a liquidating

case are compared with the present value of the distributions to each impaired class provided for

by the plan.

In applying the best interest test, it is possible that claims in a chapter 7 case may not be

classified in the same manner as provided for by the plan. Priorities and order of distribution of

estate assets are established by the applicable provisions of chapter 7. Under those provisions,

each class of claims is paid in a descending order of priority. No junior classes of claims are

paid until all senior classes have received payment in full. In the event that available assets are

insufficient to pay all members of such class in full, then each member of the class shares on a

pro rata basis.

The Debtors believe that the primary advantage of the Plan over a chapter 7 liquidation is

that Creditors will likely receive more under the Plan than they would in a chapter 7 case and

receive their Distributions earlier. Costs would increase by the amount of the additional

administrative expenses likely to be incurred in such a chapter 7 case, including the costs of

time-consuming investigations and discovery. The process of other Claims resolution will

proceed without the necessity for additional investigation by a chapter 7 trustee and its separate

and new professionals, and the Plan offers the opportunity to avoid additional administrative

costs and the resulting delay which would result from a chapter 7 liquidation. The Debtors

therefore believe that the Plan will result in lower total administrative costs and higher recoveries

for Creditors than would the liquidation of the Debtors’ assets under chapter 7 of the Bankruptcy

Code. A liquidation analysis that demonstrates the lower recovery for creditors in a chapter 7

liquidation is annexed hereto as Exhibit B.

Thus, the Debtors believe the Plan satisfies the “best interests of creditors test,” and,

indeed, that the Plan is in the best interests of Creditors.

XIV. PROCEDURES FOR VOTING ON PLAN

As noted above, pursuant to the Bankruptcy Code, a plan groups various claims and

interests into classes, each consisting of parties having similar legal rights in relation to a debtor.

Each class may then be treated as either “impaired” or “unimpaired” under a plan. There are two

ways in which a plan may leave a claim or interest “unimpaired.” First, a plan may not propose

to alter the legal, equitable or contractual rights of the holder of the claim or interest. Second, all


54

defaults (excluding those covered by Bankruptcy Code section 365(b)(2)) may be cured and the

original terms of the obligation reinstated, among other things. If a class is unimpaired, then it is

presumed to vote in favor of a plan.

An impaired class that would receive nothing under a plan is presumed to have rejected

such a plan.

An impaired class that is proposed to receive any distribution (whether in cash, securities

or other property) has the right to vote, as a class, to accept or reject the plan. A class of

creditors accepts a plan if more than one-half (1/2) of the ballots that are timely received from

members of such class, representing at least two-thirds (2/3) of the dollar amount of claims for

which ballots are timely received, vote in favor of such plan. Bankruptcy Code section 1126(e)

provides that a creditor’s vote may be disregarded if the Bankruptcy Court determines, after

notice and a hearing, that the creditor’s vote either to accept or reject a plan was not solicited or

cast in good faith or in compliance with the Bankruptcy Code. A plan under which any class of

claims is impaired may be confirmed by the Bankruptcy Court only if it has been accepted by at

least one such class.

Each holder of an Allowed Claim in an impaired Class that retains or receives property

under the Plan shall be entitled to vote separately to accept or reject the Plan and shall indicate

such vote on a duly executed and delivered Ballot as provided in such order as is entered by the

Bankruptcy Court establishing certain procedures with respect to the solicitation and tabulation

of votes to accept or reject the Plan, or any other order or orders of the Bankruptcy Court.

Holders of Claims in the impaired Classes entitled to vote (Classes 1B, 2, 3, and 4) will

receive, together with this Disclosure Statement, a Ballot to be used in voting to accept or reject

the Plan. Voting instructions will accompany the Ballot.

Holders of Claims and Interests not entitled to vote (Classes 1 and 5, as well as holders of

Administrative Expense Claims, Priority Tax Claims, and Non-Tax Priority Claims) will receive,

together with the Disclosure Statement, a form allowing the holders of such Claims and Interests

to opt out of the Third Party Release provision in the Plan (as described in Section VIII.G

above). Instructions and a postage prepaid return envelope will accompany such form.

Each Creditor should first carefully review this Disclosure Statement and the Plan. The

Creditor should then complete the portions of the Ballot indicating the Class or Classes in which

the Creditor’s Claim falls and the total dollar amount of the Claim. If the Creditor’s Claim falls

into more than one Class, then the Creditor should list each Class and state the dollar amount of

the Claim which belongs in each Class. It is critical that the Class(es) and amounts(s) of the

Claim be correctly stated on the Ballot so that the Creditor’s vote can be properly counted.

Next, the Creditor should mark in the space provided on the Ballot whether the Creditor

wishes to accept or to reject the Plan. Please be sure to fill in the name of the Creditor for whom

the Ballot is being filed. Finally, the Ballot must be signed by the Creditor, or by an officer,

partner, or other authorized agent of the Creditor. Please note that the Debtors reserve the right


55

to object to the allowance, designation of Class and/or allowable amount of any Claim set forth

in a Ballot for purposes of voting and/or Distribution under the Plan.

Completed and signed Ballots should be returned by first class mail to the Voting Agent

at the below address in the enclosed self-addressed return envelope:

Agera Balloting

c/o Stretto

8269 E. 23rd Ave., Ste. 275

Denver, CO 80238

Completed and signed Ballots may also be returned by overnight mail or hand delivery to

the address above.

Completed Ballots should be returned as soon as possible, and in any event so that they

are RECEIVED NO LATER THAN JUNE 9, 2020 AT 4:00 P.M. (PREVAILING EASTERN

TIME). ANY BALLOTS THAT ARE RECEIVED BY THE VOTING AGENT AFTER JUNE

9, 2020 AT 4:00 P.M. (PREVAILING EASTERN TIME) WILL NOT BE COUNTED IN

DETERMINING ACCEPTANCE OR REJECTION OF THE PLAN.

XV. CONFIRMATION HEARING

The Confirmation Hearing will be held by the Honorable Robert D. Drain, United States

Bankruptcy Judge, on June 12, 2020 at 2:00 p.m. (prevailing Eastern Time) in the United States

Bankruptcy Court, Southern District of New York, 300 Quarropas Street, Courtroom No. 118,

White Plains, NY 10601. At that hearing, the Bankruptcy Court will decide whether the Plan

should be confirmed and will hear and decide any and all objections to the Plan. Any Creditor,

or other party in interest who wishes to object to Confirmation of the Plan, or to the classification

of Claims and Interests provided in the Plan, must, not later than 4:00 p.m. (prevailing Eastern

Time) on June 9, 2020 file an objection with the Clerk’s Office, United States Bankruptcy Court,

Southern District of New York, 300 Quarropas Street, White Plains, NY 10601, and serve a copy

of the objection on the following persons:

(a) Counsel to the Debtors: (b) Counsel to the Official Committee of

Unsecured Creditors:

McDermott Will & Emery LLP

340 Madison Avenue

New York, NY 10173

Attn: Darren Azman

Ravi Vohra

Kilpatrick Townsend & Stockton LLP

The Grace Building

1114 Avenue of the Americas

New York, NY 10036-7703

Attn: Todd C. Meyers


56

Kilpatrick Townsend & Stockton LLP

1100 Peachtree Street

Suite 2800

Atlanta, GA 30309

Attn: Colin M. Bernardino

(c) The United States Trustee:

(d) Counsel to BP:

Office of the United States Trustee

U.S. Federal Office Building

201 Varick Street


Attn: Andrea Beth Schwartz

Shannon Scott

Haynes and Boone, LLP

1221 McKinney Street

Suite 2100

Houston, TX 77010

Attn: Kathryn Shurin

Kelli Stephenson Norfleet

Any objections to the Plan that are not filed and served by the above date may not be

considered by the Bankruptcy Court. Any person or entity who files an objection to

Confirmation of the Plan or to the classification of Claims and Interests provided in the Plan

must also attend the Confirmation Hearing, either in person or through counsel.

If the Plan is confirmed, its provisions will bind the Estate and any and all entities,

including all holders of Claims and Interests, whether or not the Claim or Interest of such

claimant or interest holder is impaired under the Plan and whether or not the claimant or interest

holder has, either individually or by a Class, voted to accept the Plan.

XVI. RECOMMENDATION

The Debtors and the Committee believe that the Plan provides for the fair and equitable

treatment of the Debtors’ Creditors and therefore recommend that Creditors vote to accept the

Plan.


57

Dated: May 9, 2020

New York, New York

By: /s/ Mark Linzenbold

Mark Linzenbold

Chief Financial Officer

Agera Energy LLC


Mark Linzenbold


Agera Holdings, LLC


Mark Linzenbold


energy.me midwest llc


Mark Linzenbold


Aequitas Energy, Inc.

By: /s/ Stephen Gray

Stephen Gray

Manager

Utility Recovery LLC


Stephen Gray

Manager

Agera Solutions LLC


Exhibit A

Plan


UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

)

In re: ) Chapter 11

)

AGERA ENERGY LLC, et al.,1 )

)

Case No. 19-23802 (RDD)

Debtors.

)

)

(Jointly Administered)

SECOND AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF AGERA

ENERGY LLC, ET AL.

MCDERMOTT WILL & EMERY LLP

Timothy W. Walsh

Darren Azman

Ravi Vohra

Natalie Rowles

340 Madison Avenue


Telephone: (212) 547-5615

Facsimile: (212) 547-5444

Counsel to the Debtors and Debtors in Possession

Dated: May 9, 2020

New York, New York

1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera

Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988);

Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate

headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.


TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

ARTICLE 1 - DEFINITIONS AND RULES OF INTERPRETATION .........................................1

A. Definitions................................................................................................................1

B. Rules of Interpretation ...........................................................................................12

ARTICLE 2 - PAYMENT OF CLAIMS AND FEES NOT REQUIRED TO BE CLASSIFIED 12

2.1 Claims and Fees Not Classified. ............................................................................12

2.2 DIP Financing Claims. ...........................................................................................13

2.3 Administrative Expense Claims. ............................................................................13

2.4 Professional Fee Claims .........................................................................................13

2.5 Priority Tax Claims. ...............................................................................................13

2.6 Non-Tax Priority Claims........................................................................................14

2.7 Intercompany Claims. ............................................................................................14

2.8 Statutory Fees.........................................................................................................14

ARTICLE 3 - CLASSIFICATION OF CLAIMS AND INTERESTS ..........................................15

3.1 Criterion of Class. ..................................................................................................15

3.2 Classification..........................................................................................................15

3.3 Class Categories. ....................................................................................................15

ARTICLE 4 - TREATMENT OF CLASSES OF CLAIMS AND INTERESTS ..........................15

4.1 Class 1A (Allowed Other Secured Claims). ..........................................................15

4.2 Class 1B (Allowed Prepetition BP Secured Claim). ..............................................16

4.3 Class 2 (Allowed General Unsecured Claims). .....................................................17

4.4 Class 3 (Allowed BP Deficiency Claim and Allowed BP

Subordinated Claim). .............................................................................................17

4.5 Class 4 (Allowed Prepetition CBLIC Claims). ......................................................17

4.6 Class 5 (Interests). ..................................................................................................18


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ARTICLE 5 - MEANS OF IMPLEMENTATION OF THE PLAN .............................................18

5.1 Joint Chapter 11 Plan. ............................................................................................18

5.2 Substantive Consolidation of Claims Against Debtors for Plan

Purposes Only. .......................................................................................................18

5.3 Plan Funding Mechanism. .....................................................................................18

5.4 Formation of the Liquidation Trust........................................................................18

5.5 Establishment of Reserves and Escrow Accounts. ................................................19

5.6 Powers and Duties of the Liquidation Trustee. ......................................................21

5.7 Appointment of the Liquidation Trustee................................................................23

5.8 Issuance of General Unsecured Creditor Interests. ................................................23

5.9 Liquidation Trustee Reporting. ..............................................................................23

5.10 Fees and Expenses of the Liquidation Trustee. .....................................................24

5.11 Resignation or Removal of Liquidation Trustee. ...................................................24

5.12 Reliance on Documents .........................................................................................24

5.13 Corporate Action. ...................................................................................................24

5.14 Liquidation and Dissolution of Debtors. ................................................................24

5.15 Dissolution of Creditors’ Committee. ....................................................................25

5.16 Closing of the Bankruptcy Cases. ..........................................................................25

5.17 Plan Distributions...................................................................................................25

5.18 Preservation and Abandonment of Records. ..........................................................25

5.19 General Disposition of Assets. ...............................................................................26

5.20 Final Administrative Expense Claims Bar Date. ...................................................26

5.21 Deadline for Filing Applications for Professional Fee Claims. .............................27


iii

5.22 Execution of Documents to Effectuate Plan. .........................................................27

5.23 Disallowance of Claims Without Further Order of the Court................................27

5.24 Post-Effective Date Reports and Fees....................................................................27

5.25 Cancellation of Notes, Instruments, Certificates, and Other

Documents. ............................................................................................................28

5.26 Insurance Preservation. ..........................................................................................28

5.27 Preservation of Causes of Action. ..........................................................................28

5.28 Section 1146 Exemption from Certain Taxes and Fees .........................................28

5.29 Withdrawal of the Standing Motion. .....................................................................29

5.30 Settlement Pursuant to Bankruptcy Rule 9019. .....................................................29

5.31 Return of Deposits. ................................................................................................29

ARTICLE 6 - TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED

LEASES .............................................................................................................................29

6.1 General Provisions. ................................................................................................29

6.2 Notice of Deemed Rejection/Rejection Bar Date. .................................................30

ARTICLE 7 - CONDITIONS PRECEDENT; CONFIRMATION AND EFFECTIVE DATE ...30

7.1 Conditions Precedent to Plan Confirmation. .........................................................30

7.2 Conditions Precedent to the Effective Date. ..........................................................30

7.3 Waiver of Conditions Precedent. ...........................................................................31

ARTICLE 8 - INJUNCTION; RELEASE; EXCULPATION .......................................................31

8.1 General Injunctions. ...............................................................................................31

8.2 All Distributions Received in Full and Final Satisfaction. ....................................32

8.3 No Modification of Res Judicata Effect.................................................................32


iv

8.4 Exculpation for Debtors, Committee, and Estate Professionals. ...........................32

8.5 Exculpation for Liquidation Trustee. .....................................................................33

8.6 Releases by the Debtors. ........................................................................................33

8.7 Releases by Releasing Parties ................................................................................34

ARTICLE 9 - PROVISIONS GOVERNING DISTRIBUTIONS .................................................35

9.1 Payment in U.S. Dollars.........................................................................................35

9.2 Distributions Only on Business Days. ...................................................................35

9.3 Unclaimed Distributions. .......................................................................................35

9.4 Timing of Distributions Generally. ........................................................................35

9.5 Timing of Distributions on Disputed Claims Subsequently

Allowed. .................................................................................................................35

9.6 No Payment or Distribution on Disputed Claims. .................................................35

9.7 Disputed Distribution. ............................................................................................36

9.8 Transmittal of Payments and Notices. ...................................................................36

9.9 Record Date for Distributions. ...............................................................................36

9.10 Claims Administration Responsibility. ..................................................................36

9.11 Disputed Claims. ....................................................................................................37

9.12 No Payments of Fractional Cents or Distributions of Less Than

Thirty-Five Dollars. ...............................................................................................38

9.13 Setoff and Recoupment ..........................................................................................39

9.14 Payment of Taxes on Distributions Received Pursuant to the Plan. ......................39

9.15 Compliance With Tax Withholding and Reporting Requirements. .......................39

ARTICLE 10 - PLAN INTERPRETATION, CONFIRMATION AND VOTING ......................39


v

10.1 Procedures Regarding Objections to Designation of Classes as

Impaired or Unimpaired. ........................................................................................39

10.2 Withdrawal and Modification of Plan....................................................................40

10.3 Governing Law. .....................................................................................................40

10.4 Voting of Claims. ...................................................................................................40

10.5 Acceptance by Impaired Class. ..............................................................................40

10.6 Presumed Acceptances of Plan. .............................................................................40

10.7 Presumed Rejections of Plan. ................................................................................40

10.8 Cramdown. .............................................................................................................40

ARTICLE 11 - RETENTION OF JURISDICTION BY BANKRUPTCY COURT ....................41

ARTICLE 12 - MISCELLANEOUS PROVISIONS ....................................................................42

12.1 Headings. ...............................................................................................................42

12.2 No Attorneys’ Fees. ...............................................................................................42

12.3 Notices. ..................................................................................................................42

12.4 No Discharge. ........................................................................................................42

12.5 Claims In Dollars. ..................................................................................................42

12.6 Binding Effect. .......................................................................................................42


INTRODUCTION

Agera Energy LLC and its debtor affiliates, as debtors and debtors in possession

(collectively, the “Debtors”), propose this chapter 11 plan (this “Plan”) under Bankruptcy Code

section 1121.

