UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT …...forth in the Declaration of Angela Tsai on...

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : DEAN & DELUCA NEW YORK, INC., : Case No. 20-10916 (MEW) et al. : : Jointly Administered Debtors.1 : :

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

CONFIRMING DEBTORS’ PLAN OF REORGANIZATION

A HEARING HAVING BEEN HELD BEFORE THE COURT on November 24, 2020

(the “Confirmation Hearing”), to consider confirmation of the Debtors’ Fifth Modified Proposed

Joint Chapter 11 Plan of Reorganization of Dean & DeLuca New York, Inc. and Its Debtor

Affiliates, dated November 13, 2020 (including all exhibits thereto and as modified, and annexed

hereto as Exhibit C, the “Plan”),2 proposed by Dean & DeLuca New York, Inc. and its affiliates

in the above-captioned jointly administered cases (the “Debtors”);

WHEREAS, that the Disclosure Statement for the Third Modified Proposed Joint

Chapter 11 Plan of Reorganization of Dean & DeLuca New York, Inc. and Its Debtor Affiliates,

dated October 2, 2020 [Docket No. 355] (the “Disclosure Statement”) has been previously

approved on October 2, 2018, pursuant to the Order (A) Approving the Disclosure Statement, (B)

Approving the Solicitation Procedures, (C) Approving the Forms of Ballots and Notices in

1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor's taxpayer identification number are as follows:

Dean & Deluca New York, Inc. (3111); Dean & Deluca, Inc. (2998); Dean & Deluca Brands, Inc. (2878); Dean & Deluca International, LLC (8995); Dean & Deluca Small Format, LLC (1806); Dean & Deluca Atlanta, LLC (6678); Dean & Deluca Markets, LLC (2674). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, Delaware 19808.

2 Capitalized terms used herein without definition have the meanings provided for in the Plan. In addition, any term used in the Plan or this Confirmation Order that is not defined in the Plan or this Confirmation Order, but that is used in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules.

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Connection Therewith, (D) Establishing the Plan Confirmation Schedule and (E) Granting

Related Relief [Docket No. 358] (the “Disclosure Statement Order”), which also established

procedures for the solicitation and tabulation of votes to accept or reject the Plan, scheduled a

hearing on confirmation of the Plan and approved related notice procedures;

WHEREAS, the solicitation and noticing procedures with respect to the Plan

approved by the Court pursuant to the Disclosure Statement Order have been followed as set

forth in the Declaration of Angela Tsai on Behalf of Stretto Regarding Solicitation of Votes and

Tabulation of Ballots Accepting and Rejecting Third Modified Proposed Joint Chapter 11 Plan

of Reorganization of Dean & DeLuca New York, Inc. and Its Debtor Affiliates dated November

3, 2020 [Docket No. 404] (the “Voting Agent Declaration”) and an affidavit of service of the

solicitation materials with respect to the Plan having been executed by Stretto with respect to the

mailing of notice of the Confirmation Hearing and solicitation materials in respect of the Plan in

accordance with the Disclosure Statement Order having been filed with the Court [Docket No.

395];

WHEREAS, the Debtors filed with the Court, as appendices to the Disclosure Statement,

the Plan and Liquidation Analysis (as may be amended, modified, and supplemented, the “Plan

Documents”);

WHEREAS, the Debtors have filed with the Court various documents identified in the

Plan as the Plan Supplement [Docket Nos. 250, 360, 415, 423,435] (the “Plan Supplement”);

WHEREAS, the deadline for filing objections to the Plan was November 17, 2020;

WHEREAS, the deadline for casting ballots to accept or reject the Plan was October 29,

2020 and that the results of voting have been certified by Stretto, acting as voting agent for the


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balloting permitted for Class 1 and 4 Claims, pursuant to the Disclosure Statement Order and as

set forth in the Voting Agent Declaration;

WHEREAS, the Debtors have proposed certain modifications to the Plan as set forth in

the Debtors’ Fifth Modified Proposed Joint Chapter 11 Plan of Reorganization of Dean &

DeLuca New York, Inc. and Its Debtor Affiliates, dated November 20, 2020 [Docket No. 433]

and to the extent the terms of this Confirmation Order may be construed to constitute

modifications to the Plan (collectively, the “Modifications”), and that a conformed, final copy of

the Plan is attached hereto as Exhibit C;];

WHEREAS, the Debtors have filed the Declaration of Lawton Bloom in Support of

Confirmation of the Debtors’ Fifth Modified Proposed Joint Chapter 11 Plan of Reorganization

of Dean & DeLuca New York, Inc. and Its Debtor Affiliates, dated November 20, 2020 [Docket

No. 436] (the “Bloom Declaration”);

WHEREAS, the Debtors have filed the Memorandum of Law in Support of Confirmation

of the Debtors’ Fifth Modified Proposed Joint Chapter 11 Plan of Reorganization of Dean &

DeLuca New York, Inc. and Its Debtor Affiliates, dated November 20, 2020 [Docket No. 437]

(the “Confirmation Memorandum”);

WHEREAS, the Debtors have presented testimony, evidence and argument of counsel in

support of confirmation of the Plan, and that additional testimony, evidence or argument of

counsel has been presented by other parties in interest;

NOW, THEREFORE, based upon the Court’s review of (a) the Disclosure Statement, (b)

the Plan, (c) the Bloom Declaration, (d) the Voting Agent Declaration, (e) all of the evidence

proffered or adduced, filings and arguments of counsel during these Chapter 11 Cases and (f) all

of the evidence proffered or adduced at, filings in connection with, and arguments of counsel


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made at, the Confirmation Hearing; and after due deliberation thereon and good cause appearing

therefor, and for the reasons set forth on the record at the Confirmation Hearing:

IT IS HEREBY FOUND AND DETERMINED THAT:

A. Findings of Fact and Conclusions of Law. The findings of fact and the

conclusions of law stated in this Confirmation Order and on the record of the Confirmation

Hearing constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy

Rule 7052, made applicable to the proceeding by Bankruptcy Rule 9014. To the extent any

finding of fact shall be determined to be a conclusion of law, it shall be so deemed, and to the

extent any conclusion of law shall be determined to be a finding of fact, it shall be so deemed.

B. Jurisdiction; Venue; Core Proceeding. This Court has jurisdiction over the

Debtors’ Chapter 11 Cases pursuant to 28 U.S.C. §§ 157 and 1334. Venue in the Southern

District of New York was proper as of the Petition Date and continues to be proper pursuant to

28 U.S.C. §§ 1408 and 1409. Confirmation of the Plan is a core proceeding pursuant to 28

U.S.C. § 157(b)(2)(L) upon which the Court may issue a final order, and confirmation of a plan

by this Court is a constitutional exercise of the jurisdiction conferred by Congress on this Court.

This Court has exclusive jurisdiction to determine whether the Plan complies with the applicable

provisions of the Bankruptcy Code and should be confirmed.

C. Transmittal and Mailing of Solicitation Materials and Notices. The solicitation

materials and notices prescribed by the Disclosure Statement Order were served in compliance

with the Disclosure Statement Order, and such service was adequate and sufficient. Adequate

and sufficient notice of the Confirmation Hearing and the other deadlines and matters required to

be noticed pursuant to the Disclosure Statement Order was given in compliance with the


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Bankruptcy Rules and the Disclosure Statement Order, and no other or further notice is or shall

be required.

D. Adequacy of Voting Procedures. All procedures used to distribute the solicitation

materials to the appropriate creditors entitled to vote on the Plan and to tabulate the ballots

returned by creditors were fair and were conducted in accordance with the applicable provisions

of the Bankruptcy Code, the Bankruptcy Rules and the Disclosure Statement Order. Votes for

acceptance or rejection of the Plan were solicited and cast in good faith, and only after

transmittal of the approved Disclosure Statement, and otherwise in compliance with Bankruptcy

Code Sections 1125 and 1126 and Bankruptcy Rules 3017 and 3018.

E. Good Faith Solicitation – 11 U.S.C. § 1125(e). Based on the record before the

Court in the Chapter 11 Cases, the Debtors, and any of their respective directors, officers,

employees, members, participants, agents, representatives, partners, affiliates, counsel, other

advisors, successors or assigns, have acted in good faith within the meaning of Bankruptcy Code

Sections 1125(e) and 1129(a)(3), and in compliance with the applicable provisions of the

Bankruptcy Code, the Bankruptcy Rules and the Disclosure Statement Order in connection with

all of their respective activities relating to the solicitation of acceptances of the Plan and their

participation in the activities described in Bankruptcy Code Section 1125, and are entitled to the

protections afforded by Bankruptcy Code Section 1125(e).


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F. Impaired Class that has Voted to Accept or Reject the Plan. Classes 1 and 4 are

impaired. Objections to the solicitation, submission, or counting of votes, if any and to the

extent not resolved by consent, are expressly overruled and, as evidenced by the Voting Agent

Declaration, which certified both the method and results of the voting, Classes 1 and 4 have

voted to accept the Plan pursuant to the requirements of Bankruptcy Code Sections 1125 and

1126. Thus, at least one impaired Class of Claims has voted to accept the Plan.3

G. Classes Deemed to have Accepted or Rejected the Plan. Classes 2 and 3 are not

impaired under the Plan and are deemed to have accepted the Plan pursuant to Bankruptcy Code

Section 1126(f). Classes 5 and 7 comprise Affiliates of the Debtors and are conclusively deemed

to have accepted the Plan. Class 6 will receive no distribution under the Plan and is deemed to

have rejected the Plan pursuant to Bankruptcy Code Section 1126(g).

H. Consensual Releases. The releases set forth in Article IX.B of the Plan (the

“Consensual Releases”) are consensual and appropriate under applicable law based on the record

in these Chapter 11 Cases, including but not limited to the Bloom Declaration, the Voting Agent

Declaration, and the record established at the Confirmation Hearing.

I. Exculpations. The exculpation provisions set forth in Article IX.D of the Plan

(the “Exculpations”), as modified by this Order, are reasonable and are appropriately tailored to

protect the Exculpated Parties from inappropriate litigation.

J. Injunctions. The injunction provisions set forth in Article IX.E of the Plan (the

“Injunctions”) are reasonable and proper in order to implement the Plan and to preserve and

3 For the avoidance of doubt: for purposes of voting tabulation, in compliance with 11 U.S.C. § 1129, the votes of insiders

have not been counted; regardless, as provided at footnotes 2 and 3 to Exhibit A of the Voting Agent Declaration, each Voting Class accepted the Plan with or without the votes of insiders.


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enforce the Consensual Releases and the Exculpations, and are appropriately tailored to achieve

the foregoing purposes.

K. Jurisdiction and Authority. Each of the Consensual Releases, Exculpations, and

Injunctions referenced above (1) are within the jurisdiction of this Court under 28 U.S.C. §§

1334(a), 1334(b) and 1334(d); (2) are essential means of implementing the Plan pursuant to

Bankruptcy Code Section 1123(a)(5); (3) are integral elements of the transactions incorporated

into the Plan; (4) confer material benefits on, and are in the best interests of, the Debtors, their

Estates and their creditors; (5) are important to the overall objectives of the Plan to finally

resolve all claims among or against the key parties in interest in the Chapter 11 Cases with

respect to the Debtors.

L. Plan Compliance with Bankruptcy Code -- 11 U.S.C. § 1129(a)(1). The Plan

complies with the applicable provisions of the Bankruptcy Code, thereby satisfying Bankruptcy

Code Section 1129(a)(1).

(1) Proper Classification—11 U.S.C. §§ 1122, 1123(a)(1). Aside from

Administrative Claims, the DIP Facility Claim, Professional Compensation Claims and

Priority Tax Claims, which need not be classified, the Plan designates seven Classes of

Claims and Interests. The Claims and Interests placed in each Class are substantially

similar to other Claims and Interests, as the case may be, in each such Class. Valid

business, factual and legal reasons exist for separately classifying the various Classes of

Claims and Interests created under the Plan, and such Classes do not unfairly discriminate

among holders of Claims and Interests. Thus, the Plan satisfies Bankruptcy Code

Sections 1122 and 1123(a)(1).


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(2) Specified Unimpaired Classes—11 U.S.C. § 1123(a)(2). Article III of the

Plan specifies that Classes 2 and 3 are unimpaired under the Plan, thereby satisfying

Bankruptcy Code Sections 1123(a)(2).

(3) Specified Treatment of Impaired Classes—11 U.S.C. § 1123(a)(3). Article

III of the Plan designates Classes 1, 4, 5, 6, and 7 as impaired and specifies the treatment

of Claims and Interests in those Classes, thereby satisfying Bankruptcy Code Section

1123(a)(3).

(4) No Discrimination—11 U.S.C. § 1123(a)(4). The Plan provides for the

same treatment by the Debtors for each Claim or Interest in each respective Class unless

the holder of a particular Claim or Interest has agreed to a less favorable treatment of

such Claim or Interest, thereby satisfying Bankruptcy Code Sections 1123(a)(4).

(5) Implementation of Plan—11 U.S.C. § 1123(a)(5). Article IV of the Plan

provides adequate and proper means for its implementation, thereby satisfying

Bankruptcy Code Sections 1123(a)(5).

(6) Non-Voting Equity Securities—11 U.S.C. § 1123(a)(6). Article IV.K.4 of

the Plan expressly prohibits the issuance of non-voting equity securities, which is

additionally reflected in Article IV of the Reorganized Parent Charter. Additionally, and

excluding Intercompany Interests, the Reorganized Debtors will have only one class of

securities, with voting power distributed pro rata among holders of such securities, and

with no preference rights between holders. Therefore, the Plan satisfies the requirement

of Bankruptcy Code Section 1123(a)(6).

(7) Selection of Officers and Directors—11 U.S.C. § 1123(a)(7). Article

IV.C.8 provides that on the Effective Date, the members of the Debtor Boards of


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Directors shall be deemed to have become members of the Reorganized Debtor Boards,

and all persons who are then officers and employees of the Debtors shall be deemed to

have become officers and/or employees of the Reorganized Debtors; and furthermore that

the Reorganized Debtor Boards and the officers of the Reorganized Debtors shall have

such duties imposed on them by applicable state law and the Reorganized Debtor

Organizational Documents. Article IV.C.8 provides that the Debtors’ directors and

officers shall have the fiduciary duties imposed under applicable law. In sum, the manner

of selection of officers and directors will be consistent with governing law and the

Debtors’ practices prior to and during the Chapter 11 Cases, and likewise consistent with

the interests of holders of Claims and Interests and with public policy. Accordingly, the

requirements of Bankruptcy Code Section 1123(a)(7) are satisfied.

(8) Selection of Creditor Trustee—11 U.S.C. § 1123(a)(7). Article IV.D

provides that a Creditor Trustee shall be appointed to serve under the Creditor Trust

Agreement. The initial Creditor Trustee has been identified in the Creditor Trust

Agreement, and any successor to the initial Creditor Trustee selected under the terms of

the Creditor Trust Agreement will be appointed in a manner consistent with the interest

of holders of Allowed GUC Cash Election Claims and with public policy. Accordingly,

the requirements of Bankruptcy Code Section 1123(a)(7) are satisfied.

(9) Additional Plan Provisions—11 U.S.C. § 1123(b). The Plan’s additional

provisions are appropriate and not inconsistent with the applicable provisions of the

Bankruptcy Code. The failure to specifically address a provision of the Bankruptcy Code

in this Confirmation Order shall not diminish or impair the effectiveness of this

Confirmation Order.


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(a) Impairment of Claims and Interests and Assumption, Assumption

and Assignment or Rejection of Executory Contracts and Unexpired Leases—11

U.S.C. § 1123(b)(1)-(2). In accordance with Bankruptcy Code Section 1123(b)(l),

Article III of the Plan impairs or leaves unimpaired, as the case may be, each

Class of Claims and Interests. In accordance with Bankruptcy Code

Section 1123(b)(2), Article VII of the Plan provides for the rejection of all

executory contracts and unexpired leases of the Debtors that have not expired by

their own terms as of the Effective Date, except for those executory contracts and

unexpired leases that (a) have been assumed, assumed and assigned or rejected

pursuant to previous orders of the Bankruptcy Court, or (b) are the subject of a

pending motion to assume or a motion or permitted notice to assume and assign,

in each case filed as of the Effective Date. The Plan is therefore consistent with

Bankruptcy Code Section 1123(b)(1)-(2).

(b) Retention, Enforcement, and Settlement of Claims Held by the

Debtors—11 U.S.C. § 1123(b)(3). Pursuant to Bankruptcy Code

Section 1123(b)(3), the Plan provides for the retention of certain Retained Causes

of Action and Assigned Causes of Action, including Avoidance Actions.

(c) Modification of the Rights of Holders of Claims—11 U.S.C. §

1123(b)(5). Article III of the Plan modifies or leaves unaffected, as the case may

be, the rights of holders of each Class of Claims, and therefore, the Plan is

consistent with Bankruptcy Code Section 1123(b)(5).

(d) Other Provisions Not Inconsistent with Applicable Provisions of

the Bankruptcy Code; Deemed Consolidation—11 U.S.C.§ 1123(b)(6). The Plan


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includes additional appropriate provisions that are not inconsistent with applicable

provisions of the Bankruptcy Code, including: (a) the provisions of Article IV of

the Plan regarding the means for executing and implementing the Plan; (b) the

provisions of Article VII of the Plan governing the treatment of executory

contracts and unexpired leases; (c) the provisions of Article V of the Plan

governing distributions on account of Allowed Claims, particularly as to the

timing and calculation of amounts to be distributed; (d) the provisions of Article

IX of the Plan regarding the Releases, Exculpations, and Injunction; and (e) the

provisions of Article X of the Plan regarding retention of jurisdiction by the Court

over certain matters after the Effective Date. The Plan is therefore consistent with

Bankruptcy Code Section 1123(b)(6).

(10) Plan Compliance with Fed. R. Bankr. P. 3016. The Plan is dated and

identifies the entities submitting it, thereby satisfying Bankruptcy Rule 3016(a). The

filing of the Disclosure Statement with the Court satisfies Bankruptcy Rule 3016(b).

Further, the Plan and Disclosure Statement describe in specific and conspicuous language

all acts to be enjoined and identify the entities that are subject to the injunction, satisfying

Bankruptcy Rule 3016(c) to the extent applicable.

(11) Compliance with Fed. R. Bankr. P. 3017. The Debtors have given notice

of the Confirmation Hearing as required by Bankruptcy Rule 3017(d) and the Disclosure

Statement Order. The solicitation materials prescribed by the Disclosure Statement Order

were transmitted to the creditors entitled to vote on the Plan in accordance with

Bankruptcy Rule 3017(d).


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(12) Compliance with Fed. R. Bankr. P. 3018. The solicitation of votes to

accept or reject the Plan satisfies Bankruptcy Rule 3018. The Plan was transmitted to all

creditors entitled to vote on the Plan, sufficient time was prescribed for such creditors to

accept or reject the Plan, and the solicitation materials used and solicitation procedures

followed comply with Bankruptcy Code Sections 1125 and 1126, thereby satisfying the

requirements of Bankruptcy Rule 3018.

M. Debtors’ Compliance with Bankruptcy Code—11 U.S.C. § 1129(a)(2). The

Debtors have complied with the applicable provisions of the Bankruptcy Code, thereby

satisfying Bankruptcy Code Section 1129(a)(2). Specifically:

(1) The Debtors are proper debtors under Bankruptcy Code Section 109.

(2) The Debtors have complied with all applicable provisions of the

Bankruptcy Code, except as otherwise provided or permitted by order of the Court.

(3) The Debtors have complied with the applicable provisions of the

Bankruptcy Code, the Bankruptcy Rules and the Disclosure Statement Order, including,

but not limited to, the provisions of Bankruptcy Code Sections 1125 and 1126 in

transmitting the Plan, the Disclosure Statement, the ballots and related documents and

notices and in soliciting and tabulating votes to accept or reject the Plan.

N. Plan Proposed in Good Faith—11 U.S.C. § 1129(a)(3). The Debtors have

proposed the Plan in good faith and not by any means forbidden by law, thereby satisfying

Bankruptcy Code Section 1129(a)(3). The Debtors’ good faith is evident from the Bloom

Declaration and the record of these Chapter 11 Cases, including the record of the hearing to

approve the Disclosure Statement and the record of the Confirmation Hearing. Based upon the

evidence proffered at the Confirmation Hearing, the Court finds and concludes that the Plan has


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been proposed with the legitimate and honest purpose of reorganizing the Debtors’ financial

affairs. Moreover, the sufficiency of disclosure, the support of the Debtors’ primary

constituencies, and the acceptance of the Plan by holders of Claims who voted on it, all provide

independent evidence of the Debtors’ good faith in proposing the Plan in compliance with

Bankruptcy Code Section 1129(a)(3). Further, the Plan’s classification and treatment of Claims

and Interests, its compromise provisions, and its exculpation, release, and injunction provisions

have been negotiated in good faith and at arms’ length and are consistent with Bankruptcy Code

Sections 105, 1122, 1123(b)(3)(A), 1123(b)(6), 1129, and 1142.

O. Payments for Services or Costs and Expenses—11 U.S.C. § 1129(a)(4). Except

as otherwise provided in the Plan or certain prior orders of the Court, any payments made or to

be made by the Debtors for services or for costs and expenses incurred in connection with the

Chapter 11 Cases are subject to the Court’s approval.

P. Directors, Officers and Insiders—11 U.S.C. § 1129(a)(5). Article IV.C provides

that on the Effective Date, the members of the Debtor Boards of Directors shall be deemed to

have become members of the Reorganized Debtor Boards, and all persons who are then officers

and employees of the Debtors shall be deemed to have become officers and/or employees of the

Reorganized Debtors; and furthermore that the Reorganized Debtor Boards and the officers of

the Reorganized Debtors shall have such duties imposed on them by applicable law and the

Reorganized Debtor Organizational Documents. Article IV.C provides the Debtors’ directors

and officers shall have the fiduciary duties imposed under applicable law. In sum, the manner of

selection of officers and directors will be consistent with governing law and the Debtors’

practices prior to and during the Chapter 11 Cases, and likewise consistent with the interests of

holders of Claims and Interests and with public policy. The sole member of the Debtor Boards


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of Directors is Sorapoj Techakraisri. The Debtors’ officers are Sorapoj Techakraisri, Lawton

Bloom of Argus Management Corporation, and Joseph Baum of CFGI. The Reorganized

Debtors shall not compensate Mr. Techakraisri unless and until authorized to do so by the

Reorganized Debtor Boards, and shall compensate Mr. Bloom and Mr. Baum as provided in the

Order Granting Debtors’ Application Pursuant to 11 U.S.C. §§ 105(a) and 363(b) for Authority

to Employ and Retain Argus Management Corporation to Provide the Debtors with Chief

Restructuring Officers and Related Managerial Services and Assistance [Docket No. 76].

Additionally, the Plan provides that a Creditor Trustee shall be appointed to serve under the

Creditor Trust Agreement. The initial Creditor Trustee has been identified in the Creditor Trust

Agreement, and any successor to the initial Creditor Trustee selected under the terms of the

Creditor Trust Agreement will be appointed in a manner consistent with the interest of holders of

Allowed GUC Cash Election Claims and with public policy. The Plan therefore complies with

Bankruptcy Code Section 1129(a)(5).

Q. No Rate Changes—11 U.S.C. § 1129(a)(6). This Section is inapplicable because

there is no governmental regulatory commission that has jurisdiction over the rates that the

Debtors charge.

R. Best Interests of Creditors—11 U.S.C. § 1129(a)(7). The Plan satisfies

Bankruptcy Code Section 1129(a)(7). The Bloom Declaration, the liquidation analysis attached

to the Disclosure Statement and other evidence proffered or adduced at the Confirmation

Hearing: (1) are persuasive and credible, (2) have not been controverted by other evidence, and

(3) establish that each holder of an impaired Claim or Interest either has accepted the Plan or will

receive or retain under the Plan, on account of such Claim or Interest, property of a value, as of


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the Effective Date, that is not less than the amount that such holder would receive or retain if the

Debtors were liquidated under Chapter 7 of the Bankruptcy Code on such date.

S. Deemed Acceptance or Rejection by Certain Classes—11 U.S.C. § 1129(a)(8).

(1) Classes 2, 3, and 7 are unimpaired and are conclusively presumed to have

accepted the Plan under Bankruptcy Code Section 1126(f). As to these Classes,

Bankruptcy Code Section 1129(a)(8) has been satisfied.

(2) Classes 1, 4, 5, and 6 are impaired by the Plan. At least two-thirds in

amount and more than one-half in number of the Claims held by Creditors in Classes 1

and 4 have voted to accept the Plan, as established by the Voting Agent Declaration, in

accordance with Bankruptcy Code Section 1126(c). Classes 5 is deemed to accept the

Plan. As to these Classes, Bankruptcy Code Section 1129(a)(8) has been satisfied.

(3) No Class voted to reject the Plan. Class 6 is impaired and not entitled to

receive or retain any property under the Plan and, therefore, is deemed to have rejected

the Plan pursuant to Bankruptcy Code Section 1126(g). Although Bankruptcy Code

Section 1129(a)(8) has not been satisfied with respect to Class 6, the Plan is confirmable

because the Plan satisfies Bankruptcy Code Section 1129(b) with respect to Class 6, as

set forth below.

T. Treatment of Administrative, Priority and Tax Claims—11 U.S.C. §

1129(a)(9). Through the provisions of the Plan governing Administrative Claims,

Professional Compensation Claims and Priority Tax Claims, the Plan provides for the

payment in full, on the later of (a) the Effective Date, or as soon as reasonably practicable

thereafter, and (b) as soon as reasonably practicable after the date such Claim becomes an


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Allowed Claim, of all Claims entitled to priority under Bankruptcy Code Section 507(a).

Accordingly, Bankruptcy Code Section 1129(a)(9) is satisfied.

U. Acceptance by Impaired Class—11 U.S.C. § 1129(a)(10). Classes 1 and 4

have voted to accept the Plan within the meaning of Bankruptcy Code Section 1126,

without the need to include any acceptance of any insider. Therefore, Bankruptcy Code

Section 1129(a)(10) is satisfied.

V. Releasing Parties. The Voting Agent Declaration identifies (a) all parties

that duly marked their ballots to opt into the releases provided in Article IX.B.1 of the

Plan and timely submitted such ballots, (b) ballots submitted but excluded due to defects,

and (c) all parties whose solicitation packages were returned as undeliverable.

W. Feasibility—11 U.S.C. § 1129(a)(11). The Plan satisfies Bankruptcy

Code Section 1129(a)(11). The Bloom Declaration, the feasibility analysis attached to

the Disclosure Statement and other evidence proffered or adduced at the Confirmation

Hearing: (1) are persuasive and credible, (2) have not been controverted by other

evidence, and (3) establish that confirmation of the plan is not likely to be followed by

the liquidation, or the need for further financial reorganization, of the Reorganized

Debtors.

X. Payment of Fees—11 U.S.C. § 1129(a)(12). The payment of fees payable

pursuant to 28 U.S.C. § 1930, together with interest, if any, pursuant to 28 U.S.C. § 3717,

will be the responsibility of the: (a) the Debtors prior to the Effective Date and (b) the

Reorganized Debtors and/or the Creditor Trust, as specified in the Plan, through such

time as a particular Chapter 11 Case is closed, dismissed, or converted. Thus,

Bankruptcy Code Section 1129(a)(12) is satisfied.


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Y. Continuation of Retiree Benefits—11 U.S.C. § 1129(a)(13). The Debtors

are not obligated to pay any retiree benefits. See Docket No. 212. As such, Bankruptcy

Code Section 1129(a)(13) is inapplicable.

Z. Domestic Support Obligations, Individuals and Certain Transfers—11

U.S.C. § 1129(a)(14)-(16). The Debtors are not required to pay any domestic support

obligations and, therefore, Bankruptcy Code Section 1129(a)(14) is satisfied. The

Debtors are not individuals and, accordingly, Bankruptcy Code Section 1129(a)(15) is

inapplicable in these Chapter 11 Cases. The Debtors are moneyed, business or

commercial corporations or trusts, as the case may be and, accordingly, Bankruptcy Code

Section 1129(a)(16) is inapplicable in these Chapter 11 Cases.

AA. Fair and Equitable; No Unfair Discrimination—11 U.S.C. § 1129(b).

Pursuant to Bankruptcy Code Section 1129(b), as to any impaired class of unsecured

claims or equity interests that rejects a plan, such plan must be “fair and equitable” with

respect to each such class. No Classes have voted to reject the Plan. Class 6 will not

receive any property under the Plan. No Class junior to Class 6 is receiving any material

recovery and, thus, the “fair and equitable” test has been satisfied. Furthermore, the Plan

does not discriminate unfairly against any Class that any Class that is deemed to reject

the Plan.

BB. Only One Plan—11 U.S.C. § 1129(c). Other than the Plan (including

previous versions thereof), no other plan has been filed in the Chapter 11 Cases.

Accordingly, the requirements of Bankruptcy Code Section 1129(c) have been satisfied.

CC. Principal Purpose—11 U.S.C. § 1129(d). The principal purpose of the

Plan is neither the avoidance of taxes nor the avoidance of the requirements of Section 5


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of the Securities Act of 1933, and no governmental unit has objected to the confirmation

of the Plan on any such grounds. The Plan therefore satisfies the requirements of

Bankruptcy Code Section 1129(d).

DD. Retention of Jurisdiction. The Retained Causes of Action and Assigned

Causes of Action, including but not limited to any Cause of Action relating to DDJ, are

integral components of the funding of the Reorganized Debtors as well as the Creditor

Trust, and the implementation of the Plan generally. The Court retains jurisdiction

regarding such Causes of Action, as is necessary and appropriate to facilitate

implementation of the Plan.

EE. Occurrence of Reorganization Transactions. The reorganization

transactions provided at Article IV.F of the Plan are permissible and may occur or

deemed to have occurred upon the Effective Date.

FF. Closing of Cases. Cause exists to close certain of the Debtors’ cases listed

on Schedule 1 to Exhibit B hereto (the “Fully Administered Cases”), not including Lead

Case No. 20-10916 (MEW), upon the occurrence of the Effective Date, which closure

shall in no way act as a limitation upon this Court’s exercise of jurisdiction to facilitate

implementation of the Plan. Cause additionally exists for the Debtors to be permitted to

change the name of Lead Debtor Dean & DeLuca New York, Inc. to “Old DDUS, Inc.”

and to amend the Lead Case caption consistent with such change.

GG. No Objection to Deemed Rejection of Contracts and Leases. No party to

an executory contract or unexpired lease to be rejected by the Debtors pursuant to the

Plan has objected to such rejection.


19

HH. Plan Modifications. The Modifications do not materially or adversely

affect or change the treatment of any holder of a Claim or Interest. Accordingly,

pursuant to Bankruptcy Rule 3019, such Modifications do not require additional

disclosure under Bankruptcy Code Section 1125 or resolicitation of acceptances or

rejections under Bankruptcy Code Section 1126, nor do they require that holders of

Claims be afforded an opportunity to change previously cast acceptances or rejections of

the Plan. Disclosure of the Modifications on the record at the Confirmation Hearing

constitutes due and sufficient notice thereof under the circumstances of these Chapter 11

Cases.

II. Burden of Proof. The Debtors, as proponents of the Plan, have met their

burden of proving the elements of Bankruptcy Code Sections 1129(a) and 1129(b) by a

preponderance of the evidence.

JJ. Satisfaction of Confirmation Requirements. Based upon the foregoing,

the Plan satisfies the requirements for confirmation set forth in Bankruptcy Code Section

1129.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:

1. Approval of Modifications. The Modifications are approved. In accordance with

Bankruptcy Code Section 1127 and Bankruptcy Rule 3019, all holders of Claims who voted to

accept the Plan or who are conclusively presumed to have accepted the Plan are deemed to have

accepted the Plan as modified by the Modifications. No Holder of a Claim shall be permitted to

change its vote as a consequence of the Modifications. The Plan as modified by the

Modifications shall constitute the Plan and all references herein to the Plan shall mean the Plan

as so modified.


20

2. Confirmation of Plan. All requirements for confirmation of the Plan have been

satisfied. The Plan and all exhibits thereto, including, without limitation, the Creditor Trust

Agreement and the documents contained in the Plan Supplement, are approved in their entirety

and confirmed under Bankruptcy Code Section 1129.

3. Resolution of Certain Formal and Informal Objections to Confirmation. Formal

and informal objections to Confirmation are hereby (a) resolved on the terms and subject to the

conditions set forth below or (b) overruled in their entirety. The compromises and settlements

contemplated by the resolution of such objections are fair, equitable and reasonable, are in the

best interests of the Debtors, their respective Estates and Creditors and are expressly approved

pursuant to Bankruptcy Rule 9019.

4. Incorporation of Terms and Provisions of Plan. The terms and provisions of the

Plan are incorporated by reference into and are an integral part of this Confirmation Order. Each

term and provision of the Plan is valid, binding, and enforceable as though fully set forth herein.

The provisions of the Plan and this Confirmation Order, including the findings of fact and

conclusions of law set forth herein, are non-severable and mutually dependent. The failure

specifically to include or reference any particular term or provision of the Plan in this

Confirmation Order shall not diminish or impair the effectiveness of such term and provision, it

being the intent of the Court that the Plan be confirmed in its entirety.

5. Binding Effect. Effective on the Effective Date or any other date if so provided in

the Plan, and except as expressly provided otherwise in this Confirmation Order, the Plan and

Creditor Trust Agreement, and their respective provisions shall be binding to the fullest extent of

the law upon the Debtors, Reorganized Debtors, Creditor Trust, any party in interest, any entity

acquiring or receiving property or a distribution under the Plan and any holder of a Claim against


21

or Interest in the Debtors, including all governmental entities, whether or not the Claim or

Interest of such holder is impaired under the Plan and whether or not such holder or entity has

accepted the Plan. The Plan Documents and Plan Supplement constitute the legal, valid, binding,

enforceable, and authorized obligations of the respective parties thereto and shall be enforceable

in accordance with their terms. Pursuant to Bankruptcy Code Sections 1123(a) and 1142(a) and

the provisions of this Confirmation Order, the Plan, the Plan Documents, Plan Supplement and

all other Plan-related documents shall apply and be enforceable notwithstanding any otherwise

applicable non-bankruptcy law.