ARTICLE 1 - DEFINITIONS AND RULES OF INTERPRETATION

A. Definitions

The following terms, when used in this Plan, or any subsequent amendments or

modifications thereof, have the respective meanings hereinafter set forth and shall be equally

applicable to the singular and plural of terms defined.

1.1 “Administrative Expense Claim” means a Claim, other than a DIP Financing

Claim or a Professional Fee Claim, entitled to priority under Bankruptcy Code section 503(b),

507(a)(2), or 507(b), including, without limitation, BP’s professional fees (to the extent not

satisfied as DIP Financing Claims).

1.2 “Affiliate” has the meaning assigned to such term in Bankruptcy Code section

101(2).

1.3 “Agera Opco Entities” means Agera Energy LLC, energy.me midwest llc, and


1.4 “Allowed” means, with respect to a Claim against or Interest in the Debtors, (i)

proof of which was originally filed within the applicable period of limitation fixed by the

Bankruptcy Court in accordance with Rule 3003(c)(3) of the Bankruptcy Rules and any Final

Order, (ii) if no proof of Claim or Interest has been timely filed, which has been or hereafter is

listed by the Debtors in their Schedules as liquidated in an amount and not Disputed or

contingent, as to which no objection to the allowance thereof has been interposed within the

applicable period of limitation fixed by this Plan, the Bankruptcy Code, the Bankruptcy Rules, a

Final Order, or the Claims Objection Bar Date, but only to the extent applicable, or as to which

an objection has been interposed and such Claim or Interest has been allowed in whole or in part

by a Final Order, or (iii) a Claim or Interest that is allowed by Final Order; provided, however,

that (a) Claims allowed solely for the purpose of voting to accept or reject the Plan pursuant to an

order of the Bankruptcy Court shall not be considered “Allowed Claims” hereunder unless

otherwise specified herein or by order of the Bankruptcy Court, (b) “Allowed Claim” does not

include interest, penalties, or late charges arising from or relating to the period from and after the

Petition Date, and (c) “Allowed Claim” does not include any Claim subject to disallowance

under Bankruptcy Code section 502(d).

1.5 “Approved Budget” has the meaning assigned to such term in the Final DIP

Order.


2

1.6 “Assets” means all property of the Estates, including, without limitation, all

property and other interests identified in Bankruptcy Code section 541(a) wherever located and

whether acquired prior to or after the Petition Date, including Cash, furniture, fixtures,

equipment, artwork, intellectual property, Causes of Action, together with the proceeds and

products, replacements, and accessions thereof, including, without limitation, the Briarcliff

Membership Interests and Posted Collateral.

1.7 “Avoidance Action” means any Cause of Action to avoid or recover a transfer of

property of the Estates or an interest of the Debtors in property, including, without limitation,

actions arising under Bankruptcy Code sections 542, 543, 544, 545, 547, 548, 549, 550, 551,

553(b), or 724(a) and any other applicable federal, state, or common law.

1.8 “Ballot” means the form distributed to the holder of an impaired Claim on which

it is to be indicated whether such holder accepts or rejects the Plan.

1.9 “Bankruptcy Cases” means the voluntary cases commenced under chapter 11 of

the Bankruptcy Code on the Petition Date, jointly administered under case number 19-23802

(RDD) in the United States Bankruptcy Court for the Southern District of New York.

1.10 “Bankruptcy Code” means title 11 of the United States Code.

1.11 “Bankruptcy Court” or “Court” means the United States Bankruptcy Court for the

Southern District of New York.

1.12 “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, as

promulgated by the Supreme Court of the United States, as amended, and any Local Rules of the

Bankruptcy Court, as amended, in effect and applicable to the Bankruptcy Cases.

1.13 “Bar Date” means December 23, 2019 at 5:00 p.m. (prevailing Eastern Time), the

date established by the Bankruptcy Court as the deadline to file proofs of Claim or, with respect

to Governmental Units, April 1, 2020 at 5:00 p.m., as applicable, unless the Bankruptcy Court has

set a different date by which a specific Creditor must file a proof of Claim, in which case it means,

for such specific Creditor, such different date set by the Court.

1.14 “BP” means BP Energy Company.

1.15 “BP Deficiency Claim” means any Deficiency Claim related to the Prepetition BP

Secured Claim, less any collections on Guaranties net of the Guarantee Proceeds paid to the

Liquidation Trust.

1.16 “BP Subordinated Claim” means $16,698,538.95.

1.17 “Briarcliff” means the real property of Briarcliff Property Group, LLC, located at

555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.


3

1.18 “Briarcliff Membership Interests” means Agera Energy LLC’s 100% membership

interests in Briarcliff Property Group, LLC.

1.19 “Business Day” means any day other than a Saturday, Sunday, or a “legal

holiday,” as such term is defined in Bankruptcy Rule 9006(a).

1.20 “Cash” means legal tender of the United States of America.

1.21 “Causes of Action” means any and all Claims, rights, actions, chose in action,

suits, causes of action, liens, judgments, and damages belonging to the Debtors or their Estates

and any and all liabilities, obligations, covenants, undertakings, and debts owing to the Estates,

of whatever nature and whenever arising, whether known or unknown, in law, equity, or

otherwise, including, without limitation, actions arising under Bankruptcy Code sections 541 and

542 and any other applicable federal, state, or common law.

1.22 “CBLIC” means Colorado Bankers Life Insurance Company.

1.23 “CBLIC Intercreditor Proceeds” has the meaning assigned to such term in Section

4.2.

1.24 “Claim” has the meaning assigned to such term in Bankruptcy Code section

101(5).

1.25 “Claims Agent” means Stretto, which was appointed by the Bankruptcy Court to

receive, maintain, docket, and otherwise administer the proofs of Claim filed in the Bankruptcy

Cases.

1.26 “Claims Objection Bar Date” means, unless otherwise extended by Order of the

Court, the first Business Day that is 120 days after the Effective Date.

1.27 “Class” means a category of Claims or Interests described in ARTICLE 3.

1.28 “Confirmation Amount” means all Cash, which shall be funded from the Effective

Date Cash, that is necessary to pay or reserve for Allowed Administrative Expense Claims,

Allowed Priority Tax Claims, Allowed Non-Tax Priority Claims, Professional Fee Claims,

Allowed Other Secured Claims, the GUC Budget Excess, and the Initial Liquidation Trust

Funding, but shall not include any such amounts previously paid pursuant to the Approved

Budget.

1.29 “Confirmation Date” means the date on which the Clerk of the Bankruptcy Court

enters the Confirmation Order on the docket.

1.30 “Confirmation Fund” means the segregated account established under Section

5.5(b).


4

1.31 “Confirmation Order” means the order of the Bankruptcy Court confirming this

Plan pursuant to Bankruptcy Code section 1129, as the Plan may be amended by its terms and

consistent with applicable law, and any findings of fact and conclusions of law contained in the

Confirmation Order or a separate document entered substantially contemporaneously therewith,

in form and substance reasonably satisfactory to the Debtors, BP, and the Committee.

1.32 “Creditor” means any Person holding a Claim against the Debtors or, pursuant to

Bankruptcy Code section 102(2), against property of the Debtors, that arose or is deemed to have

arisen on or prior to the Petition Date, including, without limitation, a Claim against the Debtors

of the kind specified in Bankruptcy Code sections 502(g), 502(h), or 502(i).

1.33 “Creditors’ Committee” or “Committee” means the official committee of

unsecured creditors appointed by the U.S. Trustee to represent the interests of unsecured

creditors in the Bankruptcy Cases.

1.34 “D&O Policies” means all primary and excess insurance policies that provide

coverage for liability related to the actions or omissions of the Debtors’ directors and officers,

and, if applicable, “tail” or “runoff” coverage for such policies.

1.35 “Debtors” means Agera Energy LLC and its debtor affiliates, as debtors and

debtors in possession in the Bankruptcy Cases.

1.36 “Debtor Release” means the collective releases by the Debtors under Section 8.6.

1.37 “Deficiency Claim” means that portion of any Allowed Claim held by a Secured

Creditor that exceeds the value of the Assets securing such Allowed Claim.

1.38 “DIP Financing Claim” means a Claim for an accrued and outstanding amount

under the postpetition financing approved by the Final DIP Order.

1.39 “Disallowed” means, when referring to a Claim (including a Scheduled Claim) or

Interest, or any portion of a Claim or Interest, which has been disallowed or expunged by a Final

Order.

1.40 “Disclosure Statement” means the disclosure statement for the Plan and all

exhibits annexed thereto or otherwise filed in connection therewith, approved by the Bankruptcy

Court under Bankruptcy Code section 1125.

1.41 “Disclosure Statement Order” means the Final Order approving the Disclosure

Statement under Bankruptcy Code section 1125.

1.42 “Disputed” means, with respect to a Claim against or Interest in the Debtors, the

extent to which the allowance of such Claim or Interest is the subject of a timely objection,

complaint, or request for estimation in accordance with the Plan, the Bankruptcy Code, the

Bankruptcy Rules, or the Confirmation Order, or is otherwise not yet Allowed or is disputed in


5

accordance with applicable law, which objection, request for estimation, or dispute has not been

withdrawn with prejudice or determined by a Final Order.

1.43 “Disputed Confirmation Reserve” means the segregated account established under

Section 5.5(c).

1.44 “Disputed GUC Fund” means the segregated account established under Section

5.5(e).

1.45 “Distribution” means any distribution made under the Plan.

1.46 “Distribution Date” means any date on which a Distribution is made or to be

made to holders of Allowed Claims under this Plan.

1.47 “Effective Date” means the first Business Day after the conditions to

effectiveness of the Plan set forth in Section 7.2 have been satisfied or waived.

1.48 “Effective Date Cash” means all Cash held by or on behalf of the Debtors as of the

Effective Date.

1.49 “Encumbrances” means, collectively, any and all security interests, liens, pledges,

Claims, levies, charges, escrows, encumbrances, options, rights of first refusal, transfer

restrictions, conditional sale contracts, title retention contracts, mortgages, hypothecations,

indentures, security agreements or other agreements, arrangements, contracts, commitments,

understandings or obligations of any kind whatsoever, whether written or oral.

1.50 “Entity” has the meaning assigned to such term in Bankruptcy Code section

101(15).

1.51 “Estate” or “Estates” means, individually or collectively, the estate or estates of

the Debtors created under Bankruptcy Code section 541.

1.52 “Fee Application Deadline” has the meaning assigned to such term in Section

5.21.

1.53 “Final Administrative Expense Claims Bar Date” has the meaning assigned to

such term in Section 5.20.

1.54 “Final DIP Order” means the Final Order entered by the Bankruptcy Court on

November 12, 2019 authorizing the Debtors’ use of cash collateral and entry into postpetition

financing [Docket No. 221].

1.55 “Final Order” means an order or judgment of the Bankruptcy Court as to which

the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as

to which no appeal, petition for certiorari, or other proceedings for reargument or rehearing shall


6

then be pending; provided, however, that if an appeal, writ of certiorari, reargument, or rehearing

thereof has been filed or sought, such order shall have been affirmed by the highest court to

which such order was appealed, or certiorari shall have been denied or reargument or rehearing

shall have been denied or resulted in no modification of such order, and the time to take any

further appeal, petition for certiorari, or move for reargument or rehearing shall have expired;

provided, further, that the possibility that a motion under Bankruptcy Code section 502(j), Rule

59 or Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the

Bankruptcy Rules, may be but has not then been filed with respect to such order, shall not cause

such order not to be a Final Order.

1.56 “First Administrative Expense Claims Bar Date” means December 23, 2019.

1.57 “Forbearance Agreement” means that certain Forbearance Agreement and

Limited Waiver, dated November 20, 2018, between the Agera Opco Entities, BP, and Agera

Holdings, LLC.

1.58 “General Unsecured Claim” means any Unsecured Claim against any Debtor that

is not an Administrative Expense Claim, Professional Fee Claim, Priority Tax Claim, Non-Tax

Priority Claim or Intercompany Claim.

1.59 “General Unsecured Creditor Interest” means an interest in the Liquidation Trust

allocable to the respective holders of Allowed General Unsecured Claims (and any successors,

transferees, or assigns thereof) under the Plan.

1.60 “Governmental Unit” has the meaning assigned to such term in Bankruptcy Code

section 101(27).

1.61 “Guarantee Proceeds” has the meaning assigned to such term in Section 4.2.

1.62 “Guaranties” means the guaranties in favor of BP made by Greg Lindberg and

Global Health Technology Group, LLC that guaranteed the obligations of the Agera Opco

Entities and Agera Holdings, LLC under the Senior Lien Supply Agreement and the Forbearance

Agreement.

1.63 “GUC Budget Excess” means an amount, as of the Effective Date, after

accounting for any amounts reserved for Claims, equal to fifty percent (50%) of any unused

portion of the following line items set forth in the Approved Budget: (i) the REC Budget Line

Item; (ii) the Sales Tax Budget Line Item; and (iii) Priority Claims Budget Line Item; and after

the Effective Date, inclusive of fifty percent (50%) of any funds reserved from the foregoing

budget line items in the event they are not used to pay Claims provided, however, that the GUC

Budget Excess shall not exceed $1.5 million in the aggregate.