6. Plan Implementation Authorization. The Debtors and the Reorganized Debtors,

or the Creditor Trust as applicable, and their respective directors, officers, members, agents,

employees, authorized representatives, and attorneys, are authorized and empowered from and

after the date hereof to negotiate, execute, issue, deliver, implement, file, or record any contract,

instrument, release, or other agreement or document, including, without limitation, the Plan

Documents, as the same may be modified, amended and supplemented, and to take any action

necessary or appropriate to implement, effectuate, consummate, or further evidence the Plan in

accordance with its terms, or take any or all corporate actions authorized to be taken pursuant to

the Plan, whether or not specifically referred to in the Plan or any exhibit thereto, without further

order of the Court. To the extent applicable, any or all such documents shall be accepted upon

presentment by each of the respective state filing offices and recorded in accordance with

applicable state law and shall become effective in accordance with their terms and the provisions

of state law.

7. Vesting of Assets. As of the Effective Date, pursuant to Bankruptcy Code section

1141(b) and (c), the Creditor Trust Assets shall vest in the Creditor Trust free and clear of all


22

Claims liens, encumbrances, charges, membership interests, and other interests, except as

otherwise provided in the Plan or this Confirmation Order, and subject to the terms and

conditions of the Plan and this Confirmation Order. The Debtors, Committee and Creditor

Trustee shall have the power and authority to enter into the Creditor Trust Agreement on the

Effective Date.

8. Creditor Trust. On the Effective Date, the Creditor Trust will be established

pursuant to and in accordance with the terms of the Plan and the Creditor Trust Agreement.

Robert J. Frezza, in his capacity as Senior Managing Director of Ankura Consulting Group,

LLC, is appointed as the Creditor Trustee. The Creditor Trustee shall have such powers, duties,

and responsibilities as is provided for in the Plan and the Creditor Trust Agreement and shall be

compensated in accordance with the Plan and the Creditor Trust Agreement.

9. Approval of Plan Exculpation, Debtor Releases, Injunction. The Exculpations,

Consensual Releases, and Injunctions provided in Article IX of the Plan are approved, subject to

the modification to the exculpation provision set forth herein. As set forth more fully in the Plan,

as of the Effective Date and subject to the occurrence of the Effective Date:

(a) Notwithstanding anything contained herein to the contrary, on the

Effective Date and as of the Effective Date, (i) the Releasing Parties shall be deemed to

forever release, waive, and discharge each of the Released Parties from the released

claims; (ii) the Debtors shall be deemed to forever release, waive, and discharge each

Releasing Party from the released claims to the extent permitted under Article III.B.4 of

the Plan; and (iii) the Debtors, their estates, the Reorganized Debtors, and the Releasing

Parties shall be deemed to forever release, waive, and discharge each of the Plan Sponsor

Parties from the Plan Sponsor Released Claims, provided that (a) to the extent that the


23

Finch Payment has not been made on the Effective Date, the Finch Parties shall not be

Released Parties and shall not receive a release pursuant to this paragraph, and (b)

Sorapoj Techakraisri shall not be a Released Party and shall not receive a release

pursuant to this paragraph unless and until the Techakraisri Payment is made and

satisfied in full;

(b) Entry of this Order shall constitute the Bankruptcy Court’s approval of

the releases set forth in Article IX.B.1 of the Plan and its finding that they are: (a) in the

best interests of the Debtors and all holders of Claims; (b) fair, equitable and reasonable;

(c) fully consensual; and (d) approved after due notice and opportunity for hearing;

(c) The releases articulated in paragraphs (a)-(b) above shall extend to

Released Claims that the parties do not know or expect to exist at the time of the release,

which, if known, might have affected the decision to enter into the release and which the

Debtors and Releasing Parties shall be deemed to waive, and shall waive and relinquish

to the fullest extent permitted by law, any and all provisions, rights, and benefits

conferred by any law of the United States or any state or territory thereof, or principle of

common law, which governs or limits a person’s release of unknown claims;

(d) The Debtors also acknowledge that they may discover facts in addition to

or different from those that they now know or believe to be true with respect to the

subject matter of this release, but that it is the intention of the parties to fully, finally, and

forever settle and release with prejudice any and all Released Claims, including any and

all unknown claims, without regard to the subsequent discovery or existence of additional

or different facts. The Debtors expressly agree that any fraudulent inducement or similar


24

claims that could be premised on unknown facts or facts that are subsequently discovered

are included within the definition of unknown claims;

(e) Notwithstanding anything contained in the Plan to the contrary, effective

as of the Effective Date, the Exculpated Parties shall not have or incur any liability for

any act or omission taken or not taken between the Petition Date and the Effective Date

in connection with, relating to, or arising out of the Chapter 11 Cases, the negotiation and

filing of the Disclosure Statement, the Plan or any document implementing the Plan, the

Creditor Trust Agreement, the Exit Facility, the Reorganized Parent Organizational

Documents, including without limitation the Stockholders Agreement, the filing of the

Chapter 11 Cases, the settlement of claims or renegotiation of executory contracts and

leases, the pursuit of confirmation of the Plan, the consummation of the Plan, or the

administration of the Plan or the property to be distributed under the Plan, except for acts

or omissions that are the result of willful misconduct, gross negligence, fraud or criminal

acts or any obligations that they have under or in connection with the Plan or the

transactions contemplated in the Plan, and in all respects shall be entitled to reasonably

rely upon the advice of counsel with respect to their duties and responsibilities under the

Plan; provided, however, that nothing in the Plan or in this Confirmation Order shall

relieve the Debtors or the Exculpated Parties from their obligations under post-petition

transactions, agreements or instruments that have not been expressly cancelled by the

Plan;

(f) Pursuant to Section 1141(d)(3) of the Bankruptcy Code, confirmation of

the Plan will not discharge the Debtors; provided, however, upon confirmation of the

Plan, the occurrence of the Effective Date, and Distributions hereunder, the holders of


25

Claims or Equity Interests may not seek payment or recourse against or otherwise be

entitled to any Distribution from the Reorganized Debtors or Creditor Trust except as

expressly provided in the Plan.

(g) Except as otherwise expressly provided for in the Plan or in obligations

issued pursuant to the Plan, all Entities are permanently enjoined, on and after the

Effective Date, on account of any Claim or Equity Interest, from:

(1) commencing or continuing in any manner any action or other

proceeding of any kind against any of the Debtors’ Estates, the Reorganized

Debtors, the Creditor Trust, their successors and assigns, and any of their assets

and properties, except with respect to proceedings seeking the allowance of

claims filed or deemed filed in these bankruptcy cases;

(2) enforcing, attaching, collecting or recovering by any manner or

means any judgment, award, decree or order against any Debtor’s Estate, the

Reorganized Debtors, the Creditor Trust, their successors and assigns, and any of

their assets and properties;

(3) creating, perfecting or enforcing any encumbrance of any kind

against any Debtor’s Estate, the Reorganized Debtors, the Creditor Trust, their

successors and assigns, and any of their assets and properties;

(4) asserting any right of setoff or subrogation of any kind against any

obligation due from any Debtor’s Estate, the Reorganized Debtors, the Creditor

Trust, or their successors and assigns, or against any of their assets and properties,

except to the extent a right to setoff or subrogation is asserted with respect to a

timely filed proof of Claim; or


26

(5) commencing or continuing in any manner any action or other

proceeding of any kind against the Debtors, the Reorganized Debtors or the

Creditor Trust in respect of any Claim or Equity Interest or Cause of Action

released or settled hereunder.

(h) From and after the Effective Date, all Entities are permanently enjoined

from commencing or continuing in any manner against the Debtors, their Estates, their

successors and assigns, and any of their assets and properties, any suit, action or other

proceeding, on account of or respecting any claim, Claim, demand, liability, obligation,

debt, right, cause of action, interest or remedy released or to be released pursuant to the

Plan or the Confirmation Order; and

(i) From and after the Effective Date, all persons and Entities are

permanently enjoined from commencing or continuing in any suit, action, or other

proceeding on account of or respecting any claim, Claim, demand, liability, obligation,

debt, right, cause of action, interest, or remedy released or to be released pursuant to the

Plan or the Confirmation Order.

10. Opt-Ins. The Consensual Releases apply only to the Releasing Parties as defined

in the Plan, subject to the findings in paragraph H of this Order. For the avoidance of doubt, the

Releases shall not apply to those parties listed on Exhibits B and C of the Voting Agent

Declaration.

11. Vesting and Jurisdiction Over Retained Causes of Action. Except as otherwise

provided in the Plan or Confirmation Order, in accordance with Section 1123(b)(3) of the

Bankruptcy Code, any Retained Causes of Action that the Debtors may hold against any Entity

shall vest upon the Effective Date in the Reorganized Debtors and the Reorganized Debtors shall


27

have the exclusive right to institute and prosecute any Retained Causes of Action, without further

order of the Bankruptcy Court, in any court or other tribunal, including, without limitation, in an

adversary proceeding filed in one or more of the Chapter 11 Cases. Retained Causes of Action

thereafter shall remain the sole property of the Reorganized Debtors, and any proceeds therefrom

shall be the property of the Reorganized Debtors except as otherwise provided in the Plan with

respect to Additional Potential Recoveries to satisfy the Techakraisri Payment, and subject to

such exceptions, may be used and disbursed by the Reorganized Debtors without restriction.

12. Assigned Causes of Action. Except as otherwise provided in the Plan or

Confirmation Order, in accordance with Section 1123(b)(3) of the Bankruptcy Code, any

Assigned Causes of Action that the Debtors may hold against any Entity shall vest upon the

Effective Date in the Creditor Trust and the Creditor Trust shall have the exclusive right to

institute and prosecute any Assigned Causes of Action, without further order of the Bankruptcy

Court. The Creditor Trust shall be granted standing, authority, power and right to assert,

prosecute and/or settle the Assigned Causes of Action.

13. Exemption from Certain Taxes. Pursuant to Bankruptcy Code Section 1146(a),

the issuance, transfer or exchange of any security or the making or delivery of any instrument of

transfer under the Plan may not be taxed under any law imposing a stamp tax, use tax, sales tax

or similar tax. Any sale of any Asset of the Debtors occurring after or upon the Effective Date

shall be deemed to be in furtherance of the Plan.

14. Applicable Non-Bankruptcy Law. Pursuant to Bankruptcy Code Sections 1123(a)

and 1142(a), the provisions of this Confirmation Order, the Plan, the Creditor Trust Agreement,

or any other amendments or modifications thereto shall apply and be enforceable

notwithstanding any otherwise applicable non-bankruptcy law.


28

15. Approval of Deemed Rejection of Remaining Contracts and Leases. Unless

otherwise provided in an order of or in proceedings before the Court specifically dealing with an

executory contract or unexpired lease that is subject to rejection pursuant to Article VII.A of the

Plan, the rejection of such contract or lease is hereby approved as of the Effective Date as

proposed in the Plan. If the rejection pursuant to Article VII.A results in a Claim for damages,

then such Claim shall be forever barred and shall not be enforceable against the Estates, their

successors or properties, including the Creditor Trust, unless a Proof of Claim is filed with

Stretto and served on the Debtors or Reorganized Debtors, as applicable, within twenty-one (21)

days after the date of notice of the entry of this Confirmation Order.

16. Governing Law. Except to the extent that the Bankruptcy Code or Bankruptcy

Rules or other federal laws are applicable, and subject to the provisions of any contract,

instrument, release, or other agreement or document entered into in connection with the Plan, the

construction, implementation, and enforcement of the Plan and all rights and obligations arising

under the Plan shall be governed by, and construed and enforced in accordance with, the laws of

the State of New York, without giving effect to conflicts of law principles which would apply the

law of a jurisdiction other than the State of New York.

17. Claims Bar Dates and Other Claims Matters.

(a) Bar Date for Administrative Claims Other Than Professional

Compensation Claims and Priority Tax Claims. Other than with respect to (a)

Administrative Claims for which the Bankruptcy Court previously has established a Bar

Date, (b) Professional Compensation Claims addressed in subsection (b) below, and (c)

Priority Tax Claims addressed in subsection (c) below, any and all requests for payments

or proofs of Administrative Claims must be filed with the Bankruptcy Court on or before


29

the applicable Administrative Bar Date. Objections to any such Administrative Claims

must be filed and served on the claimant on or before the Claims Objection Deadline,

unless such date is extended by the Bankruptcy Court.

Any Administrative Claim that is not asserted in accordance with Article IV.F of

the Plan shall be deemed disallowed under the Plan and shall be forever barred against

any of the Estates, the Creditor Trust, or any of their Assets or property, and the holder

thereof shall be enjoined from commencing or continuing any action, employment of

process, or act to collect, offset, recoup, or recover such Claim.

(b) Bar Date for Professional Compensation Claims. All final fee

applications for payment of Professional Compensation Claims must be filed with the

Bankruptcy Court on or before the date that is the first Business Day after the date that is

forty-five (45) days after the Effective Date. Objections to such final fee applications

must be filed with the Bankruptcy Court and served on the requesting Professional or

other entity seeking payment, no later than twenty-one (21) days (or the next Business

Day if such day is not a Business Day) after the date on which such final fee application

was filed.

Any Professional Compensation Claim that is not asserted in accordance with

Article II.B of the Plan shall be deemed disallowed under the Plan and shall be forever

barred against any of the Estates, the Creditor Trust, or any of their Assets or property,

and the holder thereof shall be enjoined from commenting or continuing any action,

employment of process, or act to collect, offset, recoup, or recover such Claim.

The Order Pursuant to 11 U.S.C. §§ 105(a) and 331 Establishing Procedures for

Interim Compensation and Reimbursement of Expenses of Professional Fee Parties


30

[Docket No. 80] (the “Interim Compensation Order”) shall remain in effect. To the

extent of any inconsistency between this Order and the Interim Compensation Order, this

Order shall control. To the extent of any inconsistency between the Interim

Compensation Order and the Plan, the Plan shall control.

(c) Bar Date for Priority Tax Claims. To be eligible to receive distributions

under the Plan on account of a Priority Tax Claim, holders of such Priority Tax Claims

must file a Proof of Claim that is received by Stretto on or prior to the Governmental Unit

Bar Date. Objections to any such Priority Tax Claims must be filed and served on the

claimant on or before the Claims Objection Deadline, unless such date is extended by the

Bankruptcy Court.

Any Priority Tax Claim that is not asserted in accordance with Article II.C of the

Plan shall be deemed disallowed under the Plan and shall be forever barred against any of

the Estates, the Creditor Trust, or any of their Assets or property and the Holder thereof

shall be enjoined from commencing or continuing any action, employment of process, or

act to collect, offset, recoup, or recover such Claim.

(d) Bar Date for Rejection Damages Claims. If the rejection of any executory

contract or unexpired lease under Article VII.A of the Plan gives rise to a Claim by the

non-Debtor party or parties to such contract or lease, such Claim shall be forever barred

and shall not be enforceable against the Estates, their successors, or properties unless a

Proof of Claim is filed with Stretto and served on the Debtors or Reorganized Debtors, as

applicable, within thirty (30) days after the date of notice of the entry of the order of the

Bankruptcy Court rejecting the executory contract or unexpired lease, which may

include, if applicable, this Confirmation Order.


31

18. Effect of Conflict Between Plan and Confirmation Order. If there is any direct

conflict between the terms of the Plan or the Plan Documents and the terms of this Confirmation

Order, the terms of this Confirmation Order shall control.

19. Retention of Jurisdiction. Pursuant to Bankruptcy Code Sections 105(a) and

1142, and notwithstanding entry of this Confirmation Order and occurrence of the Effective

Date, this Court shall retain exclusive jurisdiction over all matters arising out of, and related to,

the Debtors’ Chapter 11 Cases and the Plan, including the interpretation and enforcement of this

Confirmation Order, to the fullest extent permitted by law, except as otherwise set forth in

Article X of the Plan. For the avoidance of doubt, and consistent with paragraph DD above, the

Retained Causes of Action and Assigned Causes of Action, including in either case but not

limited to any litigation relating to DDJ, are integral components of the funding of the

Reorganized Debtors as well as the Creditor Trust, and the Court shall retain jurisdiction over

such Causes of Action to facilitate implementation of the Plan.

20. Occurrence of Reorganization Transactions. On the Effective Date, subject in all

respects to Article VIII of the Plan, each of the reorganization transactions provided at Article

IV.F shall be deemed to have occurred to the extent such occurrence does not require any further

action on the part of any party; such transactions including but not limited to the contribution of

Pace Obligations pursuant to Article IV.F.1, and the deemed allowance of claims, issuance of

New Common Shares, granting of releases, and execution of documents as specified at Article

IV.F.2. For the avoidance of doubt, this paragraph shall not be construed to waive any

requirements with respect to the Techakraisri Payment or Finch Payment.

21. Continuation of the Automatic Stay. Unless otherwise provided in a separate

order from the Court, until the Effective Date, all injunctions or stays provided for in the Chapter


32

11 Cases under Bankruptcy Code Sections 105(a) or 362, or otherwise, and in existence on the

Confirmation Date, shall remain in full force and effect. After the Effective Date, all injunctions

or stays provided for in the Chapter 11 Cases under Bankruptcy Code Sections 105(a), or

otherwise, and in existence on the Confirmation Date, shall remain in full force and effect only to

the extent provided in the Plan and in this Confirmation Order.

22. Undeliverable Distributions. Article V.F.1 of the Plan is modified to provide that

if any Distribution is returned as undeliverable, the Creditor Trustee shall make reasonable

efforts to determine the current address of the holder of the Claim with respect to which the

Distribution was made.

23. Payment of Statutory Fees. With respect to the period prior to the Effective Date,

all Statutory Fees pursuant to 28 U.S.C. § 1930(a)(6) shall be paid by the Debtors on the

Effective Date or other required payment date. The payment of fees payable pursuant to 28

U.S.C. § 1930, together with interest, if any, pursuant to 28 U.S.C. § 3717, will be the

responsibility of the: (a) the Debtors prior to the Effective Date and (b) the Reorganized Debtors

and/or the Creditor Trust, as specified in the Plan, through such time as a particular Chapter 11

Case is closed, dismissed, or converted.

24. Monthly Operating Reports. The Debtors until the Effective Date, and the

Creditor Trustee thereafter, shall be responsible for the preparation of and filing of monthly

operating reports pursuant to the Chapter 11 Guidelines until the entry of a final decree, the cases

are dismissed or converted.

25. Closing Reports. Unless the Court orders otherwise, within fourteen (14) days

after the estate is fully administered and the Court has discharged any trustee serving in the case,


33

the Creditor Trustee must file and serve upon the United States Trustee a closing report

substantially in the form available on the Court’s website.

26. Final Order; Authorization to Consummate Plan. This Confirmation Order is a

Final Order and the period in which an appeal must be filed shall commence upon the entry

hereof. Notwithstanding Bankruptcy Rule 3020(e), this Confirmation Order shall take effect

immediately upon its entry and the Debtors are authorized to consummate the Plan immediately

after entry of this Confirmation Order and the satisfaction or waiver of all other conditions to the

Effective Date of the Plan, in accordance with the terms of the Plan.

27. Notice of Entry of Confirmation Order. No later than five business days

following the date of entry of this Confirmation Order, the Debtors shall serve notice of the entry

of this Confirmation Order pursuant to Bankruptcy Rules 2002(f)(7), 2002(k) and 3020(c) on all

holders of Claims and Equity Interests, the U.S. Trustee, and any party who has requested notice

pursuant to Bankruptcy Rule 2002.

28. Notice of Effective Date. Within five business days following the occurrence of

the Effective Date, the Reorganized Debtors shall file notice of the Effective Date with the

Court.

29. Closing of Cases. Pursuant to Article IV.N of the Plan, the Debtors have filed

contemporaneously herewith a proposed order, attached hereto as Exhibit B, providing for the

closure of the Fully Administered Cases. Such order shall be conformed to each Debtor other

than the lead Debtor Dean & DeLuca New York, Inc., and the cases of all such Debtors shall be

closed for all purposes as of the filing of the notice of Effective Date except as otherwise

provided herein. For the avoidance of doubt, the closing of such cases shall not have any effect,

in any manner, on (a) the Retained Causes of Action or Assigned Causes of Action or (b) the


34

Creditor Trust’s rights to assert objections to Claims filed against any of the Debtors that may be

asserted in accordance with the Plan.

30. Remaining Open Case and Name Change. The lead case of Dean & DeLuca New

York, Inc., identified as Case No. 20-10916 (MEW) shall remain open and subject to the Plan in

all respects. The Debtors and Reorganized Debtors are authorized to take all actions, including

but not limited to executing and filing all documents, as necessary and appropriate to change the

name of remaining Debtor Dean & DeLuca New York, Inc. to “Old DDUS, Inc.” and to amend

the caption of Case No. 20-10916 in accordance with such change, consistent with the caption of

the document attached hereto as Exhibit A.

Dated: New York, New York

November 25, 2020

s/Michael E. Wiles THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE


EXHIBIT A

Notice of Entry of Confirmation Order


UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : OLD DDUS, INC., : Case No. 20-10916 (MEW) et al. : : Jointly Administered Debtors.1 : _____________________________________ :

NOTICE OF (A) ENTRY OF ORDER CONFIRMING DEBTORS’ PLAN OF REORGANIZATION, AND (B) BAR DATES FOR FILING FEE CLAIMS, ADMINISTRATIVE

CLAIMS, PRIORITY TAX CLAIMS, AND REJECTION DAMAGES CLAIMS

TO: ALL PARTIES IN INTEREST

PLEASE TAKE NOTICE THAT:

1. On November [24], 2020, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) entered its Proposed Findings of Fact, Conclusions of Law and Order Confirming Debtors’ Plan of Reorganization (the “Confirmation Order”). Unless otherwise defined herein, capitalized terms used in this Notice shall have the meanings ascribed to such terms in the Debtors’ Fifth Modified Proposed Joint Chapter 11 Plan of Reorganization of Dean & DeLuca New York, Inc. and Its Debtor Affiliates, dated November 20, 2020 (including all exhibits thereto and as modified, the “Plan”).

2. Copies of the Confirmation Order and the Plan may be obtained by accessing https://cases.stretto.com/DeanDeLuca/.

3. The Plan will become effective in accordance with its terms on the date on which all conditions to the effective date of the Plan as set forth in Article VIII of the Plan have been satisfied or waived as provided therein (the “Effective Date”). The Debtors shall file a notice of the occurrence of the Effective Date with the Bankruptcy Court, serve a copy thereof on all parties entitled to notice in these Chapter 11 Cases, and post a copy at https://cases.stretto.com/DeanDeLuca/.

4. In accordance with Article II of the Plan, with respect to Administrative Claims (other than (a) Professional Compensation Claims addressed in Article II.B of the Plan, and (b) Priority Tax Claims addressed in Article II.C of the Plan), any and all requests for payment or proofs of Administrative Claims must be filed with the Bankruptcy Court no later than the first Business Day that is at least thirty (30) days after the Effective Date, unless otherwise ordered by the Bankruptcy Court. Objections to any Administrative Claims must be filed by the first Business Day that is one hundred




eighty (180) days after the Effective Date, which objection date may be extended by application to the Bankruptcy Court. Any Administrative Claim that is not asserted in accordance with Articles II.A and IV.H of the Plan shall be deemed disallowed and shall be forever barred against any of the Estates, the Creditor Trust, or any of their Assets or property, and the holder thereof shall be enjoined from commencing or continuing any action, employment of process or act to collect, offset, recoup, or recover such Claim.

5. In accordance with Article II.B of the Plan and Article 18(b) of the Confirmation Order, all final requests for payment of Professional Compensation Claims pursuant to Bankruptcy Code Sections 327, 328, 330, or 331 (each, a “Final Fee Application”) must be filed with the Bankruptcy Court no later than the Business Day after the date that is forty-five (45) days after the Effective Date, unless otherwise ordered by the Bankruptcy Court. Objections to such Final Fee Applications must be filed with the Bankruptcy Court and served on the requesting Professional or other entity seeking payment, no later than twenty-one (21) days (or the next Business Day if such day is not a Business Day) after the date on which the Final Fee Application was filed. Any Professional Compensation Claim that is not asserted in accordance with Article II.B of the Plan and paragraph 16(b) of the Confirmation Order shall be deemed disallowed and shall be forever barred against any of the Estates, the Creditor Trust, or any of their Assets or property, and the holder thereof shall be enjoined from commencing or continuing any action, employment of process or act to collect, offset, recoup, or recover such Claim.

6. In accordance with Article II.D of the Plan and the General Bar Date Order, all requests for payment of a Claim or a portion of a Claim for which priority is asserted under Bankruptcy Code Section 507(a)(8) (the “Priority Tax Claims”), must have been filed with the Bankruptcy Court by 4:00 p.m. (Eastern Time) on September 28, 2020. Objections to any Priority Tax Claims must be filed by the first Business Day that is one hundred eighty (180) days after the Effective Date, which objection date may be extended by application to the Bankruptcy Court. Any Priority Tax Claim that was not asserted in accordance with Article II.D of the Plan and the General Bar Date Order is deemed disallowed and is forever barred against any of the Estates, the Creditor Trust, or any of their Assets or property, and the holder thereof is enjoined from commencing or continuing any action, employment of process or act to collect, offset, recoup, or recover such Claim.

7. In accordance with paragraph 16 of the Confirmation Order and the General Bar Date Order, if the rejection by a Debtor of a contract or lease pursuant to any provision of the Plan results in a Claim by the non-Debtor party or parties to such contract or lease, such Claim shall be forever barred and shall not be enforceable against the Estates and their successors or properties, unless a Proof of Claim filed with Stretto and served on the Debtors or Reorganized Debtors, as applicable, within twenty-one (21) days of the notice of entry of the Confirmation Order. If a contract or lease is rejected by separate order of the Bankruptcy Court, the deadline for filing a Proof of Claim for any Claim resulting therefrom shall be set forth in such separate order.

[Remainder of page intentionally left blank.]


Dated: [____________], 2020 William R. Baldiga, Esq. BROWN RUDNICK LLP 7 Times Square New York, NY 10036 (212) 209-4800 and Tristan G. Axelrod, Esq. BROWN RUDNICK LLP One Financial Center Boston, MA 02111 (617) 856-8200 Counsel for the Debtor and Debtor-in-Possession


EXHIBIT B

Proposed Order Closing Chapter 11 Case


UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : [DEBTOR NAME], : Case No. 20-109XX (MEW) et al. : : Jointly Administered Debtors.1 : _____________________________________ :

ORDER CLOSING THE DEBTOR’S CHAPTER 11 CASE

Pursuant to the Proposed Findings of Fact, Conclusions of Law and Order

Confirming Debtors’ Plan of Reorganization and Article IV.N of the Debtors’ Fifth Modified

Proposed Joint Chapter 11 Plan of Reorganization of Dean & DeLuca New York, Inc. and Its

Debtor Affiliates [Docket No. 433] (the “Plan”),2 providing for the closing of certain of the

above-captioned jointly administered Chapter 11 Cases as of the filing of the notice of Effective

Date; and the Court having determined just cause exists for the relief granted herein; and upon all

of the proceedings had before the Court and after due deliberation and sufficient cause appearing

therefor,

IT IS HEREBY ORDERED THAT:

1. The Chapter 11 Case of [DEBTOR NAME] (Case No. 20-109XX (MEW)) shall be

CLOSED for all purposes as of the filing of the notice of Effective Date, without any further action

required of any of the Debtors.



2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Plan.


2. This Court shall retain jurisdiction with respect to all matters arising from or

related to the interpretation or implementation of the Plan and this Order.

Dated: _______________, 2020 New York, New York

THE HONORABLE MICHAEL E. WILES UNITED STATES BANKRUPTCY JUDGE


EXHIBIT C


William R. Baldiga, Esquire BROWN RUDNICK LLP Seven Times Square New York, NY 10036 (212) 209-4800 and Tristan G. Axelrod, Esquire (Pro Hac Vice) BROWN RUDNICK LLP One Financial Center Boston, MA 02111 Counsel for the Debtors and Debtors-in-Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK : In re: : Chapter 11 : DEAN & DELUCA NEW YORK, INC., : Case No. 20-10916 (MEW) et al. : : Jointly Administered Debtors.1 : :

FIFTH MODIFIED PROPOSED JOINT CHAPTER 11 PLAN OF REORGANIZATION

OF DEAN & DELUCA NEW YORK, INC. AND ITS DEBTOR AFFILIATES

Dated: November 20 2020

1 The Debtors in the Chapter 11 Cases and the last four digits of each Debtor's taxpayer identification number are

as follows: Dean & Deluca New York, Inc. (3111); Dean & Deluca, Inc. (2998); Dean & Deluca Brands, Inc. (2878); Dean & Deluca International, LLC (8995); Dean & Deluca Small Format, LLC (1806); Dean & Deluca Atlanta, LLC (6678); Dean & Deluca Markets, LLC (2674). The registered address for the Debtors is 251 Little Falls Drive, Wilmington, Delaware 19808.


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TABLE OF CONTENTS

Page

ARTICLE I. DEFINED TERMS AND RULES OF INTERPRETATION ................................................................... 1 A. Defined Terms .................................................................................................................................. 1 B. Rules of Interpretation .................................................................................................................... 12 C. Exhibits ........................................................................................................................................... 12

ARTICLE II. ADMINISTRATIVE AND PRIORITY CLAIMS ................................................................................ 13 A. Administrative Claims .................................................................................................................... 13 B. Professional Compensation Claims ................................................................................................. 13 C. DIP Facility Claims ......................................................................................................................... 14 D. Priority Tax Claims ......................................................................................................................... 14 E. United States Trustee Statutory Fees .............................................................................................. 14

ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS ..................... 14 A. Summary ......................................................................................................................................... 14 B. Classification and Treatment of Claims and Equity Interests ......................................................... 15 C. Elimination of Vacant Classes ........................................................................................................ 17 D. Allocation of Distributions Between Principal and Interest ............................................................ 17 E. Special Provision Governing Unimpaired Claims .......................................................................... 18 F. Non-Consensual Confirmation ........................................................................................................ 18

ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN ........................................................................ 18 A. General Settlement of Claims ......................................................................................................... 18 B. Restructuring Transactions ............................................................................................................. 18 C. The Reorganized Debtors ................................................................................................................ 18 D. Creditor Trust .................................................................................................................................. 20 E. Reserved. ......................................................................................................................................... 24 F. Reorganization Transactions and Funding of the Reorganized Debtors and Creditor Trust ........... 24 G. Operations of the Debtors Between the Confirmation Date and the Effective Date ....................... 27 H. Establishment of the Administrative Bar Date ................................................................................ 28 I. Term of Injunctions or Stays ........................................................................................................... 28 J. Reorganized Debtors’ Equity Interests ........................................................................................... 28 K. Corporate Action; Effectuating Documents and Transactions ........................................................ 29 L. Directors and Officers of the Reorganized Debtors ........................................................................ 29 M. Preservation of Rights of Action ..................................................................................................... 29 N. Final Certification and Case Closing .............................................................................................. 30

ARTICLE V. PROVISIONS GOVERNING DISTRIBUTIONS ............................................................................... 30 A. Initial Distribution Date .................................................................................................................. 30 B. Treatment of Disputed Claims ........................................................................................................ 31 C. Subsequent Distributions ................................................................................................................ 31 D. Distributions in Respect of the Election to Receive New Common Shares .................................... 31 E. Record Date for Distributions ......................................................................................................... 31 F. Delivery of Distributions ................................................................................................................ 32 G. Manner of Cash Payments Under the Plan ...................................................................................... 32 H. Time Bar to Cash Payments by Check ............................................................................................ 32 I. Compliance with Tax Requirements ............................................................................................... 33 J. Postpetition Interest on Claims ....................................................................................................... 33 K. No Distribution in Excess of Allowed Amount of Claim ............................................................... 33 L. Setoff and Recoupment ................................................................................................................... 33

ARTICLE VI. DISPUTED CLAIMS .......................................................................................................................... 33 A. No Distribution Pending Allowance ............................................................................................... 33


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B. Claims Objection Deadline ............................................................................................................. 33 C. Resolution of Disputed Claims ....................................................................................................... 34 D. Estimation of Claims ....................................................................................................................... 34 E. Disallowance of Claims .................................................................................................................. 34 F. Adjustment to Claims Without Objection ....................................................................................... 34 G. Amendments to Claims or Interests ................................................................................................ 35

ARTICLE VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES ........................... 35 A. Rejection of Executory Contracts and Unexpired Leases ............................................................... 35 B. Claims Based on Rejection of Executory Contracts or Unexpired Leases ...................................... 36 C. Debtors’ Insurance Policies............................................................................................................. 36

ARTICLE VIII. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE .......................................................... 37 A. Conditions Precedent to the Effective Date .................................................................................... 37 B. Effect of Non-Occurrence of Conditions to the Effective Date ...................................................... 37 C. Establishing the Effective Date ....................................................................................................... 37

ARTICLE IX. RELEASE, INJUNCTIVE AND RELATED PROVISIONS ............................................................. 37 A. Compromise and Settlement ........................................................................................................... 37 B. Releases and Related Matters .......................................................................................................... 37 C. Waiver of Limitations on Releases of Unknown Claims ................................................................ 38 D. Exculpation ..................................................................................................................................... 38 E. Injunction ........................................................................................................................................ 39 F. Releases of Liens ............................................................................................................................ 39 G. Preservation of Rights of Action ..................................................................................................... 39

ARTICLE X. RETENTION OF JURISDICTION ...................................................................................................... 40

ARTICLE XI. MISCELLANEOUS PROVISIONS .................................................................................................... 41 A. Modification of Plan ....................................................................................................................... 41 B. Revocation of Plan .......................................................................................................................... 41 C. Payment of Statutory Fees .............................................................................................................. 41 D. Successors and Assigns ................................................................................................................... 42 E. Governing Law ............................................................................................................................... 42 F. Reservation of Rights ...................................................................................................................... 42 G. Section 1146 Exemption ................................................................................................................. 42 H. Entire Agreement ............................................................................................................................ 42 I. Exhibits ........................................................................................................................................... 42 J. Non-Severability ............................................................................................................................. 42 K. Dissolution of Committee ............................................................................................................... 43 L. Section 1125(e) Good Faith Compliance ........................................................................................ 43 M. Further Assurances .......................................................................................................................... 43 N. Service of Documents ..................................................................................................................... 43 O. Filing of Additional Documents ...................................................................................................... 43 P. No Stay of Confirmation Order ....................................................................................................... 43 Q. Aid and Recognition ....................................................................................................................... 43 R. Special Provisions Regarding Taxing Authorities .......................................................................... 44


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TABLE OF EXHIBITS

Plan Supplement2

2 Exhibits to this Plan have been included with the Plan Supplement, which was Filed separately and in substantially final form with the

Bankruptcy Court on November 13, 2020. See Docket Nos. 250, 360, 415, 423. The Plan Supplement shall be available for inspection (i) at the Office of the Clerk of the Bankruptcy Court, or (ii) at http://www.pacer.gov, or (iii) from the Noticing Agent website at https://cases.stretto.com/DeanDeLuca, or (iv) additionally, interested parties can obtain copies by contacting Debtors’ counsel once they are filed. The Debtors, in consultation with the Committee, reserve the right to modify, amend, supplement, restate or withdraw the Plan Supplement.