1.64 “Initial Liquidation Trust Funding” means $2.25 million, to be funded from the

Effective Date Cash.


7

1.65 “Insurance Policies” means all insurance policies of the Debtors, including any

D&O Policy.

1.66 “Interests” means any and all prepetition equity interests in any Debtor arising

from any form of equity securities, as defined in Bankruptcy Code section 101(16), including,

without limitation, any prepetition common and preferred stock or member interests issued and

outstanding, and all options, warrants, and other rights relating thereto.

1.67 “Intercompany Claims” means the Claims of a Debtor against any other Debtor,

and shall exclude any claims of a Debtor against a non-Debtor Affiliate or a non-Debtor

subsidiary.

1.68 “Interim DIP Order” means the interim order entered by the Bankruptcy Court on

October 8, 2019 authorizing the Debtors’ use of cash collateral and entry into postpetition

financing [Docket No. 47].

1.69 “Liquidation Trust” means the trust established under Section 5.4 and the

Liquidation Trust Agreement.

1.70 “Liquidation Trust Agreement” means the agreement between the Debtors and the

Liquidation Trustee that, among other things, establishes the Liquidation Trust and describes the

powers, duties, and responsibilities of the Liquidation Trustee, substantially in the form included

in the Plan Supplement, which form shall be approved in writing by the Committee.

1.71 “Liquidation Trust Assets” means (a) the Avoidance Actions (other than causes of

action arising under Bankruptcy Code section 549 related to the Prepetition Collateral and any

related action under Bankruptcy Code section 550); (b) the Debtors’ commercial tort claims; (c)

the Debtors’ claims or Causes of Action against the Debtors’ directors and officers; (d) claims or

causes of action that may be satisfied by Insurance Policies, each only to the extent such Claims

or Causes of Action do not constitute Prepetition Collateral; (e) the Initial Liquidation Trust

Funding; (f) the Briarcliff Membership Interests; (g) the GUC Budget Excess; (h) the right to

receive Guarantee Proceeds; (i) the right to receive the CBLIC Intercreditor Proceeds; (j) any

assets of the Debtors not otherwise distributed or administered under the Plan; and (k) any

proceeds or product of the foregoing. Notwithstanding the foregoing, the Liquidation Trust

Assets shall not include (i) the Posted Collateral and any Causes of Action relating thereto, (ii)

except as otherwise provided herein, the Prepetition Collateral, or (iii) any cause of action

against the Released Parties.

1.72 “Liquidation Trust Expense Fund” means a reserve established under Section

5.5(f).

1.73 “Liquidation Trust Expenses” means all fees and expenses of the Liquidation

Trust, the Liquidation Trustee, and any Professionals retained by the Liquidation Trustee or

Liquidation Trust after the Effective Date; provided, however, that any fees or expenses


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(including legal) incurred by the Liquidation Trustee in connection with collecting or recovering

any Prepetition Collateral, including the Posted Collateral, shall not be considered Liquidation

Trust Expenses.

1.74 “Liquidation Trustee” means the Person designated by the Committee, after

consultation with BP, in the Plan Supplement and approved by the Bankruptcy Court pursuant to

the Confirmation Order to serve as the liquidation trustee.

1.75 “Non-Tax Priority Claim” means a Claim, other than an Administrative Expense

Claim, Professional Fee Claim, DIP Financing Claim, or Priority Tax Claim, that is entitled to

priority in payment under Bankruptcy Code section 507(a)(1), (2) (3), (4), (5), (6), (7), or (9).

1.76 “Other Secured Claim” means any Secured Claim (other than the Prepetition BP

Secured Claim and the Prepetition CBLIC Claims) under Bankruptcy Code section 506.

1.77 “Person” means any individual, corporation, partnership, association, joint

venture, limited liability company, limited liability partnership, estate, trust, receiver, trustee,

unincorporated organization or Governmental Unit or subdivision thereof or other Entity.

1.78 “Petition Date” means October 4, 2019, the date on which the Debtors filed

voluntary petitions for relief under chapter 11 of the Bankruptcy Code.

1.79 “Plan” means this Second Amended Joint Chapter 11 Plan of Liquidation of

Agera Energy LLC, et al., and any exhibits annexed hereto or otherwise filed in connection with

the Plan, and any documents delivered in connection herewith, as the same may be amended or

modified from time to time by any duly authorized and permitted amendment or modification.

1.80 “Plan Supplement” means the schedules and exhibits to the Plan to be filed with

the Bankruptcy Court at least ten (10) calendar days prior to the Voting Deadline (as defined in

the Disclosure Statement).

1.81 “Posted Collateral” means collateral, including, without limitation, cash, surety

bonds, and letters of credit, posted by any Debtor (or by BP on behalf of any Debtor) to any

independent system operator, regional transmission operator, utility, local distribution company,

state public utility commission or similar governing body, or other beneficiary.

1.82 “Postpetition Collateral” means the collateral securing the DIP Financing Claims.

1.83 “Postpetition Secured Party” means BP.

1.84 “Prepetition BP Secured Claim” means all obligations owed by the Debtors to BP

under the Prepetition BP Secured Loan Documents.

1.85 “Prepetition BP Secured Loan Documents” means (i) that certain Preferred

Supplier Agreement dated effective as of October 2, 2015 (as amended, modified, or


9

supplemented) and (ii) each of the Related Agreements (as defined in the Preferred Supplier

Agreement), including that certain ISDA 2002 Master Agreement, dated as of May 5, 2015,

together with the Schedule, Credit Support Annex, Power Annex, the Gas Annex and the

Renewable Energy Certificates Annex thereto and all confirmations thereunder, as amended by

that certain Amendment dated as of October 2, 2015, and as further amended, modified or

supplemented, among the Agera Opco Entities and BP.

1.86 “Prepetition CBLIC Claims” means all obligations owed by Agera Energy LLC to

CBLIC under that certain Junior Loan and Security Agreement, dated February 15, 2018,

between Agera Energy LLC and CBLIC.

1.87 “Prepetition Collateral” means the collateral securing the Prepetition BP Secured

Claim, including, without limitation, the Posted Collateral.

1.88 “Priority Claims Budget Line Item” means the $750,000 line item for payment of

priority claims set forth in the Approved Budget.

1.89 “Priority Tax Claim” means a Claim or a portion of a Claim of a Governmental

Unit against any Debtor that is entitled to priority in payment under Bankruptcy Code sections

502(i) and 507(a)(8).

1.90 “Professional Fee Claim” means any Claim of a Professional for compensation,

indemnification, or reimbursement of costs and expenses incurred on or before the Effective

Date pursuant to Bankruptcy Codes sections 327, 328, 330, 331, 503(b), or 1103(a), plus any

fees and expenses related to the final fee application of a Professional.

1.91 “Professional Fee Escrow Account” means the account to be established on the

Effective Date and funded with the Effective Date Cash, in an amount equal to the sum of the

Professional Fee Claims not yet satisfied as of the Effective Date.

1.92 “Professionals” means all Persons retained by order of the Bankruptcy Court in

connection with the Bankruptcy Cases, pursuant to Bankruptcy Code sections 327, 328, or 1103,

excluding any ordinary course professionals.

1.93 “Pro Rata” means, in connection with a particular Allowed Claim and in

connection with any Distribution, the ratio between the amount of such Allowed Claim and the

aggregate amount of all Allowed Claims in such Class or Classes entitled to such Distribution.

1.94 “REC Budget Line Item” means the $1,623,686 line item for payment of

renewable energy certificates or alternative compliance payments set forth in the Approved

Budget.

1.95 “Record Date” has the meaning assigned to such term in Section 9.9.


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1.96 “Released Parties” means collectively and in each case in their capacity as such:

(a) the Debtors; (b) the Committee and its members; (c) BP; and (d) with respect to each of the

foregoing entities in clauses (a) through (c), such entities’ officers, directors, and managers,

funds, affiliates, employees, partners, managers, investment advisors, agents, representatives,

principals, consultants, attorneys, professional advisors, heirs, executors, successors and assigns

(each in their capacity as such), including, without limitation, (i) Todd Sandford, Mark

Linzenbold, Stephen Gray, and Raima Jamal, (ii) McDermott Will & Emery LLP, (iii)

GlassRatner Capital & Advisory Group LLC, (iv) Miller Buckfire & Co., LLC and Stifel,

Nicolaus & Co., Inc., (v) Kilpatrick Townsend & Stockton LLP, (vi) Dundon Advisers LLC, and

(vii) Bankruptcy Management Solutions, Inc. (d/b/a Stretto); provided, however for avoidance of

doubt, that the “Released Parties” do not include Eli Global LLC, Greg Lindberg, CBLIC, or

Global Health Technology Group, LLC, any of their affiliates except the Debtors, or any of the

Debtors’ former directors or officers not identified in this Section 1.96.

1.97 “Releasing Parties” means collectively and in each case in their capacity as such:

(a) the Released Parties identified in subsection (a)–(c) and those Released Parties identified in

subsection (d) of the definition of “Released Parties” on behalf of whom the parties identified in

subsections (a)–(c) of the definition of “Released Parties” have the authority, including under

any agreement or applicable non-bankruptcy law, to grant the Third Party Release set forth in

Section 8.7; (b) the holders of all Claims and Interests who vote to accept the Plan; (c) the

holders of all Claims or Interests who are deemed to accept the Plan and do not timely submit a

duly-completed opt-out form in accordance with the Disclosure Statement Order; (d) the holders

of all Claims or Interests whose vote to accept or reject the Plan is solicited but who do not vote

either to accept or to reject the Plan; (e) the holders of all Claims or Interests who vote to reject

the Plan but do not opt out of granting the releases set forth herein; (f) all other holders of Claims

and Interests (including holders of Claims and Interests who are deemed to reject the Plan) who

do not timely submit a duly completed opt-out form in accordance with the Disclosure Statement

Order; (g) Briarcliff Property Group, LLC, and (h) with respect to each of the foregoing entities,

such entities’ current directors, current officers, funds, affiliates, members, employees, partners,

managers, investment advisors, agents, representatives, principals, consultants, attorneys,

professional advisors, heirs, executors, successors and assigns (each in their capacity as such).

1.98 “Retained Information” means all documents and files, including electronic data

hosted on remote servers, necessary to the prosecution of the Causes of Action and Claims

reconciliation process.

1.99 “Sales Tax Budget Line Item” means the $2.5 million line item for payment of

sales taxes set forth in the Approved Budget.

1.100 “Scheduled Claim” means a Claim that is listed in the Debtors’ Schedules.

1.101 “Schedules” means the schedules of Assets and liabilities, schedules of executory

contracts and unexpired leases, statements of financial affairs, and other schedules and

statements filed by the Debtors pursuant to Bankruptcy Rule 1007, and any amendments thereto.


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1.102 “Secured Claim” means a Claim secured by a “lien,” as that term is defined in

Bankruptcy Code section 101(37), including, but not limited to, a judicial lien as that term is

defined in Bankruptcy Code section 101(36), against any property of the Estates, but only to the

extent of the value, as determined by the Bankruptcy Court pursuant to Bankruptcy Code section

506(a) and Bankruptcy Rule 3012 or as otherwise agreed to, of such Creditor’s interest in any

Debtor’s interest in such property.

1.103 “Secured Creditor” means the holder of a Secured Claim.

1.104 “Senior Lien Secured Party” means BP.

1.105 “Senior Lien Supply Agreement” means that certain Preferred Supplier

Agreement between the Agera Opco Entities and BP, dated October 2, 2015 (as amended on

May 15, 2017 and February 9, 2018).

1.106 “Stamp or Similar Tax” means any stamp tax, recording tax, conveyance fee,

intangible or similar tax, mortgage tax, personal or real property tax, real estate transfer tax, sales

tax, use tax, transaction privilege tax (including, without limitation, such taxes on prime

contracting and owner-builder sales), privilege taxes (including, without limitation, privilege

taxes on construction contracting with regard to speculative builders and owner builders), and

other similar taxes or fees imposed or assessed by any Governmental Unit.

1.107 “Standing Motion” means the Motion of the Official Committee of Unsecured

Creditors for Order Granting (I) Leave, Standing, and Authority to Commence Prosecute

Certain Claims on Behalf of the Debtors’ Estates Against BP Energy Company and (II) Related

Relief [Docket No. 518].

1.108 “Statutory Fees” means all fees for which the Debtors are obligated pursuant to 28

U.S.C. § 1930(a)(6), together with interest, if any, pursuant to 31 U.S.C. § 3717.

1.109 “Subordinate Lienholders” means AGH Parent LLC and Bainbridge Energy

Finance Fund LLC.

1.110 “Subordinated Creditor Fund” means the segregated account established under

Section 5.5(g).

1.111 “Tax Information” has the meaning assigned to such term in Section 9.14(a).

1.112 “Tax Information Request” has the meaning assigned to such term in Section

9.14(b).

1.113 “Third Party Release” has the meaning assigned to such term in Section 8.7.

1.114 “U.S. Trustee” means the Office of the United States Trustee for Region 2.


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1.115 “Unclaimed Distribution” means any Distribution that remains unclaimed after

ninety (90) days following any Distribution Date, including, without limitation, (i) checks (and

the funds represented thereby) that have been returned as undeliverable without a proper

forwarding address, (ii) funds representing checks that have not been paid, and (iii) checks (and

the funds represented thereby) that were not mailed or delivered because of the absence of a

valid address.

1.116 “Unsecured Claim” means any Claim that is not secured by an offset or “lien,” as

that term is defined in Bankruptcy Code section 101(37), including, but not limited to, a “judicial

lien,” as that term is defined in Bankruptcy Code section 101(36), against any property of the

Estates, but only to the extent of the “value,” as determined by the Bankruptcy Court pursuant to

Bankruptcy Code section 506(a) and Bankruptcy Rule 3012, or as otherwise agreed to, of such

Creditor’s interest in the Debtor’s interest in such property.

1.117 “Voting Agent” means Stretto, which has been retained by the Debtors to perform

certain solicitation and other administrative services.

B. Rules of Interpretation

For purposes of the Plan: (a) where appropriate in the relevant context, each term,

whether stated in the singular or the plural, includes both the singular and the plural; (b) unless

otherwise provided in this Plan, any reference in this Plan to a contract, instrument, release,

indenture or other agreement or document being in a particular form or on particular terms and

conditions means that such document will be substantially in such form or substantially on such

terms and conditions; (c) unless otherwise provided in this Plan, any reference in this Plan to an

existing document or appendix filed or to be filed means such document or appendix, as it may

have been or may be amended, modified, or supplemented under this Plan; (d) unless otherwise

specified herein, any reference to a Person as a holder of a Claim or Interest includes that

Person’s successors, assigns, and affiliates; (e) unless otherwise specified, all references in this

Plan to Sections and Articles are references to Sections and Articles of or to the Plan; (f) the

words “herein,” “hereto,” and “hereof” refer to this Plan in its entirety rather than to a particular

portion of the Plan; and (g) the rules of construction set forth in Bankruptcy Code section 102

will apply to the Plan. To the extent that this Plan is inconsistent with the Disclosure Statement,

unless such document specifically states otherwise, the provisions of the Plan shall control.