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DEBTORS’ PLAN OF LIQUIDATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE

Pursuant to title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., the Debtors, as plan proponents, hereby respectfully propose the following plan of reorganization under chapter 11 of the Bankruptcy Code.

ARTICLE I.

DEFINED TERMS AND RULES OF INTERPRETATION

A. Defined Terms

Unless the context otherwise requires, the following terms shall have the following meanings when used in capitalized form herein:

1. “33 Ninth Claims” means any and all claims filed, acquired, scheduled or otherwise asserted in the Chapter 11 Cases by 33 Ninth Retail Owner LLC (a Delaware limited liability company having an address c/o Midtown Equities LLC, 141 Fifth Ave. 2nd Fl., New York, NY 10010), including the claims denominated as Proof of Claim Nos. 181 and 182 and the claims scheduled as Claim Nos. 214643 and 214644.

2. “Accredited Investor” shall have the meaning provided in Rule 501(a) of Regulation D of the United States Securities and Exchange Commission, 17 C.F.R. § 230.501. For the avoidance of doubt, Pace Development, Pace Food, and the Bank are, and for purposes of this Plan shall be deemed to be, Accredited Investors.

3. “Additional Potential Recoveries” means Net Cash Proceeds from any Causes of Action commenced (i) by the Reorganized Debtors against DDJ, and (ii) by the Creditor Trust from the Assigned Causes of Action.

4. “Administrative and Priority Claims Reserve” means the reserve to be established and maintained by the Creditor Trust and funded on the Effective Date with such Cash in a segregated escrow account in the amount of $7,638,658.00, for the payment of accrued but unpaid U.S. Trustee Fees and Administrative, Priority, and Professional Compensation Claims that are Allowed after the Effective Date to the extent that such Claims have not been paid in full on or before the Effective Date.

5. “Administrative Bar Date” means the date determined pursuant to Article IV.H of the Plan.

6. “Administrative Claims” means Claims that have been timely filed before the Administrative Bar Date, pursuant to the deadline and procedure set forth herein (except as otherwise provided herein or by a separate order of the Bankruptcy Court), for costs and expenses of administration under Sections 503(b), 507(b) or 1114(e)(2) of the Bankruptcy Code, including, without limitation: (a) the actual and necessary costs and expenses incurred after the Petition Date and prior to the Effective Date of preserving the Estates and operating the businesses of the Debtors and Reorganized Debtors (such as wages, salaries or commissions for services and payments for goods and other services); and (b) all fees and charges assessed against the Estates under 28 U.S.C. §1930; provided, however, that the U.S. Trustee shall not be required to file a request for payment of fees and charges assessed against the Estates under 28 U.S.C. § 1930 before the Administrative Bar Date; provided, further, that all requests of Governmental Units for payment of Administrative Tax Claims shall not be subject to the Administrative Bar Date. As used herein, the term “Administrative Claims” shall exclude Professional Compensation Claims.

7. “Administrative Tax Claims” means Administrative Claims by a Governmental Unit for taxes under Section 503(b)(1)(B), (C) or (D) (and for interest and/or penalties related to such taxes) for any tax year or period, all or any portion of which occurs or falls within the period from and including the Petition Date through and including the Effective Date.

8. “Affiliate” has the meaning set forth in Section 101(2) of the Bankruptcy Code.


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9. “Allowed” means, with respect to any Claim, except as otherwise provided herein: (a) a Claim that has been scheduled by the Debtors in their Schedules as other than disputed, contingent or unliquidated that has not been superseded by a filed proof of Claim and as to which the Debtors, Committee, Creditor Trust or another party-in-interest has not Filed an objection by the Claims Objection Deadline; (b) a proof of Claim that has been filed and as to which the Debtors, Committee, Creditor Trust, or another party-in-interest has not Filed an objection by the Claims Objection Deadline; (c) a Claim that either is not Disputed by the Claim Objection Deadline or has been allowed by a Final Order; (d) a Claim that is allowed: (i) in any stipulation with the Debtors or the Creditor Trust, as applicable, of amount and nature executed prior to or following the entry of the Confirmation Order and, if necessary, approved by the Bankruptcy Court; or (ii) in or pursuant to any contract, instrument, indenture or other agreement entered into or assumed in connection herewith; (e) a Claim that is allowed pursuant to the terms hereof; (f) a Claim that is estimated pursuant to Section 502(c) of the Bankruptcy Code, unless otherwise and explicitly provided by order of the Bankruptcy Court; or (g) a Disputed Claim as to which a proof of Claim has been timely filed and as to which no objection has been Filed by the Claims Objection Deadline.

10. “Assigned Causes of Action” means any and all avoidance, recovery, subordination or other actions or remedies that may be brought on behalf of the Debtors or the Reorganized Debtors or their Estates under the Bankruptcy Code or applicable non-bankruptcy law, including without limitation, actions or remedies under Sections 544, 547, 548, or 550 of the Bankruptcy Code; provided, however, that the Assigned Causes of Action shall not include any rights or Causes of Action against (i) a Released Party or Exculpated Party, and their respective Related Parties, (ii) DDJ, or (iii) any intellectual property licensee or franchisee of the Debtors other than to the extent and for no other purpose than as a defense or objection to a Scheduled Claim or Proof of Claim filed in these Chapter 11 Cases; and provided further, that the Assigned Causes of Action shall include all rights, remedies, and Causes of Action against (x) Sorapoj Techakraisri unless and until such time that Sorapoj Techakraisri becomes a Released Party and (y) the Finch Parties unless and until such time that the Finch Parties become Released Parties.

11. “Available Cash” means any Cash received by the Creditor Trustee and thereafter held by the Creditor Trustee and available from time to time for Distributions.

12. “Avoidance Actions” means any and all avoidance, recovery, subordination or other actions or remedies that may be brought on behalf of the Debtors or the Reorganized Debtors or their Estates or the Committee or the Creditor Trust, as applicable, under the Bankruptcy Code or applicable non-bankruptcy law, including, without limitation, actions or remedies under Sections 510, 542, 543, 544, 545, 547, 548, 549, 550, 551, 552, and 553 of the Bankruptcy Code.

13. “Bank” means The Siam Commercial Bank Public Company Limited, a Thailand public limited company.

14. “Bank Prepetition Secured Claim” means the Secured Claim of Bank in respect of the Bank Loan, including all interest and other obligations arising thereunder, as such Bank Prepetition Secured Claim may be scheduled, filed, amended, modified, altered, or superseded.

15. “Bank Loan” means that Loan Advance and Security Agreement between Bank, the Debtors, Pace Development, and Pace Food executed March 27, 2020.

16. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101 et seq., as amended from time to time.

17. “Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York.

18. “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the Southern District of New York, and general orders and chambers procedures of the Bankruptcy Court, each as applicable to the Chapter 11 Cases and as amended from time to time.

19. “Business Day” means any day, other than a Saturday, Sunday or “legal holiday” (as that term is defined in Fed. R. Bankr. P. 9006(a)).


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20. “Cash” means legal tender of the United States of America or the equivalent thereof.

21. “Causes of Action” means all claims, actions, causes of action, choses in action, Avoidance Actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, remedies, rights of set-off, third-party claims, subrogation claims, contribution claims, reimbursement claims, indemnity claims, counterclaims and crossclaims that are or may be pending on the Effective or instituted after the Effective Date against any Entity, based in law or equity, whether direct, indirect, derivative or otherwise and whether asserted or unasserted as of the Effective Date.

22. “Change of Control” means (a) any transaction or series of related transactions that result in any person or group (within the meaning of Section 13(d)(3) of the Exchange Act) acquiring shares, or beneficial ownership, of New Common Shares that represent more than 50% the total voting power of Reorganized Parent or (b) a sale or disposition of all or substantially all of the assets of Reorganized Parent and its subsidiaries on a consolidated basis to an entity with respect to which, following such sale or other disposition, at least 50% of the combined voting power of the then outstanding voting securities of such entity is then beneficially owned, directly or indirectly, by entities (or Corporate Affiliates of such entities) who were not beneficial owners, respectively, of the New Common Shares immediately prior to such sale or other disposition.

23. “Chapter 11 Cases” means the chapter 11 cases commenced when the Debtors each filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code on the Petition Date, which are jointly administered under case number 20-10916 (MEW).

24. “Claim” means a “claim” (as that term is defined in Section 101(5) of the Bankruptcy Code) against a Debtor.

25. “Claims Objection Deadline” means the last day for filing objections to Claims and Interests, including any extensions thereof, as provided in Article VI of the Plan.

26. “Claims Register” means the official claims registers in the Debtors’ Chapter 11 Cases maintained by the Noticing Agent on behalf of the Clerk of the Bankruptcy Court.

27. “Class” means a category of holders of Claims or Equity Interests as set forth in Article III hereof pursuant to Section 1122(a) of the Bankruptcy Code.

28. “Committee” means the official committee of unsecured creditors of the Debtors appointed by the United States Trustee in the Chapter 11 Cases pursuant to Section 1102 of the Bankruptcy Code.

29. “Confirmation Date” means the date on which the Confirmation Order is entered by the Bankruptcy Court.

30. “Confirmation Order” means the order of the Bankruptcy Court confirming the Plan pursuant to Section 1129 of the Bankruptcy Code.

31. “Corporate Affiliate” means an “Affiliate,” as such term is defined in the Stockholders Agreement.

32. “Creditor Trust” means the creditor recovery trust established on the Effective Date in accordance with Article IV.D.2 of the Plan and the Creditor Trust Agreement.

33. “Creditor Trust Agreement” means the agreement to be executed as of the Effective Date substantially in the form filed in the Plan Supplement establishing the Creditor Trust and delineating the terms and conditions of the Creditor Trust, including the powers, rights and duties of the Creditor Trustee.

34. “Creditor Trust Assets” means, collectively, (a) the Assigned Causes of Action, (b) the GUC Available Cash, (c) the Techakraisri Payment, (d) the Finch Payment, and (e) other assets that may be transferred or otherwise provided, directly or indirectly, to the Creditor Trust on or after the Effective Date by any Person.

35. “Creditor Trust Beneficiary” means a Holder of GUC Cash Election Claims, fixed as of the date of entry of the Confirmation Order, to the extent such GUC Cash Election Claim is determined to be an Allowed


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Claim. For the avoidance of doubt, (a)(i) holders of General Unsecured Claims that elect to receive treatment pursuant to Article III.B.4.(b)(i)(2) of the Plan, and (ii) the Bank, Pace Development, Pace Food, Sorapoj Techakraisri, and the Finch Parties are not Creditor Trust Beneficiaries in respect of any Claims held thereby as of the Record Date, and (b) holders of Allowed Administrative Claims, Priority Claims, and Professional Compensation Claims, are not Creditor Trust Beneficiaries, but shall be paid by the Creditor Trust from the Administrative and Priority Claims Reserve or from tax refunds, as applicable to the extent such Allowed Claims are not satisfied in full on the Effective Date.

36. “Creditor Trustee” means the disinterested individual selected by the Committee and disclosed prior to the Confirmation Hearing to act as trustee of and administer the Creditor Trust.

37. “Cure Cost” means all amounts required to cure any monetary defaults under any Executory Contract or Unexpired Lease (or such lesser amount as may be agreed upon by the parties under an Executory Contract or Unexpired Lease) that is to be assumed by the Debtors pursuant to sections 365 or 1123 of the Bankruptcy Code.

38. “DDAT” means Dean & DeLuca Asia (Thailand) Co., Ltd., a company registered and existing under the laws of Thailand whose registered office is at 723 Teo Hong Silom Bldg. 5 Fl. Silom Rd., Silom, Bang Rak, Bangkok 10500, Thailand.

39. “DDJ” means Dean & DeLuca Japan Co., Ltd., a company registered and existing under the laws of Japan whose registered office is or was at Daiwa Jingumae Building, 4th floor, 2-4-11, Jingumae, Shibuya-ku, Tokyo-to, 150-0001, and/or Welcome Co., Ltd., a company established and registered under the laws of Japan and with a registered office at Daiwa Jinguamae Building, 4th Floor, 2-4-11 Jinguame, Shibuya-ku, Tokyo, Japan together with any Related Parties of the foregoing in their capacities as such.

40. “Debtors” or “Debtors in Possession” means, collectively, the above-captioned debtors and debtors in possession specifically identified on the cover page to this Plan and as defined in footnote 1 above.

41. “Debtor Boards of Directors” means those individuals appointed in accordance with the Debtor Organizational Documents to serve as members of the respective boards of directors, boards of managers, or equivalent governing bodies, of each of the Debtors.

42. “Debtor Organizational Documents” means the applicable bylaws, charter documents, certificates of incorporation, certificates of formation, limited liability company operating agreements and related documents regarding the corporate existence and governance of the Debtors.

43. “Debtor Privilege” means any attorney-client privilege, work product protection, joint interest privilege or other privilege or immunity attaching to any documents or communications (in any form, including, without limitation, written, electronic or oral) held by the Debtors.

44. “DIP Facility” means the senior secured superpriority term loan from the Bank to the Debtors in the aggregate principal amount of $2,417,433.38, subject to and as further described in the Final Order Pursuant to 11 U.S.C. §§ 105, 361, 362, 363, 364, and 507, Bankruptcy Rules 2002, 4001, 6004, and 9014, and Local Rule 4001-2 (I) Authorizing the Debtors to Obtain Post-Petition Financing, (II) Granting Liens and Providing Super-Priority Administrative Expense Status, (III) Granting Adequate Protection, and (IV) Granting Related Relief [Docket No. 77], and including all interest, fees and reimbursement obligations arising thereunder.

45. “DIP Facility Claim” means the claim of the DIP Lender in respect of the Debtors’ obligations under the DIP Facility.

46. “DIP Lender” means the Bank.

47. “Disclosure Statement Order” means the order approving the Disclosure Statement, which was entered by the Bankruptcy Court on October 2, 2020 [D.I. 358].

48. “Disclosure Statement” means the Disclosure Statement for the Third Modified Proposed Joint Chapter 11 Plan of Reorganization of Dean & DeLuca New York, Inc. and Its Debtor Affiliates, dated as of October 2, 2020, prepared and distributed in accordance with the Bankruptcy Code, Bankruptcy Rules and any other


5

applicable law, and approved by the Bankruptcy Court in the Disclosure Statement Order, as it is amended, supplemented or modified from time to time.

49. “Disputed” means, with respect to any Claim, that portion (or the entirety) of the Claim that is not an Allowed Claim and: (a) as to which a Proof of Claim has been filed or deemed filed under the Bankruptcy Code or an order of the Bankruptcy Court; (b) as to which the Debtors, Committee, or Creditor Trust has Filed or may File a timely objection or request for estimation in accordance with the Bankruptcy Code, the Bankruptcy Rules, Plan, or Creditor Trust Agreement, as applicable; or (c) is otherwise disputed by the Debtors, Committee, or Creditor Trust in accordance with applicable law, which objection, request for estimation or dispute has not been withdrawn or determined by a Final Order. Before the time that an objection has been or may be filed, a Claim shall also be considered Disputed (x) if the amount or classification of the Claim specified in any proof of Claim exceeds or varies from the amount or classification of any corresponding Claim scheduled by the Debtors in their Schedules; (y) in its entirety, if any corresponding Claim scheduled by the Debtors was scheduled as unliquidated, disputed, or contingent in the Debtors’ Schedules; or (z) in its entirety, if no corresponding Claim was scheduled by the Debtors in their Schedules.

50. “Disputed Claim Reserve” means one or more reserves of such Cash as the Creditor Trust estimates to be reasonably necessary to satisfy the Distributions that could be required to be made by the Creditor Trust under the Plan and the Creditor Trust Agreement on account of Allowed Administrative Claims, Priority Claims, Professional Compensation Claims, GUC Cash Election Claims, or otherwise.

51. “Distributions” means the distributions of Cash to be made to Holders of Allowed Claims in accordance with the Plan.

52. “Distribution Credit” means a credit equal to 13% of the amount of any Third Party Claim.

53. “Distribution Date” means the Initial Distribution Date and any Subsequent Distribution Date.

54. “Effective Date” means the date established pursuant to Article VIII.B of the Plan.

55. “Eligible Holder” means, as of the NCS Election Record Date, a holder of an Allowed General Unsecured Claim (to the extent of such Allowed General Unsecured Claim as of the NCS Election Record Date) who is an Accredited Investor as of the NCS Election Record Date.

56. “Entity” has the meaning set forth in Section 101(15) of the Bankruptcy Code.

57. “Equity Interest” means any equity interest in a Debtor that existed immediately prior to the Petition Date, including, without limitation: (a) any common equity interest in a Debtor that existed immediately prior to the Petition Date, including, without limitation, all issued, unissued, authorized or outstanding shares of common stock, together with any warrants, options or legal, contractual or equitable rights to purchase or acquire such interests at any time; (b) any preferred equity interest in a Debtor that existed immediately prior to the Petition Date, including, without limitation, all issued, unissued, authorized or outstanding shares of preferred stock; and, as to any of the foregoing, (c) any warrants, options or legal, contractual or equitable rights to purchase or acquire such interests.

58. “Estate” means the estate of each Debtor created on the Petition Date by Section 541 of the Bankruptcy Code.

59. “Exchange Act” means the Securities Exchange Act of 1934, as amended.

60. “Exculpated Parties” means, collectively, (a) the Plan Sponsor Parties, (b) Debtors, (c) the Debtors’ officers and directors, (d) the Committee and each of its members solely in such capacity, (e) Sorapoj Techakraisri upon satisfaction of the Techakraisri Payment in full, (f) the Finch Parties upon satisfaction of the Finch Payment in full, and (g) each of the respective professionals of the foregoing that served in such capacities at any time between the Petition Date and the Effective Date.

61. “Executory Contract” means a contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.


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62. “Exit Facility” means that certain senior secured term loan credit facility in the aggregate principal amount of $10,000,000 to be entered into by the Reorganized Debtors, jointly and severally, and the Bank on the Effective Date.

63. “Exit Facility Documents” means the agreements and related documents governing the Exit Facility, the terms of which shall be included with the Plan Supplement, and the final versions of which shall be disclosed and executed prior to the Effective Date.

64. “Exit Facility Loans” means the loans outstanding under the Exit Facility.

65. “File” or “Filed” means, with respect to any pleading, entered on the docket of the Chapter 11 Cases and properly served in accordance with the Bankruptcy Rules.

66. “Final Certification” means a Filing by the Creditor Trust with the Bankruptcy Court (a) certifying that all distributions on Allowed Claims have been made, and (b) certifying that the Creditor Trust’s duties have all been completed.

67. “Final Order” means an order or judgment of the Bankruptcy Court, or other court of competent jurisdiction with respect to the subject matter, which has not been reversed, stayed, modified or amended, and as to which the time to appeal, petition for certiorari or move for reargument or rehearing has expired and no appeal or petition for certiorari has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought or has otherwise been dismissed with prejudice.

68. “Finch & Affiliates POCs” means any and all claims filed, acquired, scheduled or otherwise asserted by Finch & Partners in the Chapter 11 Cases, including the claim denominated as Proof of Claim No. 174 and the claim scheduled as Claim No. 215039.

69. “Finch & Partners” means Finch & Partners Corporate Creative Ltd., a UK company with registration number 09493895, whose registered office is 47-48 Piccadilly, Mayfair, London W1JODT, UK.

70. “Finch Parties” means Charles Finch, Finch & Partners, and any Related Parties of the foregoing, including but not limited to Grovepark.

71. “Finch Payment” means Cash in the amount of $200,000.00 to be deposited into the IOLTA account of Charles Finch’s counsel no later than one (1) day prior to the Confirmation Hearing and paid to the Creditor Trust on the Effective Date.

72. “Finch POC” means any and all claims filed, acquired, scheduled or otherwise asserted by Finch in the Chapter 11 Cases, including the claim denominated as Proof of Claim No. 173.

73. “General Bar Date Order” means the Order Establishing Deadlines for Filing Proofs of Claim and Approving Form and Manner of Notice Thereof [Docket No. 96] and any other and further order(s) entered by the Court establishing the bar dates for filing proofs of claim and granting related relief and implementing related procedures.

74. “General Bar Date” means the date established in the General Bar Date Order as the deadline for the filing of proofs of claim other than claims of Government Units or claims otherwise subject to specific timing restrictions.

75. “General Unsecured Claims” means Claims against any Debtor that are not Secured Claims, Administrative Claims, Priority Claims, Professional Compensation Claims, Intercompany Claims, or Equity Interests.

76. “Governmental Unit Bar Date” means the date established in the General Bar Date Order as the deadline for the filing of proofs of claim by and for each and every Governmental Unit.

77. “Governmental Unit” has the meaning set forth in Section 101(27) of the Bankruptcy Code.


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78. “Grovepark” means Grovepark International Limited, a Bahamas corporation whose registered address is Winterbotham Place, Marlborough & Queen Streets, PO Box CB 11.343, Nassau, Bahamas.

79. “GUC Available Cash” means the Cash remaining in the Administrative and Priority Claims Reserve after payment of all Administrative Claims, Priority Claims and Professional Compensation Claims and/or establishing a Disputed Claim Reserve to satisfy such claims in accordance with Article IV.F.5 hereof, which shall be maintained by the Creditor Trust after the Effective Date.

80. GUC Cash Election Claim” means a General Unsecured Claim for which an election has been made or deemed to have been made to receive treatment pursuant to Article III.B.4.(b)(i)(1) of the Plan.

81. “Holders” means holders of Allowed Claims entitled to receive Distributions from the Reorganized Debtors under the Plan, whether or not such Claims were Allowed Claims on the Effective Date.

82. “Impaired” means, with respect to a Claim, Equity Interest, or Class of Claims or Equity Interests, “impaired” within the meaning of Sections 1123(a)(4) and 1124 of the Bankruptcy Code.

83. “Initial Distribution Date” means the date on which the Creditor Trust shall make its initial Distribution, which shall be a date selected by the Creditor Trustee.

84. “Intercompany Claims” means Claims held by a Debtor or Non-Debtor Affiliate against a Debtor.

85. “Intercompany Interest” means any Equity Interest of a Debtor or Non-Debtor Affiliate that is held by another Debtor, including (a) all issued, unissued, authorized or outstanding shares of stock together with any warrants, options or contractual rights to purchase or acquire such Equity Interests at any time and all rights arising with respect thereto and (b) partnership, limited liability company or similar interests in a Debtor.

86. “NCS Drag Rights” means the right of NCS Majority Holders to obligate NCS Minority Holders to transfer all (but not less than all) of their shares in connection with a Change of Control to a transferee that is not a triggering NCS Majority Holder (or a Corporate Affiliate of any such NCS Majority Holder or of the Company) and to obligate NCS Minority Holders to take (and to cause Reorganized Parent to take) all necessary actions to cause the consummation of such transfer and Change of Control transaction, including the waiver of any appraisal rights in connection therewith, provided that (a) such NCS Majority Holders desire to effect a Change of Control transaction, (b) such NCS Majority Holders shall have provided the NCS Offering Notice, and (c) such transfer by NCS Minority Holders shall be on the same terms and conditions as those applicable to the NCS Majority Holders (including payment by the NCS Minority Holders of their pro rata shares of all reasonable costs associated with such transaction). The NCS Drag Rights shall be further detailed in the Reorganized Parent Organizational Documents.

87. “NCS Election Procedures” means the document setting forth the procedures for electing and receiving treatment pursuant to Article III.B.4(b)(i)(2), which shall be provided in or as a supplement to the Disclosure Statement.

88. “NCS Election Record Date” means the record date for determining the entitlement of Holders to elect and receive treatment pursuant to Article III.B.4(b)(i)(2), which date shall be provided in or as a supplement to the Disclosure Statement.

89. “NCS Majority Holders” means one or more holders of New Common Shares (together with their Corporate Affiliates) holding, individually or in the aggregate, greater than 50% of the issued and outstanding New Common Shares.

90. “NCS Minority Holders” means one or more holders of New Common Shares (together with their Corporate Affiliates) holding, individually or in the aggregate, less than 50% of the issued and outstanding New Common Shares.

91. “NCS Offering Notice” means a written notice provided by the NCS Majority Holders, via the Reorganized Debtors, to all other holders of New Common Shares, notifying such holders of the proposed transfer or Change of Control transaction, as applicable, and indicating (i) that such holders of New Common Shares may exercise their NCS Tag Rights or (ii) that such holders will be required to transfer all of their New Common Shares


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in connection with the NCS Drag Rights, which notice shall be provided in connection with any contemplated transfer of New Common Shares in connection with a transaction triggering NCS Drag Rights or NCS Tag Rights.

92. “NCS Rights” means the NCS Drag Rights, and NCS Tag Rights, each of which is described herein, together with certain transfer restrictions and other features of the New Common Shares, all of which shall be detailed in the Reorganized Parent Organizational Documents.

93. “NCS Tag Rights” means the right of NCS Minority Holders to participate in any proposed transfer of New Common Shares from NCS Majority Holders to a transferee(s), provided that (a) NCS Majority Holders desire to transfer to a transferee(s) all or a portion of their shares in a transaction or series of transactions that would result in the transfer of greater than 50% of the outstanding New Common Shares, (b) such NCS Minority Holders take all necessary actions to cause the consummation of such transfer and transaction including the waiver of any appraisal rights in connection therewith, (c) such NCS Minority Holders have provided written notice to the NCS Majority Holders within fifteen days following receipt of the NCS Offering Notice that such NCS Minority Holders shall transfer all (and not less than all) of the shares held by such NCS Minority Holders, (d) such transfer by NCS Minority Holders shall be on the same terms and conditions as those applicable to the NCS Majority Holders (including payment by the NCS Minority Holders of their pro rata share of all reasonable costs associated with such transaction), and (e) no shares shall be transferred by any NCS Majority Holder to the proposed transferee(s) unless and until either (i) the proposed transferee(s) commits to purchase any and all shares held by NCS Minority Holders electing to exercise their NCS Tag Rights or (ii) one or more of the NCS Majority Holders purchase from the NCS Minority Holders the New Common Shares such NCS Minority Holders would have been entitled to sell to the proposed transferee(s) pursuant to the NCS Tag Rights, at the same price and on the same terms and conditions on which such New Common Shares would have been sold to the proposed transferee(s) pursuant to the NCS Tag Rights. The NCS Tag Rights shall be further detailed in the Reorganized Parent Organizational Documents.

94. “Net Cash Proceeds” means proceeds, less the cost and expense of recovery.

95. “New Common Shares” means the shares of common stock, $0.01 par value per share, of Reorganized Parent to be issued on the Effective Date pursuant to Article IV.F hereof, which shares shall constitute all of the issued direct or indirect equity of Reorganized Parent as of the Effective Date, and which shares shall be subject to the terms and conditions of the Reorganized Parent Organizational Documents. The number of New Common Shares issued by the Reorganized Parent shall be equal to the dollar amount of all Allowed General Unsecured Claims held by Holders duly electing and entitled to treatment pursuant to Article III.B.4(b)(i)(2) hereof, and each such electing Holder shall receive one New Common Share per dollar of its Allowed General Unsecured Claim.

96. “New DIP Facility Distribution” means a senior secured 5-year term loan to be extended by the Bank to the Reorganized Debtors in the principal amount of $538,658.00, on terms otherwise consistent with the Exit Facility. For the avoidance of doubt, the New DIP Facility Distribution can be documented in the form of a new loan or an extension of the existing loan under the DIP Facility as the Bank deems appropriate.

97. “New Loan Distribution” means a senior secured 5-year term loan in the principal amount of $750,000.00 plus all accrued interest thereunder to be extended by the Bank to either the Reorganized Debtors or to the Reorganized Parent and guaranteed by the Reorganized Debtors, as the Bank Deems appropriate, on terms otherwise consistent with the Bank Loan.

98. “Non-Debtor Affiliate” means any person that is (a) an Affiliate of a Debtor and (b) neither (x) a Debtor nor (y) Pace Development, Pace Food or any holder of Equity Interests therein, or any subsidiary thereof other than any Debtor or direct or indirect subsidiary of any Debtor.

99. “Noticing Agent” means Stretto. Stretto is the trade name of Bankruptcy Management Solutions, Inc. and its subsidiaries.

100. “Other Secured Claim” means any Secured Claim that is not the DIP Facility Claim or the Bank Prepetition Secured Claim.

101. “Pace Development” means Pace Development Corporation Public Company Limited, a Thailand public limited company.


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102. “Pace Food” means Pace Food Retail Co., LTD, a Thailand limited company.

103. “Pace Obligations” means the obligations incurred by the Debtors to Pace Development and Pace Food by virtue of various loan agreements, in the aggregate amount of approximately $240 million.

104. “Parent” means Debtor Dean & DeLuca, Inc., as may be re-named from time to time.

105. “Person” has the meaning ascribed to such term in Bankruptcy Code Section 101(41).

106. “Petition Date” means March 31, 2020, the date on which the Debtors Filed the Chapter 11 Cases.

107. “Plan” means this plan of reorganization under chapter 11 of the Bankruptcy Code, either in its present form or as it may be altered, amended, modified or supplemented from time to time in accordance with the Bankruptcy Code, the Bankruptcy Rules or herewith, as the case may be, and the Plan Supplement, which is incorporated herein by reference.

108. “Plan Sponsor Parties” means Pace Development, Pace Food, and the Bank.

109. “Plan Sponsor Released Claims” means any and all claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action, and liabilities whatsoever in connection with or in any way relating to the Debtors, the Debtors’ Representatives and Related Parties (in their capacity as such), the conduct of the Debtors’ businesses, the Chapter 11 Cases, the Exit Facility, the Reorganized Parent Organizational Documents, including without limitation the Stockholders Agreement, the Disclosure Statement or the Plan (other than the rights of the Debtors, Committee, Creditor Trust, or a creditor holding an Allowed Claim to enforce the obligations under the Confirmation Order and the Plan and the contracts, instruments, releases, and other agreements or documents delivered thereunder), whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, equity, or otherwise, whether for tort, contract, violation of federal or state securities or other law, that are based in whole or part on any act, omission, transaction, event, or other occurrence taking place on or prior to the Effective Date, provided that the Committee and Creditor Trust, as applicable, shall retain the right to object to or otherwise dispute any Claim other than a Claim that is expressly deemed Allowed by the Plan.

110. “Plan Supplement” means the compilation of documents and forms of documents, schedules and exhibits to the Plan, as the same may be altered, amended, modified, or supplemented.

111. “Plan Supplement Filing Date” means the date that is six days prior to the date on which objections to Confirmation are due, or such other date as may be determined by order of the Bankruptcy Court.

112. “Priority Claims” means Priority Non-Tax Claims and Priority Tax Claims.

113. “Priority Non-Tax Claims” means Claims or portions thereof entitled to priority in payment pursuant to Sections 507(a)(4), 507(a)(5), 507(a)(7) or 507(a)(9) of the Bankruptcy Code, in any case to the greatest extent permitted.

114. “Priority Tax Claims” means Claims of Governmental Units of the kind specified in Section 507(a)(8) of the Bankruptcy Code.

115. “Pro Rata Share” means, as to a particular holder of a particular Claim, the ratio that the amount of such Claim held by such claimholder bears to the aggregate amount of all Claims in the particular Class or category. Such ratio shall be calculated as if all Claims in the particular Class or category asserted against all Debtors are Allowed Claims as of the Effective Date, unless specifically provided otherwise in the Plan.

116. “Professional” means (a) any Entity employed pursuant to a Final Order in accordance with Sections 327, 328, or 1103 of the Bankruptcy Code, and to be compensated for services rendered and expenses incurred pursuant to Sections 327, 328, 329, 330, or 331 of the Bankruptcy Code; and (b) ordinary course Professionals that were retained with permission of the Court.


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117. “Professional Compensation Claim” means a Claim of a Professional for professional services rendered or costs incurred on or after the Petition Date. For the avoidance of doubt, Professional Compensation Claims may include Claims of Professionals for services estimated to be provided through and including the Effective Date.

118. “Professional Claims Bar Date” means 5:00 p.m. (Prevailing Eastern Time) on the date that is the first Business Day after the date that is forty-five (45) days after the Effective Date.

119. “Ratable Proportion” means, with reference to any Distribution on account of any Allowed Claim in any Class, the ratio (expressed as a percentage) that the amount of the Allowed Claim bears to the aggregate amount of all Allowed and Disputed Claims in that Class entitled to share in the same recovery as such Allowed Claim under the Plan.

120. “Record Date” means the record date for determining the entitlement of Holders to receive Distributions under the Plan on account of Allowed Claims which shall be five (5) Business Days prior to the Confirmation Date.