ARTICLE 2 - PAYMENT OF CLAIMS AND FEES NOT REQUIRED TO BE

CLASSIFIED

2.1 Claims and Fees Not Classified.

No Classes are designated for DIP Financing Claims, Administrative Expense Claims,

Professional Fee Claims, Priority Tax Claims, Non-Tax Priority Claims, Intercompany Claims,

or Statutory Fees.


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2.2 DIP Financing Claims.

The DIP Financing Claims are Allowed in full. All Allowed DIP Financing Claims shall

be paid in full, in Cash on the Effective Date or as soon thereafter as reasonably practicable.

2.3 Administrative Expense Claims.

All Allowed Administrative Expense Claims shall be paid in full, in Cash in such

amounts as may be Allowed by the Bankruptcy Court (a) as soon as practicable following the

later of the Effective Date or the date upon which the Court enters a Final Order allowing any

such Administrative Expense Claim, (b) as otherwise provided in the Bankruptcy Code or

approved by the Bankruptcy Court, or (c) as agreed by the holder of any such Administrative

Expense Claim. If any Disputed Administrative Expense Claim exists on the Effective Date,

then the Liquidation Trustee shall hold and maintain Cash in the Disputed Confirmation Reserve

in an amount equal to all outstanding Disputed Administrative Expense Claims until such dispute

is resolved consensually or by Final Order. Except with respect to the GUC Budget Excess, any

amounts reserved to satisfy Administrative Expense Claims that are ultimately Disallowed shall

remain collateral securing the Prepetition BP Secured Claim and shall be distributed to BP on

account of the Prepetition BP Secured Claim upon disallowance of such Administrative Expense

Claims.

2.4 Professional Fee Claims

All Allowed Professional Fee Claims shall be paid in full, in Cash in such amounts as

may be Allowed by the Bankruptcy Court (a) as soon as practicable following the later of the

Effective Date or the date upon which the Court enters a Final Order allowing any such

Professional Fee Claim, (b) as otherwise provided in the Bankruptcy Code or approved by the

Bankruptcy Court, or (c) as may be agreed upon between the holder of any such Professional Fee

Claim and the Debtors. If any Disputed Professional Fee Claim exists on the Effective Date,

then the Liquidation Trustee shall hold and maintain Cash in the Professional Fee Escrow

Account in an amount equal to all outstanding Disputed Professional Fee Claims until such

dispute is resolved consensually or by Final Order. Except with respect to the GUC Budget

Excess, any amounts reserved to satisfy Professional Fee Claims that are ultimately Disallowed

shall remain collateral securing the Prepetition BP Secured Claim and shall be distributed to BP

on account of the Prepetition BP Secured Claim upon disallowance of such Professional Fee

Claims.

2.5 Priority Tax Claims.

Unless otherwise agreed to by the parties, each holder of an Allowed Priority Tax Claim

will receive Cash of a total value, as of the Effective Date, equal to the Allowed amount of such

Priority Tax Claim either (a) in full on the Effective Date, or (b) in regular installment payments

over a period ending not later than five (5) years after the Petition Date, which treatment is not

less favorable than that provided to the General Unsecured Creditors, in accordance with


14

Bankruptcy Code section 1129(a)(9)(C); provided, however, that all Allowed Priority Tax

Claims that are not due and payable on or before the Effective Date shall be paid in the ordinary

course of business in accordance with the terms thereof. If any Disputed Priority Tax Claim

exists on the Distribution Date, then the Liquidation Trustee shall hold and maintain Cash in the

Disputed Confirmation Reserve in an amount equal to all outstanding Disputed Priority Tax

Claims until such dispute is resolved consensually or by Final Order. Except with respect to the

GUC Budget Excess, any amounts reserved to satisfy Priority Tax Claims that are ultimately

Disallowed shall remain collateral securing the Prepetition BP Secured Claim and shall be

distributed to BP on account of the Prepetition BP Secured Claim upon disallowance of such

Priority Tax Claims.

2.6 Non-Tax Priority Claims.

Each holder of an Allowed Non-Tax Priority Claim will receive Cash on the Effective

Date of a total value, as of the Effective Date or as otherwise provided in the Bankruptcy Code

or approved by the Bankruptcy Court, equal to the full Allowed amount of such Non-Tax

Priority Claim, except to the extent that a holder of such claim agrees to different treatment;

provided, however, that all Allowed Non-Tax Priority Claims that are not due and payable on or

before the Effective Date shall be paid in the ordinary course of business in accordance with the

terms thereof. If any Disputed Non-Tax Priority Claim exists on the Distribution Date, then the

Liquidation Trustee shall hold and maintain Cash in the Disputed Confirmation Reserve in an

amount equal to all outstanding Disputed Non-Tax Priority Claims until such dispute is resolved


reserved to satisfy Non-Tax Priority Claims that are ultimately Disallowed shall remain collateral


Prepetition BP Secured Claim upon disallowance of such Non-Tax Priority Claims.

2.7 Intercompany Claims.

As a result of substantive consolidation of the Debtors for Distribution purposes under

the Plan, as provided in Section 5.2, holders of Intercompany Claims will not receive any

Distribution of property under the Plan on account of their Intercompany Claims and, on the

Effective Date, the Intercompany Claims will be cancelled

2.8 Statutory Fees.

On the Effective Date and thereafter as may be required, the Liquidation Trustee shall

pay all Statutory Fees when due and payable. The obligations under this Section 2.8 shall remain

until the entry of a final decree closing the Bankruptcy Cases, a Final Order converting the

Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, or a Final Order dismissing

the Bankruptcy Cases.


15

ARTICLE 3 - CLASSIFICATION OF CLAIMS AND INTERESTS

3.1 Criterion of Class.

A Claim is in a particular Class only to the extent that the Claim qualifies within the

description of that Class, and is in a different Class or Classes to the extent that the remainder of

the Claim qualifies within the description of the different Class or Classes.

3.2 Classification.

The Plan is premised on the substantive consolidation of the Debtors with respect to the

voting and treatment of all Claims and Interests, as provided below. The following summary is

for the convenience of all interested parties and is superseded for all purposes by the

classification, description, and treatment of Claims and Interests in ARTICLE 4 of the Plan.

3.3 Class Categories.

The following Classes of Claims and Interests are designated pursuant to and in

accordance with Bankruptcy Code section 1123(a)(1), which Classes shall be mutually

exclusive:

Class Class Designation Status/Voting Rights

Class 1A Allowed Other Secured Claims Unimpaired/Deemed to Accept

Class 1B Allowed Prepetition BP Secured Claim Impaired/Entitled to Vote

Class 2 Allowed General Unsecured Claims Impaired/Entitled to Vote

Class 3 Allowed BP Deficiency Claim and Allowed BP

Subordinated Claim

Impaired/Entitled to Vote

Class 4 Allowed Prepetition CBLIC Claims Impaired/Entitled to Vote

Class 5 Interests Impaired/Deemed to Reject

ARTICLE 4 - TREATMENT OF CLASSES OF CLAIMS AND INTERESTS

The following treatment of and consideration to be received by holders of Allowed

Claims and Interests under this Plan shall be in full settlement, release, and discharge of such

Allowed Claims and Interests.

4.1 Class 1A (Allowed Other Secured Claims).

Each holder of an Allowed Other Secured Claim shall receive on the Effective Date

(except to the extent that a holder of an Allowed Other Secured Claim agrees to less favorable

treatment): (i) Cash in an amount equal to such Other Secured Claim; (ii) return of the collateral

securing such Other Secured Claim; (iii) such other treatment that will render such Other

Secured Claim unimpaired under Bankruptcy Code section 1124; or (iv) such other treatment as

the Debtors and the applicable holder of an Allowed Other Secured Claim may agree. Any


16

Deficiency Claim that may arise on account of the present lack of collateral or otherwise

resulting from the aforesaid treatment shall be included in and treated as a Class 2 Allowed

General Unsecured Claim. For the avoidance of doubt, the Subordinate Lienholders and their

successors will not have Allowed Claims and their liens, if any, shall be released.

4.2 Class 1B (Allowed Prepetition BP Secured Claim).

Each holder of an Allowed Prepetition BP Secured Claim shall receive on the Effective

Date, or as soon as reasonably practicable thereafter, all of the following, but not including cash

in an amount necessary to pay or reserve for the Confirmation Amount: the return of proceeds

from the sale of the Prepetition Collateral and any Prepetition Collateral, including, among other

things, the Posted Collateral, subject to Other Secured Claims. BP shall be deemed to (i) waive

any diminution Claim against the Debtors and their Estates under the Final DIP Order, and (ii)

release any lien it holds on (a) Briarcliff that is evidenced by a mortgage or otherwise, as well as

any lien on the Briarcliff Membership Interests, and (b) the Liquidation Trust Assets.

The aggregate Allowed amount of the Prepetition BP Secured Claim shall be the sum of

(i) $128,222,666 and (ii) the amount of any draws on Posted Collateral pursuant to the

Prepetition BP Secured Loan Documents, minus any Adequate Protection Cash Payments (as

defined in the Final DIP Order) applied to the Prepetition BP Secured Claim prior to the

Effective Date.

In no event shall BP receive Distributions under the Plan that exceed the aggregate

Allowed amount of the Prepetition BP Secured Claim unless holders of General Unsecured

Claims have been paid in full. If BP receives Distributions under the Plan that exceed the

Allowed amount of the Prepetition BP Secured Claim before holders of General Unsecured

Claims are paid in full, BP shall remit any such excess amount to the Liquidation Trust, and such

amounts shall constitute Liquidation Trust Assets. In addition, if holders of Prepetition CBLIC

Claims receive Distributions under the Plan that are paid to BP pursuant to an intercreditor

agreement before holders of General Unsecured Claims are paid in full, then BP shall pay such

Distributions to the Liquidation Trust and such amounts shall constitute Liquidation Trust Assets

(the “CBLIC Intercreditor Proceeds”).

BP is pursuing and attempting to collect on the Guaranties. BP shall, upon request in

writing by the Liquidation Trustee, provide status updates to the Liquidation Trustee with respect

to the pursuit and collection of the Guaranties. Each time BP receives proceeds on account of

the Guaranties (the “Guarantee Proceeds”), BP shall pay, without recoupment or offset, 10% of

the Guarantee Proceeds, net of any expenses incurred in the enforcement and collection thereof,

to the Liquidation Trust no later than fourteen (14) days after BP’s receipt of such Guarantee

Proceeds. The amount of Guarantee Proceeds transferred by BP to the Liquidation Trust shall

constitute Liquidation Trust Assets and shall not exceed $3 million (the “Maximum Guaranty

Proceeds”). If BP determines to cease pursuing enforcement and collection of the Guaranties

before the Maximum Guaranty Proceeds are transferred to the Liquidation Trust, BP shall notify

the Liquidation Trustee of its intention to do so and, if requested by the Liquidation Trustee,


17

shall cooperate with the Liquidation Trustee to enable it to take over pursuit of the Guaranties.

BP may settle the claims under the Guaranties in its absolute and sole discretion provided that it

gives prior notice to the Liquidation Trustee by providing an opportunity for the Liquidation

Trustee to consult with BP.

4.3 Class 2 (Allowed General Unsecured Claims).

Each holder of an Allowed General Unsecured Claim shall receive one or more

Distributions equal to its Pro Rata share of the General Unsecured Creditor Interests as such

Distributions become available as is reasonably practicable in the reasonable discretion of the

Liquidation Trustee. The Liquidation Trust, in the Liquidation Trustee’s discretion, shall make

periodic Distributions of available Cash from the Liquidation Trust Assets to the holders of

General Unsecured Creditor Interests at any time after the Effective Date.

4.4 Class 3 (Allowed BP Deficiency Claim and Allowed BP Subordinated

Claim).

Subject to Section 4.5, (i) the BP Deficiency Claim and the BP Subordinated Claim shall

be deemed Allowed and subordinated to Class 2 Allowed General Unsecured Claims, and (ii)

after all Allowed General Unsecured Claims are paid in full, each holder of an Allowed BP

Deficiency Claim and Allowed BP Subordinated Claim shall receive its Pro Rata share of the

proceeds of the Subordinated Creditor Fund as such funds become available as is reasonably

practicable in the reasonable discretion of the Liquidation Trustee.

4.5 Class 4 (Allowed Prepetition CBLIC Claims).

Upon the consent of the holder(s) of the Prepetition CBLIC Claims, such Prepetition

CBLIC Claims shall be deemed subordinated to the Class 2 General Unsecured Claims pursuant

to Bankruptcy Code section 510(c) or recharacterized as equity, and any liens purportedly

securing such Claims shall be released on the Effective Date. Absent the consent of the holder(s)

of the Prepetition CLBIC Claims, the Debtors, BP, and the Committee (or after the Effective

Date, the Liquidation Trustee) shall cooperate in seeking subordination or recharacterization of

such claims. If the Prepetition CBLIC Claims are not subordinated or recharacterized as equity

as of the Effective Date and ultimately become Allowed Claims, such Claims shall be deemed

General Unsecured Claims and shall be treated in accordance with Section 4.3 to the extent that

such General Unsecured Claims become Allowed General Unsecured Claims; provided,

however, that pursuant to Bankruptcy Code 510(a) and that certain Second Amended and

Restated Intercreditor Agreement by and among BP, CBLIC, the Subordinate Lienholders, and

certain of the Debtors, dated February 9, 2018, any Allowed Prepetition CBLIC Claims are

contractually subordinated to the Prepetition BP Secured Claim and the BP Subordinated Claim

and shall not receive any distributions on account of such claims until the BP Deficiency Claim

and the Allowed BP Subordinated Claim have been paid in full.


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4.6 Class 5 (Interests).

No holder of an Interest shall be entitled to a Distribution under the Plan on account of

such Interest. On the Effective Date, all Interests shall be retired, cancelled, extinguished, and/or

discharged.

ARTICLE 5 - MEANS OF IMPLEMENTATION OF THE PLAN

5.1 Joint Chapter 11 Plan.

The Plan is a joint chapter 11 plan for each Debtor, with the Plan for each Debtor being

non-severable and mutually dependent on the Plan for each Debtor.

5.2 Substantive Consolidation of Claims Against Debtors for Plan

Purposes Only.

The Plan is premised on the substantive consolidation of all of the Debtors with respect to the

treatment of all Claims and Interests, as provided below. The Plan shall serve as a request by the

Debtors, in lieu of a separate motion, to the Bankruptcy Court that it grant substantive

consolidation with respect to the treatment of all Claims and Interests as follows. On the

Effective Date, (a) all Assets and liabilities of the Debtors will, solely for voting and Distribution

purposes, be merged or treated as though they were merged; (b) all guarantees of the Debtors of

the obligations of any other Debtor and any joint or several liability of any of the Debtors shall

be eliminated; (c) each and every Claim or Interest against any Debtor shall be deemed a single

Claim against, and a single obligation of, the Debtors and all Claims filed against more than one

Debtor for the same liability shall be deemed one Claim against any obligation of the Debtors;

and (d) all transfers, disbursements, and Distributions on account of Claims made by or on behalf

of any of the Debtors’ Estates hereunder will be deemed to be made by or on behalf of all of the

Debtors’ Estates. Holders of Allowed Claims entitled to Distributions under the Plan shall be

entitled to their share of Assets available for Distribution to such Claim without regard to which

Debtor was originally liable for such Claim. Except as set forth herein, such limited substantive

consolidation shall not (other than for purposes related to the Plan) affect the legal and corporate

structures of the Debtors.

5.3 Plan Funding Mechanism.

The Plan shall be funded from the Effective Date Cash and any other Assets of the

Estates, except as expressly set forth herein.

5.4 Formation of the Liquidation Trust.

On the Effective Date, the Liquidation Trust shall be formed pursuant to the Plan and

established and become effective in accordance with the Liquidation Trust Agreement to

liquidate the Liquidation Trust Assets, the Prepetition Collateral, and the Postpetition Collateral,


19

and to enable the Liquidation Trustee to distribute same in accordance with the Plan and the

Liquidation Trust Agreement. The Liquidation Trust shall be established for the sole purpose of

liquidating and distributing the Liquidation Trust Assets, the Prepetition Collateral, and the

Postpetition Collateral in accordance with Treasury Regulation section 301.7701-4(d), with no

objective to continue or engage in the conduct of a trade or business. On the Effective Date, the

Debtors shall transfer all of the Liquidation Trust Assets, the Prepetition Collateral, and the

Postpetition Collateral to the Liquidation Trust, subject only to the liens of Secured Creditors (as

may be modified in the Plan), and otherwise free and clear of liens, Claims, and Interests. On or

before the Effective Date, the Liquidation Trust Agreement shall be executed and, upon the

Effective Date, shall become effective without further action by any party.

The terms of the Liquidation Trust Agreement shall control as to all matters applicable to

the Liquidation Trust. To the extent there is any conflict between the Liquidation Trust

Agreement and the Plan, the Plan shall govern.

5.5 Establishment of Reserves and Escrow Accounts.

(a) At least three (3) days prior to the Confirmation Hearing, the Debtors shall

file with the Bankruptcy Court a notice that reflects the proposed amounts of the Confirmation

Fund.

(b) Confirmation Fund. On the Effective Date, or as soon thereafter as is

practicable, the Liquidation Trustee shall establish the Confirmation Fund, which shall be funded

from the Effective Date Cash in an amount equal to the Confirmation Amount. The

Confirmation Fund shall be used to pay all Allowed Administrative Expense Claims, Allowed

Other Secured Claims, Allowed Priority Tax Claims, and Allowed Non-Tax Priority Claims.

Any amounts remaining in the Confirmation Fund, excluding the Initial Liquidation Trust

Funding and the GUC Budget Excess, after: (i) all Allowed Administrative Expense Claims,

Allowed Professional Fee Claims, Allowed Other Secured Claims, Allowed Priority Tax Claims,

and Allowed Non-Tax Priority Claims are satisfied in full; and (ii) the Disputed Confirmation

Reserve, the Professional Fee Escrow Account, the Disputed GUC Fund, and the Liquidation

Trust Expense Fund have been funded, shall become available for Distribution to the holder of

the Prepetition BP Secured Claim.

(c) Disputed Confirmation Reserve. As soon as practicable after the Effective

Date, the Liquidation Trustee shall establish the Disputed Confirmation Reserve, which shall be

funded on each Distribution Date from the Effective Date Cash in an amount equal to the

Distributions that would have been made to holders of Disputed Administrative Expense Claims,

Disputed Other Secured Claims, Disputed Priority Tax Claims, and Disputed Non-Tax Priority

Claims if such Claims were Allowed Claims in their full amounts or such lower amount as to

which the holder of such Claim has agreed in writing or, in the case where any such Claim is

unliquidated and/or contingent, the greater of (i) $1, and (ii) such other amount as is reserved by

order of the Bankruptcy Court made upon motion of the holder of such Claim. The Liquidation

Trustee shall remove funds from the Disputed Confirmation Reserve as Disputed Administrative


20

Expense Claims, Disputed Other Secured Claims, Disputed Priority Tax Claims, and Disputed

Non-Tax Priority Claims are resolved, which funds shall be distributed as provided in this Plan

(including with respect to any GUC Budget Excess), and any excess shall be returned to BP.

(d) Professional Fee Escrow Account. On the Effective Date, the Liquidation

Trustee shall establish a Professional Fee Escrow Account and shall fund such Professional Fee

Escrow Account with Effective Date Cash in an amount equal to the sum of the Professional Fee

Claims. The Professional Fee Escrow Account shall be maintained in trust for the Professionals.

Such funds shall not be considered property of the Debtors’ Estates and shall not vest with the

Liquidation Trustee or the Liquidation Trust. Any amounts remaining in the Professional Fee

Escrow Account after all Allowed Professional Fee Claims are paid shall become available for

Distribution to holders of Prepetition BP Secured Claim.

(e) Disputed GUC Fund. As soon as practicable after the Effective Date, the

Liquidation Trustee shall establish the Disputed GUC Fund, which shall be funded on each

Distribution Date from the Liquidation Trust Assets in an amount equal to the Distributions that

would have been made to holders of Disputed General Unsecured Claims if such Claims were

Allowed Claims or such lower amount as to which the holder of such Claim has agreed in

writing or, in the case where any such Claim is unliquidated and/or contingent, the greater of (i)

$1, and (ii) such other amount as is reserved by order of the Bankruptcy Court made upon

motion of the holder of such Claim. The Liquidation Trustee shall remove funds from the

Disputed GUC Fund as Disputed General Unsecured Claims are resolved, which funds shall be

distributed as provided in this Plan.

(f) Liquidation Trust Expense Fund. On the Effective Date, or as soon

thereafter as is practicable, the Liquidation Trustee shall establish the Liquidation Trust Expense

Fund, the funding of which may include any Liquidation Trust Assets; provided, however, that

the Liquidation Trust Expense Fund may not include more than $750,000 of the Initial

Liquidation Trust Funding. The Liquidation Trust Expense Fund shall be used to pay the

Liquidation Trust Expenses in accordance with the Liquidation Trust Agreement, including,

without limitation, costs and expenses of (i) counsel or other advisors retained by the Liquidation

Trustee, (ii) any liquidation or administration of the Liquidation Trust Assets, and (iii) the

prosecution of Causes of Action and Claims objections. Any amounts remaining in the

Liquidation Trust Expense Fund after all Liquidation Trust Expenses are paid shall become

available for Distribution to holders of Allowed General Unsecured Claims, the Allowed BP

Deficiency Claim, the Allowed BP Subordinated Claim, and any Allowed Prepetition CBLIC

Claims in the priority of payment provided for in accordance with the provisions of the Plan.

(g) Subordinated Creditor Fund. On the date upon which all unsubordinated

Allowed General Unsecured Claims have been satisfied in full, or as soon thereafter as is

reasonably practicable, the Liquidation Trustee shall establish the Subordinated Creditor Fund,

which shall be funded by the Liquidation Trust after satisfaction in full of all Allowed General

Unsecured Claims in accordance with this Plan. The Subordinated Creditor Fund shall be used


21

to pay the Allowed BP Deficiency Claim and the Allowed BP Subordinated Claim, in the

priority of payment provided for in accordance with the provisions of the Plan.

5.6 Powers and Duties of the Liquidation Trustee.

As of the Effective Date, the Liquidation Trustee shall be appointed under Bankruptcy

Code section 1123(b)(3)(B) and shall serve in such capacity and shall have comparable authority

as a bankruptcy trustee of the Debtors as the exclusive representative of the Estates or any

corresponding provision of federal or state laws and shall succeed to all of the Debtors’ and

Estates’ rights. The powers, rights, and responsibilities of the Liquidation Trustee, all of which

shall arise upon the occurrence of the Effective Date, shall be specified in the Liquidation Trust

Agreement and shall include, but not be limited to:

(a) collecting and liquidating the Liquidation Trust Assets under the

jurisdiction of the Bankruptcy Court;

(b) using commercially reasonable efforts to obtain the return of the

Prepetition Collateral to BP;

(c) asserting, prosecuting, objecting to, pursuing, compromising, and settling

in accordance with the Liquidation Trustee’s reasonable business judgment, all matters affecting

the Estates, including, without limitation, Disputed Claims and/or other Causes of Action related

thereto, to the extent set forth in the Liquidation Trust Agreement and except as provided therein,

without further order of the Bankruptcy Court;

(d) asserting and enforcing all legal or equitable remedies and defenses

belonging to the Debtors or their Estates, including, without limitation, setoff, recoupment, and

any rights under Bankruptcy Code section 502(d);

(e) acting on behalf of the Debtors in all adversary proceedings and contested

matters then pending or that can be commenced in the Bankruptcy Court and in all actions and

proceedings pending or commenced elsewhere, and to settle, retain, enforce, dispute, or adjust

any Claim and otherwise pursue actions involving the Assets of the Debtors that could arise or be

asserted at any time under the Bankruptcy Code, unless otherwise waived, relinquished, or

transferred in the Plan;

(f) taking such actions the Liquidation Trustee deems appropriate in his or her

reasonable business judgment against any Person with respect to a Claim or Cause of Action and

commencing any process or proceeding in the Bankruptcy Court or in any court of competent

jurisdiction in accordance with applicable laws, to the extent set forth in the Liquidation Trust

Agreement;

(g) making Distributions to holders of all Allowed Claims, including

Professional Fee Claims, in accordance with the Plan and Liquidation Trust Agreement;


22

(h) proceeding with and employing all discovery devices permitted under

applicable law, including Rule 2004 of the Bankruptcy Rules, in order to investigate any Claims

or Causes of Action;

(i) employing, without further order of the Bankruptcy Court, professionals

or other Persons to assist it in carrying out its duties hereunder and under the Liquidation Trust

Agreement, and compensating and reimbursing the expenses of those professionals and other

Persons on the terms to be agreed to by the Liquidation Trustee and such professionals and other

Persons without further order of the Bankruptcy Court, to the extent set forth in the Liquidation

Trust Agreement;

(j) investing Cash in accordance with Bankruptcy Code section 345,

withdrawing and making Distributions of Cash to holders of Allowed Claims and paying taxes

and other obligations owed by the Debtors or incurred by the Liquidation Trustee from the

Liquidation Trust Expense Fund in accordance with the Plan;

(k) coordinating the turnover of property, if any, subject to rejected executory

contracts or abandonment or liquidation of any retained Assets and disposing of, and delivering

title to others of, or otherwise realizing value of, all the remaining Assets;

(l) overseeing compliance with the Debtors’ accounting, finance, and

reporting obligations and the filing of final tax returns, refund requests, audits, and other

corporate dissolution documents, if required;

(m) preparing financial statements and U.S. Trustee post-confirmation

quarterly reports, until such time such time as the Bankruptcy Court enters an order (i)

dismissing the Bankruptcy Cases, (ii) converting the Bankruptcy Cases to cases under chapter 7

of the Bankruptcy Code, or (iii) approving a final decree closing the Bankruptcy Cases;

(n) paying all other expenses for winding down the affairs of the Debtors in

accordance with a wind down budget or as otherwise agreed to by the Liquidation Trustee, and

in the event of a dispute that cannot be resolved, resolving such dispute in the Bankruptcy Court,

subject to the terms of the Plan;

(o) executing and delivering all documents, and taking all actions, necessary

to consummate the Plan, implement the Liquidation Trust Agreement, and wind down the

Debtors’ business;

(p) implementing and/or enforcing all provisions of the Plan;

(q) asserting and/or waiving, as the Liquidation Trustee deems appropriate,

any attorney-client privilege or similar privilege belonging to any of the Debtors immediately

prior to the Effective Date of the Plan; and


23

(r) such other powers as may be vested in or assumed by the Liquidation

Trustee pursuant to the Liquidation Trust Agreement, Plan, other Bankruptcy Court order, or as

may be needed or appropriate to carry out the provisions of the Plan and Liquidation Trust

Agreement.

5.7 Appointment of the Liquidation Trustee.

The Liquidation Trustee shall be deemed the Estates’ sole representative in accordance

with Bankruptcy Code section 1123 and shall have all powers, authority, and responsibilities

specified in the Plan, including, without limitation, the powers of a trustee under Bankruptcy

Code sections 704 and 1106.

5.8 Issuance of General Unsecured Creditor Interests.

(a) General Unsecured Creditor Interests. On the Effective Date or as soon as

practicable thereafter, the Debtors shall deliver to the Liquidation Trustee a list of each Person to

receive General Unsecured Creditor Interests as of the Effective Date pursuant to the Plan,

including the Allowed amounts of the Claims of, and the address of, each such Person.

(b) Transfer of General Unsecured Creditor Interests. The Liquidation Trustee

shall maintain a register of the holders of General Unsecured Creditor Interests and shall adjust,

without further order of the Bankruptcy Court, the register from time to time as General

Unsecured Claims that are Disputed Claims become Allowed. Upon notice to the Liquidation

Trustee by any holder of a General Unsecured Creditor Interest, the Liquidation Trustee shall

amend the register to reflect any transfer of a General Unsecured Creditor Interest by such holder

to a transferee as set forth in the notice; provided, however, that the Liquidation Trustee need not

reflect any transfer (or make any distribution to any transferee) and will give notice to such

holder that no transfer has been recognized in the event the Liquidation Trustee reasonably

believes that such transfer (or the distribution to such transferee) may constitute a violation of

applicable laws or might cause the Liquidation Trust to be required to register the General

Unsecured Creditor Interests, or to become a reporting company, under the Securities Exchange

Act of 1934, as amended.

5.9 Liquidation Trustee Reporting.

The Liquidation Trustee shall prepare and file with the Court, and serve upon BP and the

U.S. Trustee, such reports as are required under Section 5.24, including quarterly reports,

beginning with the first full calendar quarter after the Effective Date, regarding the liquidation or

other administration of the Assets of the Estates, Distributions made by the Liquidation Trustee,

and the status of the prosecution or settlement of any Claims and Causes of Action. The

Liquidation Trustee shall pay fees of the U.S. Trustee as provided in Section 5.24.


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5.10 Fees and Expenses of the Liquidation Trustee.

Except as otherwise ordered by the Bankruptcy Court or specifically provided for in the

Plan, the amount of Liquidation Trust Expenses and any compensation and expense

reimbursement Claims (including, without limitation, reasonable fees and expenses of counsel)

of the Liquidation Trustee arising out of the liquidation of the Assets of the Estates, the making

of Distributions under the Plan, and the performance of any other duties given to it shall be paid

from the Liquidation Trust Expense Fund and in accordance with the Liquidation Trust

Agreement; provided, however, that any fees or expenses (including legal) incurred by the

Liquidation Trustee in connection with collecting or recovering any Prepetition Collateral will be

netted against the proceeds collected therefrom.