121. “Related Parties” means, with respect to any party, its Affiliates, its and its Affiliates’ predecessors, successors and assigns, subsidiaries, managed accounts or funds, current and former directors, principals, managers, officers, and equity interest holders (whether such interests are held directly or indirectly), equity interest holders’ Affiliates, spouses, trusts, assigns, heirs, beneficiaries, members, partners, current and former employees, advisors, accountants, representatives, attorneys, and other professionals, each in their capacity as such.

122. “Released Claims” means any and all claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action, and liabilities whatsoever in connection with or in any way relating to the Debtors, the Debtors’ Representatives and Related Parties (in their capacity as such), the conduct of the Debtors’ businesses, the Chapter 11 Cases, Exit Facility, the Reorganized Parent Organizational Documents, including without limitation the Stockholders Agreement, Disclosure Statement or the Plan (other than the rights of the Debtors, Committee, Creditor Trust or a creditor holding an Allowed Claim to enforce the obligations under the Confirmation Order and the Plan and the contracts, instruments, releases, and other agreements or documents delivered thereunder), whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, equity, or otherwise, whether for tort, contract, violation of federal or state securities or other law, that are based in whole or part on any act, omission, transaction, event, or other occurrence taking place on or prior to the Effective Date, provided that the Committee and Creditor Trust, as applicable, shall retain the right to object to or otherwise dispute any Claim other than a Claim that is expressly deemed Allowed by the Plan.

123. “Released Parties” means, collectively, the Debtors, the Plan Sponsor Parties, Affiliates of the Plan Sponsor Parties including but not limited to DDAT, Sorapoj Techakraisri, the Committee and each of its members solely in such capacity, and the Finch Parties and the current and former Representatives and Related Parties of each of the foregoing (each in their capacities as such), provided, however, (a) Sorapoj Techakraisri shall not be deemed a Released Party until the Techakraisri Payment is fully and indefeasibly satisfied in full; and (b) none of the Finch Parties shall be deemed a Released Party until the Finch Payment is fully and indefeasibly satisfied in full.

124. “Releasing Parties” means each holder of a Claim or Equity Interest who is entitled to vote to accept or reject the Plan, if (a) such holder votes to accept the Plan, or (b) such holder votes to reject the Plan but affirmatively elects to provide releases by checking the appropriate box on the ballot form. For the avoidance of doubt, unless otherwise specified, the Debtors, their Estates, the Committee, the Creditor Trust and the Finch Parties are not Releasing Parties.

125. “Reorganized Debtor Boards” means the Debtor Boards of Directors, on and after the Effective Date.

126. “Reorganized Debtors” means the Debtors, on and after the Effective Date.

127. “Reorganized Debtor Organizational Documents” means the applicable bylaws, charter documents, certificates of incorporation, certificates of formation, limited liability company operating agreements, stockholder


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agreements and related documents regarding the corporate existence and governance of the Reorganized Debtors, including without limitation the Reorganized Parent Organizational Documents.

128. “Reorganized Parent” means Parent, on and after the Effective Date.

129. “Reorganized Parent Charter” means the certificate of incorporation of Parent to be in effect upon the Effective Date, which shall be included with the Plan Supplement.

130. “Reorganized Parent Organizational Documents” means the Reorganized Parent Charter, the bylaws of Reorganized Parent, and the Stockholders Agreement, each to be in effect upon the Effective Date, and each of which shall be included with the Plan Supplement.

131. “Representatives” means, with regard to any Entity, its officers, managers, directors, current and former employees, advisors, attorneys, professionals, accountants, investment bankers, financial advisors, consultants and agents, each in their capacities as such. For purposes of this definition, the term “manager” shall mean the manager of a board of managers of a limited liability company.

132. “Retained Causes of Action” means all Causes of Action of the Debtors, the Debtors-in-Possession, and/or the Reorganized Debtors, including without limitation the recovery of deposits and/or cash collateral, actions for breach of contract, and Causes of Action against DDJ or any other intellectual property licensees or franchisees of the Debtors, but specifically excludes: (a) Causes of Action that are released, compromised or settled pursuant to Article IX hereof; and (b) the Assigned Causes of Action.

133. “Schedules” means the schedules of assets and liabilities, schedules of executory contracts and statements of financial affairs Filed on May 7-8, 2020, as may be amended.

134. “Secured Claim” means a Claim that is secured (i) by a lien that is valid, perfected and enforceable under the Bankruptcy Code or applicable non-bankruptcy law or by reason of a Final Order; or (ii) as a result of rights of setoff under Section 553 of the Bankruptcy Code, but in any event only to the extent of the value, determined in accordance with Section 506(a) of the Bankruptcy Code, of the holder’s interest in the Estate’s interest in such property or to the extent of the amount subject to such setoff, as the case may be.

135. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

136. “Stockholders Agreement” means the stockholders agreement by and among Reorganized Parent and each of the holders of New Common Shares, to be effective as of the Effective Date, which shall be included in the Plan Supplement.

137. “Subsequent Distribution Date” means the date(s) following the Initial Distribution Date on which the Reorganized Debtors shall make one or more Distribution(s), which date(s) shall be selected by the Reorganized Debtors in their business judgment.

138. “Taxing Authority” means any Governmental Unit responsible for the assessment, accounting and/or collection of tax revenues, including but not limited to the Texas Comptroller of Public Accounts, Revenue Accounting Division.

139. “Techakraisri Financial Statement” means a sworn and truthful personal statement of assets and liabilities of Sorapoj Techakraisri which complies with the requirements of Section IV.F.7 herein.

140. “Techakraisri Initial Payment” means Cash in the amount of $100,000.00 to be deposited into the IOLTA account of Sorapoj Techakraisri’s counsel no later than one (1) day prior to the Confirmation Hearing and paid to the Creditor Trust on the Effective Date.

141. “Techakraisri Payment” means Cash in the amount of $1,000,000 paid by Sorapoj Techakraisri to the Creditor Trust consisting of the Techakraisri Initial Payment, Techakraisri Second Payment, and Techakraisri Third Payment.


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142. “Techakraisri Payment Event of Default” means the failure to timely make any Techakraisri Payment or furnish the Techakraisri Financial Statement.

143. “Techakraisri POCs” means any and all claims filed, scheduled or otherwise asserted by Sorapoj Techakraisri in the Chapter 11 Cases, including the claims denominated as Claim Nos. 220 and 221 on the Court’s Claims Register, and the claim scheduled by the Debtors as Claim No. 215586.

144. “Techakraisri Second Payment” means Cash in the amount of $150,000.00 plus interest accruing from the Effective Date at the federal judgment rate, to be paid to the Creditor Trust on or before the date that is six (6) months after the Effective Date.

145. “Techakraisri Third Payment” means Cash in the amount of $750,000.00 plus interest accruing from the Effective Date at the federal judgment rate, to be paid to the Creditor Trust on or before the date that is one year after the Effective Date.

146. “Third Party Claim” means any GUC Cash Election Claim which is an Allowed Claim filed, scheduled or otherwise held as of the Effective Date by a Person who is not a Plan Sponsor Party, Finch Party, Sorapoj Techakraisri, or a Related Party or Representative of any of the foregoing.

147. “U.S. Trustee” means the United States Trustee for Region 2.

148. “Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code, if any.

149. “Unimpaired” means, with respect to a Claim, Equity Interest, or Class of Claims or Equity Interests, not “impaired” within the meaning of Sections 1123(a)(4) and 1124 of the Bankruptcy Code.

B. Rules of Interpretation

1. For purposes herein: (a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine or neutral gender shall include the masculine, feminine and the neutral gender; (b) any reference herein to a contract, instrument, release, or other agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; (c) any reference herein to an existing document or exhibit having been Filed or to be Filed shall mean that document or exhibit, as it may thereafter be amended, modified or supplemented; (d) unless otherwise specified, all references herein to “Articles” are references to Articles hereof or hereto; (e) the words ‘‘herein,’’ “hereof” and ‘‘hereto’’ refer to the Plan in its entirety rather than to a particular portion of the Plan; (f) captions and headings of Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation hereof; (g) the rules of construction set forth in Section 102 of the Bankruptcy Code shall apply; and (h) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be.

2. The provisions of Fed. R. Bankr. P. 9006(a) shall apply in computing any period of time prescribed or allowed hereby.

3. All references herein to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided.

4. To the extent of any inconsistency between this Plan and the Disclosure Statement filed in connection herewith, the Plan Supplement or any component thereof, or the Debtor Organizational Documents, the Plan shall control.

C. Exhibits

All exhibits to this Plan will be included with the Plan Supplement, which will be Filed in substantially final form with the Bankruptcy Court no later than ten (10) calendar days prior to the deadline to vote to accept or


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reject the Plan. The Plan Supplement shall be available for inspection (i) at the Office of the Clerk of the Bankruptcy Court, or (ii) at http://www.pacer.gov, or (iii) from the Noticing Agent website at https://cases.stretto.com/DeanDeLuca/, or (iv) additionally, interested parties may also obtain a copy of the Plan Supplement (including all exhibits contained therein), once filed, from the Debtors by a written request sent to the following address:

Brown Rudnick LLP 7 Times Sq., 47th Fl. New York, NY 10036 Attn: Alexandra Deering, Paralegal

ARTICLE II.

ADMINISTRATIVE AND PRIORITY CLAIMS

In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, DIP Facility Claims and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims and Interest set forth in Article III.

A. Administrative Claims

Subject to the provisions of Sections 328, 330(a), and 331 of the Bankruptcy Code, the Debtors or the Creditor Trust after the Effective Date, as applicable, shall pay each holder of an Allowed Administrative Claim the full unpaid amount of such Allowed Administrative Claim in Cash: (i) on the Effective Date or as soon as practicable thereafter (or, if not then due, when such Allowed Administrative Claim is due or as soon as practicable thereafter); (ii) if such Claim is Allowed after the Effective Date, on the date such Claim is Allowed or as soon as practicable thereafter (or, if not then due, when such Allowed Administrative Claim is due); (iii) at such time and upon such terms as may be agreed upon by such holder and the Debtors or the Reorganized Debtors, as applicable; or (iv) at such time and upon such terms as set forth in an order of the Bankruptcy Court; provided, however, that the U.S. Trustee shall not be required to file a request for payment of fees and charges assessed against the Estates under 28 U.S.C. §1930 before the applicable Administrative Bar Date.

B. Professional Compensation Claims

1. The Bankruptcy Court shall fix in the Confirmation Order a deadline for filing all Professional Compensation Claims with respect to services provided prior to the Effective Date, which deadline may be extended for one or more Professionals by agreement of the Reorganized Debtors. Any Professional Compensation Claim not Filed by the Professional Claims Bar Date shall be deemed disallowed under this Plan and shall be forever barred against the Estates, the Reorganized Debtors, the Creditor Trust or any other property held or maintained by the Reorganized Debtors or the Creditor Trust, and the holder thereof shall be enjoined from commencing or continuing any action, employment of process or act to collect, offset, recoup or recover such Claim. Subject to the provisions of Sections 328, 330(a), and 331 of the Bankruptcy Code, the Debtors or the Creditor Trust after the Effective Date, as applicable, shall pay each holder of an Allowed Professional Compensation Claim the full unpaid amount of such Allowed Professional Compensation Claim in Cash no later than five (5) Business Days after the date that such Claim is Allowed by order entered by the Bankruptcy Court, notwithstanding any pending appeal or request for stay or reconsideration of such order.

2. From and after the Effective Date, (a) the Reorganized Debtors shall, in the ordinary course of business and without any further notice or application to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable legal, professional, or other fees and expenses related to the implementation of the Plan incurred on or after the Effective Date by the Reorganized Debtors, provided that, such fees and expenses shall not be paid or payable from the Administrative and Priority Claims Reserve or the GUC Available Cash; and (b) the Creditor Trust shall, without any further notice or application to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable legal, professional, or other fees and expenses related to the implementation of the Plan incurred on or after the Effective Date by the Creditor Trust. Upon the Effective Date, any requirement that Professionals comply with sections 327 through 331, 363, and 1103 of the Bankruptcy Code and Local Bankruptcy Rules, or any order of the Bankruptcy Court in seeking retention or compensation for services rendered after such


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date shall terminate, and the Reorganized Debtors and Creditor Trust may employ and pay any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court in accordance with the terms of this Article II.B.2.

C. DIP Facility Claims

Notwithstanding anything to the contrary herein, in full and final satisfaction, settlement, release and discharge of and in exchange for release of the DIP Facility Claim, on the Effective Date, the DIP Facility Claim (which shall, for the avoidance of doubt, include all interest, fees and reimbursement obligations arising under the DIP Facility) shall (1) be paid indefeasibly in Cash from the Exit Facility in the full amount due thereon, less $538,658.00, and (2) receive the New DIP Facility Distribution. For the avoidance of doubt, the DIP Facility Claim, including the New DIP Facility Distribution, shall not be paid out of the Adminsitrative and Priority Claim Reserve or have any recourse against the Creditor Trust.

D. Priority Tax Claims

Except to the extent that each Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in exchange for full and final satisfaction, settlement, release, and discharge of each Allowed Priority Tax Claim, each Holder of an Allowed Priority Tax Claim due and payable on or prior to the Effective Date shall receive, as soon as reasonably practicable after the Effective Date, on account of such Claim: (1) Cash in an amount equal to the amount of such Allowed Priority Tax Claim; (2) Cash in an amount agreed to by the applicable Debtors or Creditor Trust, as applicable, and such Holder; provided, however, that such parties may further agree for the payment of such Allowed Priority Tax Claim at a later date; or (3) at the option of the Debtors or Creditor Trust, as applicable, Cash in an aggregate amount of such Allowed Priority Claim payable in installment payments over a period not more than five years after the Petition Date, pursuant to section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority Tax Claim is not due and owing on or before the Effective Date, such Claim shall be paid by the Reorganized Debtors in full in Cash in accordance with the terms of any agreement between the Debtors and such Holder, or as may be due and payable under applicable non-bankruptcy law or in the ordinary course of business. To the extent the Debtors or Reorganized Debtors receive any refund from a Taxing Authority relating to a period preceeding the Effective Date, such refund shall be applied against the outstanding Priority Tax Claims, if any, filed by the Taxing Authority from which such refund is due, and any remaining refund from a Taxing Authority shall be transferred to the Reorganized Debtors.

E. United States Trustee Statutory Fees

The Debtors and the Reorganized Debtors, as applicable, shall pay all United States Trustee quarterly fees under 28 U.S.C § 1930(a)(6), plus any interest due and payable under 31 U.S.C. § 3717 on all disbursements, including Plan payments and disbursements in and outside the ordinary course of the Debtors’ or Reorganized Debtors’ business, for each quarter (including any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever occurs first.

ARTICLE III.

CLASSIFICATION AND TREATMENT OF CLAIMS AND EQUITY INTERESTS

A. Summary

1. In accordance with Section 1123(a)(1) of the Bankruptcy Code, the Debtors have not classified Administrative Claims, Professional Compensation Claims, DIP Facility Claims, United States Trustee fees and Priority Tax Claims, as described in Article II. Accordingly, except for such Claims, all Claims against and Equity Interests in a particular Debtor are placed in Classes as set forth below.

2. This Plan constitutes a separate chapter 11 plan of reorganization for each Debtor. Except for the Claims addressed in Article II above (or as otherwise set forth herein), all Claims against and Interests in a particular Debtor are placed in Classes for each of the Debtors.


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3. The following table classifies Claims against and Equity Interests in each Debtor for all purposes, including voting, confirmation and Distribution pursuant hereto and pursuant to Sections 1122 and 1123(a)(1) of the Bankruptcy Code. The Plan deems a Claim or Equity Interest to be classified in a particular Class only to the extent that the Claim or Equity Interest qualifies within the description of that Class and shall be deemed classified in a different Class to the extent that any remainder of such Claim or Equity Interest qualifies within the description of such different Class. A Claim or Equity Interest is in a particular Class only to the extent that any such Claim or Equity Interest is Allowed in that Class and has not been paid or otherwise settled prior to the Effective Date.

Class Claim Status Voting Rights

1 Bank Prepetition Secured Claim Impaired Entitled to Vote 2 Other Secured Claims Unimpaired Deemed to Accept 3 Priority Non-Tax Claims Unimpaired Deemed to Accept 4 General Unsecured Claims Impaired Entitled to Vote 5 Intercompany Claims Impaired Deemed to Accept 6 Equity Interests in the Parent Impaired Deemed to Reject 7 Intercompany Interests Unimpaired Deemed to Accept

B. Classification and Treatment of Claims and Equity Interests

1. Bank Prepetition Secured Claims (Class 1)

(a) Classification: Class 1 consists of the Bank Prepetition Secured Claim.

(b) Treatment: In exchange for full and final satisfaction, settlement, release, and discharge of the Bank Prepetition Secured Claim, the Bank shall receive the New Loan Distribution.

(c) Voting: Class 1 is Impaired, and the Bank is entitled to vote to accept or reject the Plan on account of its Class One Claim.

2. Other Secured Claims (Class 2)

(a) Classification: Class 2 consists of Other Secured Claims.