5.11 Resignation or Removal of Liquidation Trustee.

If the Liquidation Trustee resigns or is removed, dissolves, or is incapacitated, the terms

of the Liquidation Trust Agreement shall govern regarding the designation of a successor

Liquidation Trustee, and following such designation, the successor Liquidation Trustee, without

further act, shall become fully vested with all of the rights, powers, duties, and obligations of his

or her predecessor, with the same compensation of the predecessor Liquidation Trustee. No

successor Liquidation Trustee shall in any event have any liability or responsibility for the acts

or omissions of any of his or her predecessors.

5.12 Reliance on Documents.

The Liquidation Trustee may rely, and shall be protected in acting or refraining from

acting, upon any certificates, opinions, statements, instruments or reports believed by it to be

genuine and to have been signed or presented by the proper entity, including, without limitation,

claims lists and data provided to the Liquidation Trustee by the Claims Agent, the Debtors, or the

Debtors’ financial advisor, upon which the Liquidation Trustee shall base Distributions.

5.13 Corporate Action.

The Plan will be administered by the Liquidation Trustee and all actions taken under the

Plan in the name of the Debtors shall be taken through the Liquidation Trustee in accordance

with the provisions of the Plan and the Liquidation Trust Agreement.

5.14 Liquidation and Dissolution of Debtors.

On the Effective Date, without the necessity for any other or further action to be taken by

or on behalf of the Debtors, and upon the transfer of the Liquidation Trust Assets to the

Liquidation Trust and the Prepetition Collateral to BP in accordance with ARTICLE 5 of the

Plan, the members of the board of directors or managers, as the case may be, and the respective

officers, of each of the Debtors shall be deemed to have been removed, and each such Debtor

shall be deemed dissolved for all purposes unless the Liquidation Trustee determines that


25

dissolution can have any adverse impact on the Liquidation Trust Assets, the Prepetition

Collateral, or the Postpetition Collateral; provided, however, that neither the Debtors nor any

party released pursuant to ARTICLE 8 of the Plan shall be responsible for any liabilities that

may arise as a result of non-dissolution of the Debtors.

5.15 Dissolution of Creditors’ Committee.

On the Effective Date, the Creditors’ Committee shall be deemed to be dissolved and the

members of the Creditors’ Committee shall be released and discharged from all further authority,

duties, responsibilities, and obligations arising from or related to the Bankruptcy Cases and

Professionals retained by the Committee shall be released and discharged from all further

authority, duties, responsibilities, and obligations relating to the Debtors and the Bankruptcy

Cases; provided, however, that the foregoing shall not apply to any matters concerning (a) any

Professional Fee Claims held or asserted by any Professional retained by the Committee or

reimbursement of any reasonable and documented expenses of the Committee’s members

incurred in their capacity as such, (b) any appeal from the Confirmation Order, or (c) the

withdrawal of the Standing Motion pursuant to Section 5.29.

5.16 Closing of the Bankruptcy Cases.

At such time as the Liquidation Trustee deems appropriate and in accordance with

Bankruptcy Code section 350(a) and Bankruptcy Rule 3022, the Liquidation Trustee shall seek

authority from the Bankruptcy Court to close the Bankruptcy Cases. Unless the Bankruptcy

Court orders otherwise, within fourteen (14) days after the Estates are fully administered, the

Liquidation Trustee will file and serve upon the U.S. Trustee a closing report substantially in the

form available on the Bankruptcy Court’s website in accordance with Rule 3022-1 of the Local

Bankruptcy Rules for the Southern District of New York.

5.17 Plan Distributions.

After the Effective Date, and subject to the establishment and funding of the Liquidation

Trust, the Confirmation Fund, Liquidation Trust Expense Fund, and Disputed Confirmation

Reserve under Section 5.5 and as set forth in greater detail in ARTICLE 4, Distributions shall be

made by the Liquidation Trustee in accordance with ARTICLE 2, ARTICLE 4, and ARTICLE 9.

5.18 Preservation and Abandonment of Records.

The Debtors shall preserve for the benefit of the Liquidation Trustee all Retained

Information. After the Effective Date, the Liquidation Trustee shall preserve the Retained

Information until the date that is at least one (1) year following the closing of the Bankruptcy

Cases. On the Effective Date, the Debtors shall be permitted to abandon (with or without

destruction) any information that is not Retained Information.


26

5.19 General Disposition of Assets.

Pursuant to Bankruptcy Code section 1123(a)(5) and subject to the terms of the Plan, as

soon as is reasonably practicable after the Effective Date, the Liquidation Trustee shall sell or

otherwise dispose of, and liquidate to or otherwise convert to Cash, any non-Cash Assets in such

manner as the Liquidation Trustee shall determine in his judgment in consultation with the

Secured Creditors (to the extent any such Assets are collateral of the Secured Creditors), but in

no event shall the Liquidation Trustee be prevented from returning Assets that are collateral of a

Secured Creditor to such Secured Creditor in a commercially reasonable manner.

5.20 Final Administrative Expense Claims Bar Date.

The Confirmation Order shall establish that requests for payment of Administrative

Expense Claims that were not required to be filed and served by the First Administrative

Expense Claim Bar Date (or any other subsequent bar date established by the Bankruptcy Court

for Administrative Expense Claims), other than:

(a) an Administrative Expense Claim that has become an Allowed Administrative

Expense Claim on or before the Effective Date;

(b) an Administrative Expense Claim on account of fees and expenses incurred on or

after the Petition Date by ordinary course professionals retained by the Debtor pursuant to an

order of the Bankruptcy Court; or

(c) an Administrative Expense Claim arising out of the employment by the Debtor of

an individual in the ordinary course of business from and after the Petition Date, but only to the

extent that such Administrative Expense Claim is solely for outstanding wages, commissions,

accrued benefits, or reimbursement of business expenses;

must be filed and served on or before 5:00 p.m. (prevailing Eastern Time) on or before the first

Business Day after the fourteenth (14th) day after the Confirmation Date (the “Final

Administrative Expense Claims Bar Date”).

Objections, if any, to a timely request for payment of an Administrative Expense Claim

must be filed and served on the Liquidation Trustee and the requesting party no later than ninety

(90) days after the Effective Date.

No payment or Distributions will be made on account of any Administrative Expense

Claim until such Claim becomes an Allowed Claim. Any Person asserting an Administrative

Expense Claim that was subject to the First Administrative Expense Claim Bar Date that did not

timely file and serve an application or motion seeking approval of such Administrative Expense

Claim shall be forever barred from asserting any such right to payment as against the Debtors,

the Estates, and the Liquidation Trust. Any Person asserting an Administrative Expense Claim

not subject to the First Administrative Expense Claim Bar Date that fails to file and serve an


27

application or motion seeking approval of the Administrative Expense Claim on or before the

Final Administrative Expense Claims Bar Date shall be forever barred from asserting any such

right to payment as against the Debtors, the Estates, and the Liquidation Trust.

5.21 Deadline for Filing Applications for Professional Fee Claims.

All parties seeking payment of Professional Fee Claims must file with the Bankruptcy

Court a final application and/or an application for payment of reasonable fees and expenses

under Bankruptcy Code section 503(b), as applicable, on or before the first Business Day after

the thirtieth (30th) day after the Effective Date (the “Fee Application Deadline”). Any

Professional failing to file and serve such final application or 503(b) motion on or before the Fee

Application Deadline shall be forever barred from asserting any such right to payment against

the Debtors or the Estates. Objections to such Professional Fee Claims, if any, must be filed and

served no later than fifty (50) days after the Effective Date.

5.22 Execution of Documents to Effectuate Plan.

From and after the Effective Date, the Liquidation Trustee shall have the exclusive power

and authority to execute any instrument or document to effectuate the provisions of the Plan.

Entry of the Confirmation Order shall authorize the Debtors and the Liquidation Trustee to take,

or cause to be taken, all actions necessary or appropriate to consummate and implement the

provisions of the Plan.

5.23 Disallowance of Claims Without Further Order of the Court.

As of the Effective Date, any Scheduled Claim designated as disputed, contingent, or

unliquidated in amount and for which a proof of Claim has not been filed by the Creditor by the

applicable Bar Date shall be deemed Disallowed and expunged. All Scheduled Claims that

correspond to a proof of Claim filed by a particular Creditor by the applicable Bar Date shall be

deemed to have been superseded by such later filed proof of Claim, and the Scheduled Claim,

regardless of priority, shall be expunged from the Claims register; provided however, that such

proofs of Claim shall be subject to objection in accordance with Section 9.10.

5.24 Post-Effective Date Reports and Fees.

Following the Effective Date and until the Bankruptcy Cases are closed, not less than

once every one-hundred and eighty (180) days, the Liquidation Trustee shall be responsible for

the filing of all post-Effective Date reports required during such periods with the U.S. Trustee

regarding the liquidation or other administration of property under the Liquidation Trustee’s

control pursuant to the Plan, Distributions made by the Liquidation Trustee, and other matters

required to be included in such report, and shall pay from the Liquidation Trust Expense Fund all

post-Effective Date Statutory Fees. Notwithstanding any substantive consolidation of the

Debtors under the Plan, each and every Debtor and the Liquidation Trustee shall remain


28

obligated to pay Statutory Fees to the U.S. Trustee until the particular Debtor’s case has been

closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code.

5.25 Cancellation of Notes, Instruments, Certificates, and Other

Documents.

Except as expressly provided herein, on the Effective Date, all notes, instruments,

certificates evidencing debt of, or Interests in, the Debtors and any warrants, options, and other

entitlements to purchase and/or receive Interests in the Debtors, shall be deemed surrendered and

cancelled and any obligation of the Debtors thereunder shall be discharged; provided, however,

that the liens in favor of BP under the Final DIP Order and the Prepetition BP Secured Loan

Documents shall remain attached and fully perfected against the Postpetition Collateral and the

Prepetition Collateral (other than the Liquidation Trust Assets) until the repayment in full of the

DIP Financing Claims and the return of the Postpetition Collateral and the Prepetition Collateral

(other than the Liquidation Trust Assets) to BP.

5.26 Insurance Preservation.

Nothing in the Plan, the Confirmation Order, or the Liquidation Trust Agreement, alters

the rights and obligations of the Debtors (and their Estates) and the Debtors’ insurers (and third-

party claims administrators) under the Insurance Policies or modifies the coverage or benefits

provided thereunder or the terms and conditions thereof or diminishes or impairs the

enforceability of the Insurance Policies. All of the Debtors’ rights and their Estates’ rights under

any Insurance Policy to which the Debtors and/or the Debtors’ Estates may be beneficiaries shall

vest with the Liquidation Trust for the benefit of the Beneficiaries of the Liquidation Trust and

all of the beneficiaries of such policies. For the avoidance of doubt, the Debtors are deemed to

have assumed all of the Insurance Policies.

5.27 Preservation of Causes of Action.

Except as otherwise provided in this Plan or in any contract, instrument, release, or

agreement entered into in connection with the Plan and the Final DIP Order, in accordance with

Bankruptcy Code section 1123(b), all Claims and Causes of Action that the Debtors or Estates

may have against any Person or Entity are preserved and transferred to the Liquidation Trustee

on the Effective Date, including, without limitation, any and all Causes of Action the Debtors,

Estates, or other appropriate party in interest may assert under Bankruptcy Code sections 502,

510, 522(f), 522(h), 542, 543, 544, 545, 547, 548, 549, 550, 551, 553 and 724(a).

5.28 Section 1146 Exemption from Certain Taxes and Fees

Pursuant to and to the extent set forth in Bankruptcy Code section 1146(a), any issuance,

transfer, or exchange of a security, or the making or delivery of an instrument of transfer of

property, pursuant to or in connection with this Plan shall not be subject to any Stamp or Similar

Tax or governmental assessment in the United States or by any other Governmental Unit, and the


29

Confirmation Order shall direct the appropriate federal, state or local (domestic or foreign)

governmental officials or agents to forgo the collection of any such Stamp or Similar Tax or

governmental assessment and to accept for filing and recordation instruments or other documents

evidencing such action or event without the payment of any such Stamp or Similar Tax or

governmental assessment. Such exemption specifically applies, without limitation, to all actions,

agreements and documents necessary to evidence and implement the provisions of, transactions

contemplated by and the distributions to be made under this Plan.

5.29 Withdrawal of the Standing Motion.

Within three (3) business days after the Effective Date, the Committee shall file a notice

of withdrawal of the Standing Motion.

5.30 Settlement Pursuant to Bankruptcy Rule 9019.

Pursuant to Bankruptcy Code section 1123 and Bankruptcy Rule 9019, the Plan

incorporates a compromise and settlement of various potential Claims and Causes of Action,

including those for which the Committee sought standing to bring pursuant to the Standing

Motion. The settlement of those potential Claims and Causes of Action is a cornerstone of the

Plan and necessary to achieve a beneficial and efficient resolution of the Chapter 11 Cases for all

parties in interest. The Plan shall be deemed to constitute a motion pursuant to Bankruptcy Rule

9019, seeking approval of a settlement, and the entry of the Confirmation Order shall constitute

the Bankruptcy Court’s approval of such motion, and the Bankruptcy Court’s findings shall

constitute its determination that such compromises and settlements encompassed in the Plan are

within the range of reasonableness, in the best interests of the Debtors, their Estates, their

Creditors, and other parties-in-interest, and fair and equitable.

5.31 Return of Deposits.

Unless the Debtors have agreed otherwise in a written agreement or stipulation approved

by the Bankruptcy Court, all security deposits, including Posted Collateral, provided by the

Debtors to any Entity at any time, to the extent not returned to the Debtors prior to the Effective

Date, shall be returned to the Liquidation Trustee as set forth in agreements between the Debtors

and the Entities holding such security deposits or under applicable law, without deduction or

offset of any kind.

ARTICLE 6- TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED

LEASES

6.1 General Provisions.

All executory contracts and unexpired leases of the Debtors shall be deemed rejected as

of the Effective Date, unless a particular executory contract or unexpired lease (i) has previously

been assumed or rejected pursuant to an order of the Bankruptcy Court or applicable provisions


30

of the Bankruptcy Code, (ii) has expired or otherwise terminated pursuant to its terms, or (iii) is

the subject of a separate assumption motion filed by one of the Debtors (with the consent of the

Committee and BP) under Bankruptcy Code section 365.

6.2 Notice of Deemed Rejection/Rejection Bar Date.

Any party to an executory contract or unexpired lease that is rejected in accordance with

Section 6.2 shall file a proof of Claim for damages from such rejection no later than thirty (30)

days after the Effective Date. The failure to timely file a proof of Claim shall be deemed a

waiver of any Claim in connection with the rejection of such contract or lease.

ARTICLE 7 - CONDITIONS PRECEDENT; CONFIRMATION AND EFFECTIVE

DATE

7.1 Conditions Precedent to Plan Confirmation.

The following conditions must be satisfied or waived by the Debtors, with the consent of

BP and the Committee, in accordance with Section 7.3 on or before the Confirmation Date:

(a) The Disclosure Statement Order shall have been entered by the

Bankruptcy Court and shall have become a Final Order; and

(b) The Confirmation Order to be entered by the Bankruptcy Court shall

contain provisions that, among other things: (i) authorize the implementation of the Plan in

accordance with its terms; (ii) approve in all respects the other settlements, transactions, and

agreements to be effectuated under the Plan; (iii) find that the Plan complies with all applicable

provisions of the Bankruptcy Code, including that the Plan was proposed in good faith and that

the Confirmation Order was not procured by fraud; (iv) order that the Assets of the Estates are

transferred to the Liquidation Trustee on the Effective Date, free and clear of all Claims, liens,

Encumbrances and interests of any Entity except for the liens and security interests of the

Secured Creditors; and (v) order that the Liquidation Trustee is authorized to take any and all

action necessary or appropriate to perform his duties hereunder.

7.2 Conditions Precedent to the Effective Date.

The Effective Date shall not occur and no obligations under the Plan shall come into

existence unless each of the following conditions is met or, alternatively, is waived in accordance

with Section 7.3:

(a) The conditions precedent to Plan Confirmation in Section 7.1 shall have

been satisfied or waived;

(b) The Confirmation Order shall have become a Final Order and such order

shall not have been amended, modified, vacated, stayed, or reversed;


31

(c) All requisite filings with governmental authorities and third parties, to the

extent required, shall have become effective;

(d) All documents contemplated by this Plan to be executed and delivered on

or before the Effective Date shall have been executed and delivered;

(e) The Liquidation Trustee shall have been designated by the Committee,

after consultation with BP, and shall be empowered to take all actions as contemplated by this

Plan and the Liquidation Trustee Agreement;

(f) The Confirmation Fund, Professional Fee Escrow Account, Initial

Liquidation Trust Funding, Liquidation Trust Expense Fund, and Disputed Confirmation Reserve

shall be fully funded as may be applicable; and

(g) The Confirmation Amount minus (i) the Initial Liquidation Trust Funding

and (ii) the GUC Budget Excess shall not exceed the aggregate budgeted amount of

disbursements for Allowed Administrative Expense Claims, Allowed Priority Tax Claims,

Allowed Non-Tax Priority Claims, Professional Fee Claims, and Allowed Other Secured Claims

as set forth in the Approved Budget.

7.3 Waiver of Conditions Precedent.

Each condition precedent in Sections 7.1 and 7.2, except the condition precedent in

Section 7.2(b), may be waived or modified by the Debtors, with the written consent of BP and

the Committee, without further Court approval, in whole or in part. The condition precedent in

Section 7.2(b) shall be waived or modified by the Debtors, upon written direction from BP and

the Committee, without further Court approval.

ARTICLE 8 - INJUNCTION; RELEASE; EXCULPATION

8.1 General Injunctions.

The following provisions shall apply and shall be fully set forth in the Confirmation

Order.

(a) Injunctions Against Interference with Consummation or

Implementation of Plan. All holders of Claims or Interests shall be enjoined from

commencing or continuing any judicial or administrative proceeding or employing any

process against any of the Debtors or the Estates with the intent or effect of interfering with

the consummation or implementation of the Plan or the transfers, payments or

Distributions to be made hereunder.

(b) Plan Injunction. Except as otherwise specifically provided for by this

Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the

enforcement, attachment, collection, or recovery by any manner or means of any judgment,


32

award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance

of any kind; (iii) the commencement or continuation of any action, employment of process

or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or

enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim,

exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to

the fullest extent authorized or provided by the Bankruptcy Code.

(c) No Bar to Claims Against Third Parties. Holders of Claims or

Interests against the Debtors are not barred or otherwise enjoined by the Plan from

pursuing any recovery against Persons that are not the Debtors, except as set forth in this

Article 8.

8.2 All Distributions Received in Full and Final Satisfaction.

Except as otherwise set forth herein, all payments and all Distributions to be made in

accordance with the Plan on account of Claims (including Administrative Expense Claims) shall

be received in full and final satisfaction, settlement, and release of the Estates’ obligations for

such Claims as against the Debtors and their property and the Estates.

8.3 No Modification of Res Judicata Effect.

The provisions of this Article 8 are not intended, and shall not be construed, to modify

the res judicata effect of any order entered in the Bankruptcy Cases, including, without

limitation, the Confirmation Order and any order finally determining Professional Fee Claims to

any Professional.

8.4 Exculpation for Debtors, Committee, and Estate Professionals.

To the extent permitted by Bankruptcy Code section 1125(e), the Debtors, their

equity holders, officers, directors, employees and Professionals (including the professional

firms and individuals within such firms), and the Creditors’ Committee and its members

(acting in such capacity), their respective officers, directors, employees and Professionals

(including professional firms and individuals within such firms) shall neither have nor

incur any liability to any Person for any act taken or omitted to be taken in connection with

or related to the formulation, preparation, dissemination, implementation, administration,

funding, confirmation, or consummation of the Plan, the Disclosure Statement, or any

contract, instrument, release or other agreement or document created or entered into in

connection with the Plan, or any act taken or omitted to be taken during the Bankruptcy

Cases, except for acts or omissions as a result of willful misconduct or gross negligence as

determined by a Final Order of a court of competent jurisdiction, and in all respects shall

be entitled to rely reasonably upon the advice of counsel with respect to their duties and

responsibilities under the Plan. From and after the Effective Date, a copy of the

Confirmation Order and the Plan shall constitute, and may be submitted as, a complete

defense to any Claim or liability released under the Plan.


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8.5 Exculpation for Liquidation Trustee.

The Liquidation Trustee and its employees, attorneys, accountants, financial

advisors, representatives, and agents, each solely in such capacity, shall not have or incur

any liability to any Person or Entity for any act or omission in connection with, or arising

out of, the Plan or the property to be distributed under the Plan; except for acts or

omissions as a result of willful misconduct or gross negligence as determined by a Final

Order of a court of competent jurisdiction.

8.6 Releases by the Debtors.

Effective as of the Effective Date, without in any manner limiting or altering any

releases granted to the Postpetition Secured Party and Senior Lien Secured Party under

the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective

affiliates, and each of their respective former, current, or future officers, employees,

directors, agents, representatives, owners, members, partners, financial advisors, legal

advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and

predecessors in interest, for good and valuable consideration provided by each of the

Released Parties, shall be deemed to provide a full release to each of the Released Parties

(and each such Released Party shall be deemed released by each Debtor and its Estate) and

their respective property from any and all Causes of Action and any other debts,

obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities

whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the

Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of

federal or state securities laws, or otherwise, based in whole or in part upon any act or

omission, transaction, or other occurrence or circumstance existing or taking place prior to

or on the Effective Date arising from or related in any way to the Debtors, the Plan,

Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the

Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien

Transaction Documents (as defined in the Final DIP Order) or any matters arising under

or in connection with the same, including those that the Debtors would have been legally

entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any

other Entity could have been legally entitled to assert derivatively or on behalf of the

Debtors or their Estates; provided, however, that the foregoing Debtor Release shall not

operate to waive or release any Claims or Causes of Action of the Debtors or their Estates

for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt,

any Claims in respect of Avoidance Actions against the Released Parties shall be released.

Nothing in the foregoing shall result in any current directors and officers of the Debtors

waiving any indemnification Claims against the Debtors or any of their insurance carriers

or any rights as beneficiaries of any insurance policies.


pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference



34

constitute the Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for

the good and valuable consideration provided by the Released Parties; (2) a good-faith

settlement and compromise of the Claims released by the Debtor Release; (3) in the best

interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable,

and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a

bar to any of the Debtors’ Estates or the Liquidation Trustee asserting any Claim or Cause

of Action released under the Debtor Release.

8.7 Releases by Releasing Parties.

Effective as of the Effective Date, the Releasing Parties shall be deemed to provide a

full release to the Released Parties and their respective property from any and all Causes of

Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims,

remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen,

existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract,

violations of federal or state securities laws, or otherwise, based in whole or in part upon

any act or omission, transaction, or other occurrence or circumstance existing or taking

place prior to or on the Effective Date arising from or related in any way to the Debtors,

the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases,

the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior

Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising

under or in connection with the same, including those that the Debtors would have been

legally entitled to assert or that any holder of a Claim against or Interest in the Debtors or

any other Entity could have been legally entitled to assert derivatively or on behalf of the

Debtors or their Estates.


pursuant to Bankruptcy Rule 9019, of the Third Party Release, which includes by reference


constitute the Bankruptcy Court’s finding that the Third Party Release is: (1) in exchange

for the good and valuable consideration provided by the Released Parties; (2) a good-faith

settlement and compromise of the Claims released by the Third Party Release; (3) in the

best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair,

equitable, and reasonable; (5) given and made after due notice and opportunity for

hearing; and (6) a bar to any of the Releasing Parties asserting any Claim released under

the Third Party Release.

Nothing in this Section 8.7 shall release any right or obligation of any party under

any other provision of this Plan or the Confirmation Order.


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ARTICLE 9 - PROVISIONS GOVERNING DISTRIBUTIONS

9.1 Payment in U.S. Dollars.

All Cash payments required under the Plan shall be made in U.S. dollars by checks drawn

on a domestic bank selected by the Liquidation Trustee in accordance with the Plan or by wire

transfer from a domestic bank, at the option of the Liquidation Trustee. The Liquidation Trustee

may use the services of a third party to aid in the Distributions required to be made under this

Plan.

9.2 Distributions Only on Business Days.

Notwithstanding the foregoing provisions, if any Distribution under this Plan is due on a

day other than a Business Day, such Distribution shall instead be made the next Business Day.

9.3 Unclaimed Distributions.

Unclaimed Distributions shall be canceled (by a stop payment order or otherwise), the

Claim(s) relating to such Distribution(s) shall be deemed forfeited and expunged without any

further action or order of the Bankruptcy Court, and the holder of such Claim(s) shall be

removed from the Distribution schedules and expunged from the Claims register and shall

receive no further Distributions under the Plan. Any such Unclaimed Distributions shall, as soon

as is practicable, be redistributed pursuant to the provisions of the Plan.

9.4 Timing of Distributions Generally.

The first Distribution shall occur as soon as practicable on or after the Effective Date. To

the extent subsequent Distributions are necessary, such subsequent Distributions shall occur as

soon after the first Distribution Date as the Liquidation Trustee shall reasonably determine is

appropriate in light of (i) the amount of Cash on hand; (ii) the amount and nature of Disputed

Claims; (iii) the activities to be accomplished, including their anticipated duration and costs; (iv)

the length of time since any prior Distribution; and (v) the costs of effecting any interim

Distribution.

9.5 Timing of Distributions on Disputed Claims Subsequently Allowed.

If a Disputed Claim is Allowed, in whole or in part, after the Effective Date, a

Distribution shall be made on account of such Allowed Claim on the next Distribution Date that

is at least fifteen (15) Business Days after such Claim is Allowed.

9.6 No Payment or Distribution on Disputed Claims.

Any contrary provision hereof notwithstanding, no payments or other Distributions shall

be made on account of any Disputed Claim, or any portion thereof, unless and until such Claim

is Allowed by Final Order. For the avoidance of doubt, no portion of any Disputed Claim is


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entitled to a Distribution. Holders of Disputed Claims shall be bound, obligated, and governed in

all respects by this Plan.

9.7 Disputed Distribution.

If a dispute arises as to the identity of a holder of an Allowed Claim who is to receive a

Distribution, the Liquidation Trustee may, in lieu of making such Distribution to such holder,

hold such amount until the dispute is resolved by Final Order or by written agreement among the

parties to such dispute.

9.8 Transmittal of Payments and Notices.

All Distributions shall be made to the holder of a Claim by regular first-class mail,

postage prepaid, in an envelope addressed to such holder at the address listed on its proof of

Claim filed with the Claims Agent or Bankruptcy Court or, if no proof of Claim was filed, (i) at

the address listed on the Debtors’ Schedules, or (ii) at such address that a holder of a Claim

provides to the Debtors and the Liquidation Trustee after the Effective Date in writing and files

at least fifteen (15) Business Days prior to a Distribution Date. Neither the Debtors nor the

Liquidation Trustee shall have any duty to ascertain the mailing address of any holder of a Claim

other than as set forth herein. The date of payment or delivery shall be deemed to be the date of

mailing. Payments made in accordance with the provisions of this Section 9.8 shall be deemed

made to the holder regardless of whether such holder actually receives the payment.

9.9 Record Date for Distributions.

Except as otherwise provided in a Final Order, transferees of Claims that are transferred

pursuant to Bankruptcy Rule 3001 with appropriate filings made on or before the Effective Date

(the “Record Date”) shall be treated as the holders of those Claims for all purposes,

notwithstanding that any period provided by Bankruptcy Rule 3001 for objecting to the

transfer(s) may not have expired prior to the Record Date. The Debtors and the Liquidation

Trustee shall have no obligation to recognize any transfer of any Claim occurring after the

Record Date. In making a Distribution with respect to any Claim, the Debtors and the

Liquidation Trustee shall be entitled to recognize and deal for all purposes hereunder only with

the Person who is listed on the proof of Claim filed with respect to such Claim, on the Debtors’

Schedules as the holder thereof, and upon such other evidence or record of transfer or assignment

filed as of the Record Date.

9.10 Claims Administration Responsibility.

(a) Reservation of Rights. Unless a Claim is specifically Allowed prior to or

after the Effective Date or under the Plan, the Liquidation Trustee reserves any and all objections

to any and all Claims and motions or requests for the payment of Claims, whether administrative

expense, secured or unsecured, including, without limitation, any and all objections to the

validity or amount of any and all alleged DIP Financing Claims, Administrative Expense Claims,


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Priority Tax Claims, or Non-Tax Priority Claims, liens and security interests, whether under the

Bankruptcy Code, other applicable law or contract. The failure to object to any Claim prior to

the Effective Date shall be without prejudice to the Liquidation Trustee’s rights to contest or

otherwise defend against such Claim in the Bankruptcy Court when and if such Claim is sought

to be enforced by the holder of the Claim.

(b) Objections to Claims. The Liquidation Trustee may dispute, object to,

compromise, or otherwise resolve all Claims. Unless otherwise provided in the Plan or ordered

by the Bankruptcy Court, all objections to Claims shall be filed and served no later than the

Claims Objection Bar Date, provided that the Liquidation Trustee may request (and the

Bankruptcy Court may grant) an extension of time by filing a motion with the Bankruptcy Court.

(c) Filing Objections. An objection to a Claim shall be deemed properly

served on the claimant if the Liquidation Trustee causes service of any such objection to be

effected in accordance with Bankruptcy Rule 3007 by mailing or otherwise delivering the

objection and a notice of hearing thereon to the claimant at the address set forth on such

claimant’s proof of Claim at least thirty (30) days prior to the hearing thereon.

(d) Determination of Claims. Except as otherwise agreed by the Debtors, any

Claim as to which a proof of Claim or motion or request for payment was timely filed in the

Bankruptcy Cases may be determined and liquidated after the Effective Date pursuant to (i) a

Final Order, or (ii) applicable non-bankruptcy law. Any Claim determined to be an Allowed

Claim after the Effective Date under this Section 9.10(d) shall be treated as an Allowed Claim in

accordance with this Plan.

9.11 Disputed Claims.

(a) For purposes of effectuating the provisions of the Plan and the

Distributions to holders of Allowed Claims, the Court, on or prior to the Effective Date, or

thereafter upon the request of any holder of a Claim or the Liquidation Trustee, may liquidate the

amount of Disputed Claims pursuant to Bankruptcy Code section 502(c), in which event the

amounts so fixed or liquidated shall be deemed to be the aggregate amounts of the Disputed

Claims under Bankruptcy Code section 502(c) for purposes of Distribution under this Plan and

for purposes of the Disputed Confirmation Reserve and Disputed GUC Fund.

(b) When a Disputed Claim becomes an Allowed Claim, there shall be

distributed to the holder of such Allowed Claim, in accordance with the provisions of the Plan

(but in no event later than the next succeeding Distribution Date), Cash in the amount of all

Distributions to which such holder would have been entitled if such holder’s Claim were

Allowed on the Effective Date, to the extent of available Cash to make such Distribution.

(c) In no event shall any holder of any Disputed Claim be entitled to receive

(under this Plan or otherwise) any Cash payment that is greater than the amount reserved, if any,

for such Disputed Claim under the Plan. In no event shall the Debtors or the Liquidation Trustee


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have any responsibility or liability for any loss to or of any amount reserved under this Plan

unless such loss is the result of that party’s fraud, willful misconduct, or gross negligence. In no

event may any Creditor whose Disputed Claim is subsequently Allowed pursue or recover from

any other Creditor any funds received as Distributions under the Plan.

(d) To the extent that a Disputed Claim ultimately becomes an Allowed Claim

and is entitled to a Distribution in an amount less than the amount reserved for such Disputed

Claim, then on the next succeeding Distribution Date, the Liquidation Trustee shall make, in

accordance with the terms of the Plan, a Distribution of the excess amount reserved for such

Disputed Claim in accordance with the Plan.

(e) The Disputed Confirmation Reserve and the Disputed GUC Fund shall be

treated as disputed ownership funds, within the meaning of Treasury Regulation section 1.468B-

9, for all purposes associated with taxation.

(f) Except as expressly set forth in the Plan, or otherwise agreed to in writing

or ordered by the Court, the Liquidation Trustee shall not have any duty to fund the Disputed

Confirmation Reserve or the Disputed GUC Fund.

(g) The Liquidation Trustee shall pay, or cause to be paid, out of the funds

held in the Disputed Confirmation Reserve and the Disputed GUC Fund, any tax imposed by any

federal, state, or local taxing authority on the income generated by the funds or property held in

the Disputed Confirmation Reserve and Disputed GUC Fund, respectively. The Liquidation

Trustee shall file, or cause to be filed, any tax or information return related to the Disputed

Confirmation Reserve and the Disputed GUC Fund that is required by any federal, state, or local

taxing authority.

9.12 No Payments of Fractional Cents or Distributions of Less Than

Thirty-Five Dollars.

(a) Any contrary provision hereof notwithstanding, for purposes of

administrative convenience, no payment of fractional cents shall be made pursuant to the Plan.

Whenever any payment of a fraction of a cent under the Plan would otherwise be required, the

actual Distribution made shall reflect a rounding of such fraction to the nearest whole penny (up

or down), with halfpennies or less being rounded down and fractions in excess of half of a penny

being rounded up.

(b) Any contrary provision hereof notwithstanding, for purposes of

administrative convenience, no Distribution of less than thirty-five dollars ($35) shall be made

pursuant to the Plan. Whenever any Distribution of less than thirty-five dollars ($35) under the

Plan would otherwise be required, such funds will be retained by the Liquidation Trustee for the

account of the recipient until such time that successive Distributions aggregate to thirty-five

dollars ($35), at which time such payment shall be made, and if successive Distributions do not


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ever reach thirty-five dollars ($35) in the aggregate, then such Distributions shall be returned to

the Liquidation Trust.

9.13 Setoff and Recoupment. Except as otherwise provided in the Plan, the

Liquidation Trustee may, but shall not be required to, set off against, or recoup from, any Claim

and the Distributions to be made pursuant to the Plan in respect thereof, any Claims, defenses or

Causes of Action of any nature whatsoever that the Debtors may have, but neither the failure to

do so nor the allowance of any Claim under the Plan shall constitute a waiver or release by the

Debtors or Liquidation Trustee of any right of setoff or recoupment against the holder of any

Claim.

9.14 Payment of Taxes on Distributions Received Pursuant to the Plan.

(a) As a precondition to payment of any Distribution to a Creditor under this

Plan, unless included on the official proof of Claim form filed by such Creditor in the

Bankruptcy Cases, each Creditor shall provide the Liquidation Trustee a valid tax identification

or social security number (collectively, the “Tax Information”) for purposes of tax reporting by

the Debtors. All Entities that receive Distributions under the Plan shall be responsible for

reporting and paying, as applicable, any taxes on account of their Distributions.

(b) At such time as the Debtors or Liquidation Trustee believe that

Distributions to a particular Class of Claims are likely, the Liquidation Trustee shall request Tax

Information in writing from the Creditors (the “Tax Information Request”). Any Creditor who

fails to respond to the Tax Information Request within ninety (90) days from the date posted on

the Tax Information Request shall forfeit all Distributions such Creditor may otherwise be

entitled to under this Plan, and such forfeited funds will revert to the Estates to be disbursed in

accordance with the terms and priorities established in this Plan.

9.15 Compliance With Tax Withholding and Reporting Requirements.

With respect to all Distributions made under the Plan, the Debtors and Liquidation

Trustee will comply with all withholding and reporting requirements of any federal, state, local,

or foreign taxing authority.

ARTICLE 10 - PLAN INTERPRETATION, CONFIRMATION AND VOTING

10.1 Procedures Regarding Objections to Designation of Classes as

Impaired or Unimpaired.

If the designation of the treatment of a Class as impaired or unimpaired is objected to, the

Bankruptcy Court shall determine the objection, and voting shall be permitted or disregarded in

accordance with the determination of the Bankruptcy Court.


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10.2 Withdrawal and Modification of Plan.

This Plan may be withdrawn or modified by the Debtors at any time prior to the

Confirmation Date. The Debtors may modify the Plan, with the consent of BP and the

Committee, in any manner consistent with Bankruptcy Code section 1127 prior to substantial

consummation thereof. Upon request by the Liquidation Trustee, and with the consent of BP, the

Plan may be modified after substantial consummation with the approval of the Bankruptcy

Court, provided that such modification does not affect the essential economic treatment of any

Person that objects in writing to such modification.

10.3 Governing Law.

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy

Code and the Bankruptcy Rules) or the Plan, the laws of the State of New York applicable to

contracts executed in such State by residents thereof and to be performed entirely within such

State shall govern the construction and implementation of the Plan and any agreements,

documents, and instruments executed in connection with this Plan.

10.4 Voting of Claims.

Each holder of a Claim as of the Record Date in Classes 1B, 2, 3, and 4 shall be entitled

to vote to accept or reject the Plan. The Disclosure Statement Order shall govern the manner and

procedures for casting Ballots with the Voting Agent.

10.5 Acceptance by Impaired Class.

Consistent with Bankruptcy Code section 1126(c), and except as provided for in

Bankruptcy Code section 1126(e), a Class of creditors shall have accepted the Plan if it is

accepted by at least two-thirds in dollar amount and more than one-half in number of the holders

of Allowed Claims of such Class that have timely and properly voted to accept or reject the Plan.

10.6 Presumed Acceptances of Plan.

Class 1A is unimpaired under the Plan and, therefore, is conclusively presumed to have

accepted the Plan.

10.7 Presumed Rejections of Plan.

Class 5 is presumed to have rejected the Plan but may elect to accept the Plan.

10.8 Cramdown.

The Debtors request confirmation of this Plan under Bankruptcy Code section 1129(b)

with respect to any impaired Class that does not accept this Plan pursuant to Bankruptcy Code

section 1126. The Debtors reserve the right to modify this Plan or the Plan Supplement, with the


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consent of BP and the Committee, in order to satisfy the requirements of Bankruptcy Code

section 1129(b), if necessary

ARTICLE 11 - RETENTION OF JURISDICTION BY BANKRUPTCY COURT

11.1 From the Confirmation Date until entry of a final decree closing the Bankruptcy

Cases (pursuant to 11 U.S.C. § 350 and Bankruptcy Rule 3022), the Bankruptcy Court shall

retain such jurisdiction as is legally permissible over the Bankruptcy Cases for the following

purposes:

(a) to hear and determine any and all objections to the allowance of any Claim

or Administrative Expense Claim, or any controversy as to the classification of Claims or any

matters that may directly, indirectly, or contingently affect the obligations of the Debtors or

Liquidation Trustee to any Creditors, holders of Claims, or other parties in interest;

(b) to hear and determine any and all applications for compensation and

reimbursement of expenses by Professionals;

(c) to hear and determine any and all pending motions for the assumption or

rejection of executory contracts and unexpired leases, and to fix any Claims resulting therefrom;

(d) to adjudicate through final judgment such contested matters and adversary

proceedings as may be pending or subsequently initiated in the Bankruptcy Court, including, but

not limited to, Causes of Action brought by the Liquidation Trustee;

(e) to enforce and interpret the provisions of the Plan, the Disclosure

Statement Order, the Confirmation Order, and any other order of the Bankruptcy Court in the

Bankruptcy Cases;

(f) to issue any injunction or other relief appropriate to implement the intent

of the Plan, and to enter such further orders enforcing any injunctions or other relief issued under

the Plan or pursuant to the Confirmation Order;

(g) to modify the Plan pursuant to Bankruptcy Code section 1127 and the

applicable Bankruptcy Rules;

(h) to correct any defect, cure any omission, or reconcile any inconsistency in

the Plan or in the Confirmation Order as may be necessary to carry out the purposes and the

intent of the Plan;

(i) to interpret and determine such other matters as the Confirmation Order

may provide for or as may be authorized under the Bankruptcy Code; and

(j) to enter and implement such orders as may be appropriate if the

Confirmation Order is, for any reason, stayed, reversed, revoked, modified or vacated.


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ARTICLE 12 - MISCELLANEOUS PROVISIONS

12.1 Headings.

Headings are utilized in this Plan for the convenience of reference only and shall not

constitute a part of the Plan for any other purpose.

12.2 No Attorneys’ Fees.

No attorneys’ fees with respect to any Claim or Interest shall be payable under the Plan,

except as expressly specified herein or Allowed by a Final Order.

12.3 Notices.

Except as otherwise specified in the Plan, all notices in connection with the Plan shall be

in writing and shall be deemed to have been given when received or, if mailed, five (5) days after

the date of mailing. All communications shall be deemed sent if sent to the Debtors at the

Liquidation Trustee’s notice address identified in the Plan Supplement.

12.4 No Discharge.

The Debtors shall not receive a discharge under the Plan under Bankruptcy Code section

1141(d)(3).

12.5 Claims In Dollars.

Any Claims asserted in foreign currencies shall be converted to United States Dollars in

accordance with the prevailing exchange rates published by the Wall Street Journal on the

Confirmation Date.

12.6 Binding Effect.

The rights, benefits, and obligations of any Person named or referred to in the Plan, or

whose actions may be required to effectuate the terms of the Plan, shall be binding on, and shall

inure to the benefit of, any heir, executor, administrator, successor, or assign of such Person

(including, but not limited to, any trustee appointed for the Debtors under chapter 7 or 11 of the

Bankruptcy Code). The Confirmation Order shall provide that the terms and provisions of the

Plan and the Confirmation Order shall survive and remain effective after entry of any order that

may be entered converting the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy

Code, and the terms and provisions of the Plan shall continue to be effective in this or any

superseding case under the Bankruptcy Code.


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Dated: May 9, 2020

New York, New York


Mark Linzenbold


Agera Energy LLC


Mark Linzenbold


Agera Holdings, LLC


Mark Linzenbold


energy.me midwest llc


Mark Linzenbold




Stephen Gray

Manager

Utility Recovery LLC


Stephen Gray

Manager

Agera Solutions LLC


Exhibit B

Liquidation Analysis


Liquidation Analysis Comparison as of June 27, 2020

Chapter 11 Liquidating

Trust Chapter 7 Conversion

Effective Date Cash 12,977,726 12,977,726

Distribution to BP (Senior Secured Lender) (a) (b) (4,853,204) (11,226,890)

Allowed and Reserved Professional Fee Claims (Secured Lender Carve-Out) (c) (888,903) (888,903)

Allowed and Reserved Administrative Expense Claims (d) (111,933) (111,933)

Allowed and Reserved Priority Tax Claims (2,500,000) -

Allowed and Reserved Other Priority Claims (d) (2,373,686) (750,000)

Initial Trust Funding 2,250,000 NA

Initial Funds Available under a Chapter 7 Conversion NA (0)

Estimate of Liquidation Trust Professional Fees and Expenses (750,000) NA

Estimate of Chapter 7 Trustee Fees and Expenses NA (1,000,000)

Estimate of Chapter 7 Commissions NA Unknown

Estimate of GUC Budget Excess 937,237 NA

Estimate of Guarantee Proceeds Unknown NA

Estimate of Briarcliff Proceeds (e) - -

Estimate of Causes of Action Unknown Unknown

Estimate of Proceeds Avaialble to General Unsecured Creditors (f) 2,437,237 (1,000,000)

- -

Notes:

(a)

(b) Distribution to BP under Chapter 7 Conversion is for presentation purposes, the senior lender collateral may be disputed by Chapter 7 Trustee under causes of action.

(c) Allowed and Reserved Professional Fee Claims as of Effective Date may fluctuate up or down related to timing of fee applications.

(d)

(e)

(f)

Distribution to BP may be greater subject actual performance related to projected operational reserves, priority reserves and collateral recovered during projection

period. Analysis does not reflect BP recoveries of outstanding collateral Post-Confirmation/Post-Conversion that would not have an impact on General Unsecured

Creditors.

The Committee agrees that unsecured creditors should fare better under the Plan than in a Chapter 7 liquidation because of the settlement of the Committee Causes

of Action that is embodied in the Plan. However, the Committee reserves all rights with respect to the Liquidation Analysis and notes that in a Chapter 7 liquidation,

if a Chapter 7 trustee pursues the Committee Causes of Action, the distribution to BP may be less and the distribution to unsecured creditors may be greater than the

amounts reflected in the Liquidation Analysis.

Under a Chapter 7 Conversion, a portion of Allowed and Reserved Administrative Expenses and Allowed and Reserved Other Priority Claims would be funded under

the Carve-Out.

Under either a Liquidating Trust or Chapter 7 conversion, assumes non-debtor Briarcliff Property Group LLC is sold with limited to zero net proceeds.


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