(b) Treatment: Unless otherwise mutually agreed upon by the holder of an Allowed Other Secured Claim and the Debtors or Creditor Trust, as applicable, on the later of the Effective Date and the date such Other Secured Claim becomes Allowed, or as soon thereafter as is practicable, the Creditor Trust shall, at the Creditor Trust’s sole and exclusive election and to the extent applicable, in full and final satisfaction of such Other Secured Claim, do one of the following:

(i) Deliver to the holder of such Claim the collateral securing such Allowed Other Secured Claim;

(ii) Pay to the holder of such Claim Cash in an amount equal to the value of such collateral; or

(iii) Provide such other treatment that renders such Allowed Other Secured Claim Unimpaired.

(c) Voting: Class 2 is Unimpaired, and each holder of an Other Secured Claim is conclusively deemed to have accepted the Plan and, therefore, is not entitled to vote on the Plan.

3. Priority Non-Tax Claims (Class 3)

(a) Classification: Class 3 consists of Priority Non-Tax Claims.


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(b) Treatment: Unless otherwise mutually agreed upon by the holder of an Allowed Priority Non-Tax Claim and the Debtors or Creditor Trust, as applicable, on the later of the Effective Date and the date such Allowed Priority Non-Tax Claim becomes Allowed, or as soon thereafter as is practicable but in no event later than sixty (60) days after the later of the Effective Date or the date such Allowed Priority Non-Tax Claim becomes Allowed, the Creditor Trust shall pay to each holder of an Allowed Priority Non-Tax Claim the full amount of such Allowed Priority Non-Tax Claim in Cash in full and final satisfaction of such Allowed Priority Non-Tax Claim.

(c) Voting: Class 3 is Unimpaired, and each holder of a Priority Non-Tax Claim is conclusively deemed to have accepted the Plan and, therefore, is not entitled to vote on the Plan.

4. General Unsecured Claims (Class 4)

(a) Classification: Class 4 consists of General Unsecured Claims.

(b) Treatment: Subject to the terms herein and Article IV.F, except to the extent that a Holder of an Allowed General Unsecured Claim agrees to less favorable treatment, in full satisfaction, settlement and release of and in exchange for all such Allowed Claims, Holders of Allowed General Unsecured Claims shall receive the following treatment:

(i) Each Holder of an Allowed General Unsecured Claim shall be entitled to elect to receive either of the following, provided that any Holder of a General Unsecured Claim that (x) is not an Eligible Holder on the NCS Election Record Date or (y) does not duly comply with the NCS Election Procedures shall receive treatment under paragraph (1) below:

such Holder’s Pro Rata Share of the beneficial interest in the Creditor Trust and as beneficiary of the Creditor Trust shall receive, on a distribution date, their Pro Rata Share of net Cash derived from the Creditor Trust Assets available for Distribution on each such distribution date as provided under the Plan and Creditor Trust Agreement.

Subject to the NCS Rights and provided that such Holder of an Allowed General Unsecured Claim has complied with the NCS Election Procedures indicating it is an Eligible Holder on the NCS Election Record Date intending to receive treatment pursuant to this paragraph, such Eligible Holder’s Ratable Proportion, as of the NCS Election Record Date, of New Common Shares.

(ii) Subject to the terms herein and Article IX.B, on the Effective Date and as of the Effective Date, (i) each Holder of an Allowed General Unsecured Claim that is a Releasing Party and (ii) the Reorganized Debtors shall forever mutually release, waive, and discharge any and all claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action, and liabilities whatsoever as they may exist (other than the rights of the Debtors or a creditor holding an Allowed Claim to (a) enforce the obligations under the Confirmation Order and the Plan and the contracts, instruments, releases, and other agreements or documents delivered thereunder, and/or (b) object to any claim filed by any party against the Debtors or their estates), whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter arising, in law, equity, or otherwise, whether for tort, contract, violation of federal or state securities or other law, that are based in whole or part on any act, omission, transaction, event, or other occurrence taking place on or prior to the Effective Date.

(c) Voting: Class 4 is Impaired, and holders of General Unsecured Claims are entitled to vote to accept or reject the Plan.


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5. Intercompany Claims (Class 5)

(a) Classification: Class 5 consists of Intercompany Claims.

(b) Treatment: Holders of Intercompany Claims shall not receive any distribution on account of such Intercompany Claims. On or after the Effective Date, the Reorganized Debtors may reconcile such Intercompany Claims as may be advisable in order to avoid the incurrence of any past, present, or future tax or similar liabilities by such Reorganized Debtor.

(c) Voting: Class 5 is Impaired. However, because Holders of Claims in Class 5 are Affiliates of the Debtors, the Holders of Claims in Class 5 shall be conclusively deemed to have accepted the Plan.

6. Equity Interests in the Parent (Class 6)

(a) Classification: Class 6 consists of Equity Interests in the Parent.

(b) Treatment: Holders of Equity Interests in the Parent shall not receive any distribution on account of such Equity Interests. On the Effective Date, all Equity Interests in the Parent shall be discharged cancelled, released, and extinguished.

(c) Voting: Class 6 is Impaired and Holders of Class 6 Equity Interests in the Parent are conclusively deemed to have rejected the Plan pursuant to Section 1126(g) of the Bankruptcy Code. Therefore, Holders of Equity Interests in the Parent are not entitled to vote to accept or reject the Plan.

7. Intercompany Interests

(a) Classification: Class 7 consists of Intercompany Interests.

(b) Treatment: Intercompany Interests shall be reinstated and the legal, equitable and contractual rights to which Holders of Intercompany Interests are entitled shall remain unaltered to the extent necessary to implement the Plan.

(c) Voting: Class 7 is Unimpaired and Holders of Class 7 Intercompany Interests are conclusively presumed to have accepted the Plan pursuant to Section 1126(f) of the Bankruptcy Code. Therefore, Holders of Intercompany Interests are not entitled to vote to accept or reject the Plan.

C. Elimination of Vacant Classes

Any Class of Claims or Equity Interests that does not contain, as of the Confirmation Date, a Holder of an Allowed Claim or Equity Interest, or a Holder of a Claim temporarily allowed under Bankruptcy Rule 3018, shall be deemed deleted from the Plan for all purposes, including for purposes of determining acceptance of the Plan by such Class under Section 1129(a)(8) of the Bankruptcy Code.

D. Allocation of Distributions Between Principal and Interest

For Distributions in respect of Allowed General Unsecured Claims, to the extent that any such Claim entitled to a Distribution under the Plan is comprised of indebtedness and accrued but unpaid interest thereon, such Distribution shall be allocated to the principal amount (as determined for federal income tax purposes) of the Claim first, and then to accrued but unpaid interest.


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E. Special Provision Governing Unimpaired Claims

Except as otherwise provided in the Plan, nothing under the Plan shall affect the rights of the Creditor Trust and/or Reorganized Debtors in respect of any Unimpaired Claim, including, without limitation, all rights in respect of legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claim.

F. Non-Consensual Confirmation

The Debtors reserve the right to seek confirmation of the Plan under Section 1129(b) of the Bankruptcy Code. To the extent that any Class votes to reject the Plan, the Debtors further reserve the right to modify the Plan in accordance with Article XI.A.

ARTICLE IV.

MEANS FOR IMPLEMENTATION OF THE PLAN

A. General Settlement of Claims

As discussed further in the Disclosure Statement and as otherwise provided herein, pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, upon the Effective Date, the provisions of the Plan shall constitute a good faith compromise and settlement of all Claims and Equity Interests and controversies resolved pursuant to the Plan. Distributions made to Holders of Allowed Claims in any Class are intended to be final.

In accordance with Bankruptcy Rule 9019, the Plan constitutes a good faith compromise and settlement among the Debtors, the Plan Sponsor Parties, Sorapoj Techakraisri, the Finch Parties, and the Committee regarding the treatment of the General Unsecured Claims under the Plan, and reflects and implements such compromise and settlement. Such compromise and settlement is made in exchange for consideration and is in the best interests of the Debtors, the Estates, the Bank, and the Holders of General Unsecured Claims, is within the reasonable range of possible litigation outcomes, is fair, equitable and reasonable, and is an essential element of the resolution of these Chapter 11 Cases.

B. Restructuring Transactions

On the Effective Date or as soon as reasonably practicable thereafter, the Reorganized Debtors and Creditor Trust may take all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by or necessary to effectuate the Plan, including the execution, filing, and/or performance upon all documents filed with the Plan Supplement, and further including but not limited to: (1) the execution and delivery of appropriate agreements or other documents of merger, consolidation, or reorganization containing terms that are consistent with the terms of the Plan and that satisfy the requirements of applicable law, including but not limited to Exit Facility Documents, any documentation related to the Creditor Trust Agreement; (2) the execution and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any property, right, liability, duty, or obligation on terms consistent with the terms of the Plan; (3) the filing of appropriate certificates of incorporation, merger, or consolidation with the appropriate governmental authorities pursuant to applicable law; (4) the deemed execution of the Stockholders Agreement by all parties thereto; (5) the issuance of New Common Shares; and (5) all other actions that the Reorganized Debtors and Creditor Trust, as applicable, determine are necessary or appropriate.

C. The Reorganized Debtors

1. Except as otherwise provided in the Plan, each Debtor shall continue to exist after the Effective Date as a separate corporate Entity, limited liability company, partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership, or other form, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in effect prior to the Effective Date, except to the extent such certificate of incorporation and bylaws (or other formation documents) are amended by the Plan or otherwise, and to the extent such documents are amended, such documents are deemed to be pursuant to the Plan and require no further action or approval.


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2. Except as otherwise provided in the Plan or any agreement, instrument, or other document incorporated herein, on the Effective Date, all property in each Estate, all Causes of Action, and any property acquired by any of the Debtors pursuant to the Plan shall vest in each respective Reorganized Debtors, free and clear of all Liens, Claims, charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property and compromise or settle any Retained Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

3. At such times and on such terms as reasonably convenient to the Creditor Trust and the Reorganized Debtors, at the expense of the Creditor Trust, the Reorganized Debtors shall provide to the Creditor Trust timely access to the Debtors’ books and records, and shall otherwise cooperate with the Creditor Trust in fulfillment of the Creditor Trust’s duties to review, reconcile, compromise, settle, or object to Claims, as described further herein.

4. The Reorganized Debtors shall administer any of the Debtor’s rights, responsibilities, and obligations with respect to employment agreements and employee-related benefits plans, to the extent not terminated by the Debtors prior to the Effective Date, and including the Debtors’ and the Reorganized Debtors’ rights to amend, modify, or terminate agreements and benefits at any time under all applicable law; provided, however, that any Claims arising from the Debtors’ terminations of employees and/or benefit plans shall be subject to resolution and distribution in accordance with the terms of the Plan.

5. The Plan shall be considered a motion pursuant to Sections 105, 363, 365, and 1141 of the Bankruptcy Code for such relief, and the Confirmation Order shall be considered an order granting such relief. As of the Effective Date, all assets vested in the Reorganized Debtors shall be free and clear of all Liens, Claims, and Interests, except as otherwise specifically provided in the Plan or in the Confirmation Order. The Reorganized Debtors shall be responsible for preparing and filing all applicable tax returns for the Debtors and Reorganized Debtors, and paying all taxes (including any withholding taxes) arising from and after the Petition Date.

6. All Debtor Privileges shall automatically vest in the Reorganized Debtors and their Representatives, including but not limited to any member of the Reorganized Debtor Boards and any Representative thereof, and the same shall not operate as a waiver or other impairment of other privileges possessed or retained by the Debtors, provided that, the Creditor Trustee shall (i) be the beneficiary of Debtor Privileges and (ii) be entitled to assert all Debtor Privileges, in either case solely to the extent such Debtor Privileges relate to the Assigned Causes of Action or objections to Proofs of Claim. Further, to the extent necessary for the Creditor Trustee to act in accordance with the terms of the Plan and Creditor Trust Agreement, Debtor Privileges shall be extended to the Creditor Trustee, or shall remain with the Reorganized Debtors, as applicable, without waiver or release. No Debtor Privilege shall be waived by disclosure to the Creditor Trustee of the Debtors’ documents, information or communications subject to attorney-client privileges, work product protections or immunities or protections from disclosure held by the Debtor. For the avoidance of doubt, the Creditor Trustee shall not have any rights or ability to waive any privilege of the Reorganized Debtors, either intentionally or inadvertently. Notwithstanding the foregoing, under no circumstances shall the Creditor Trustee be the beneficiary of, or be entitled to assert, any Debtor Privileges in connection with any claims against Sorapoj Techakraisri, the Finch Parties, or the Debtors or Reorganized Debtors or their respective Representatives.

7. As of the Effective Date, the Reorganized Parent Organizational Documents shall provide for the indemnification, defense, reimbursement, exculpation, and/or limitation of liability of, and advancement of fees and expenses to, directors and officers who served as directors or officers of Parent on or after the Effective Date at least to the same extent as the organizational documents of Parent on the Petition Date, against any claims or causes of action whether direct or derivative, liquidated or unliquidated, fixed, or contingent, disputed or undisputed, matured or unmatured, known or unknown, foreseen or unforeseen, asserted or unasserted, and Reorganized Parent shall not amend and/or restate the Reorganized Parent Organizational Documents before or after the Petition Date to terminate or materially adversely affect any of Reorganized Parent’s obligations, or such directors’ or officers’ rights, in this respect.

8. From and after the Effective Date, the Reorganized Debtor Boards and any other duly appointed officers of the Reorganized Debtors shall have the fiduciary duties imposed under applicable law, subject to the provisions of the Plan and all Reorganized Debtor Organizational Documents. The powers of the Reorganized Debtors shall include any and all powers previously held by the Debtors or their Estates, as limited by the terms of


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the Plan (including without limitation the Exit Facility, New DIP Facility Distribution, the New Loan Distribution and Stockholders Agreement) and including but not limited to authority to implement the Plan, including (a) establishing and maintaining bank accounts in the name of the Reorganized Debtors, (b) employing, retaining, terminating, or replacing Professionals to represent them with respect to their responsibilities or otherwise effectuating the Plan to the extent necessary, (c) paying all reasonable costs, fees, expenses, debts, charges, employee wages, and liabilities of the Reorganized Debtors, (d) maintaining, transferring, or terminating the Reorganized Debtors’ insurance policies, as deemed necessary by the Reorganized Debtors, in accordance with the terms of the Plan, (e) administering and paying taxes of the Reorganized Debtors, including preparing and filing tax returns to the extent required by the Plan, (f) representing the interests of the Reorganized Debtors before any taxing authority in all matters arising from and after the Petition Date, including any action, suit, proceeding or audit, and (k) exercising such other powers as may be vested in them pursuant to Order of the Bankruptcy Court or pursuant to the Plan, or as they reasonably deems to be necessary and proper to carry out the provisions of the Plan. The powers, authority, responsibilities, and duties of the Reorganized Debtors will be governed by the Plan and the Confirmation Order. For the avoidance of doubt, the Reorganized Debtors shall not be responsible for employing, retaining, terminating, or replacing any Professionals for the Creditor Trust, or for paying any costs, fees, expenses, debts, charges, employee wages, or other liabilities of the Creditor Trust.

D. Creditor Trust

1. Appointments.

(a) On and after the Effective Date, the initial Creditor Trustee shall become and serve as Creditor Trustee. The Creditor Trustee will receive compensation and reimbursement of reasonable expenses, as shall be specifically set forth in the Creditor Trust Agreement. The Creditor Trustee shall not be required to file a fee application to receive compensation.

(b) The Creditor Trustee will be a disinterested Person designated by the Committee in the Plan Supplement.

(c) The Creditor Trustee shall carry out the duties as set forth in this Article IV.D. and in the Creditor Trust Agreement. Pursuant to Bankruptcy Code § 1123(b)(3), the Creditor Trustee shall be deemed the appointed representative to, and may pursue, litigate, and compromise and settle any such rights, claims, and Assigned Causes of Action in accordance with the best interests of and for the benefit of the Creditor Trust’s Beneficiaries.

(d) The Creditor Trustee shall have the power and authority to perform the acts described in the Creditor Trust Agreement (subject to approval by the Court where applicable), in addition to any powers granted by law or conferred to it by any other provision of the Plan, including without limitation any set forth herein, provided however, that enumeration of the following powers shall not be considered in any way to limit or control the power and authority of the Creditor Trustee to act as specifically authorized by any other provision of this Plan, the Creditor Trust Agreement, and/or any applicable law, and to act in such manner as the Creditor Trustee may deem necessary or appropriate to take any act deemed appropriate by the Creditor Trustee, including, without limitation, to discharge all obligations assumed by the Creditor Trustee or provided herein and to conserve and protect the Creditor Trust or to confer on the creditors the benefits intended to be conferred upon them by this Plan. The Creditor Trustee shall have the power and authority without further approval by the Court to liquidate the Creditor Trust Assets, to hire and pay professional fees and expenses of counsel and other advisors, to prosecute and settle objections to Disputed Claims, to prosecute and settle any Estate Claims, and otherwise take any action as shall be necessary to administer the cases and effect the closing of the cases, including, without limitation, as follows: (a) the power to invest funds, in accordance with section 345 of the Bankruptcy Code, and withdraw, make Distributions and pay taxes and other obligations owed by the Creditor Trust from funds held by the Creditor Trustee in accordance with this Plan and Creditor Trust Agreement;


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(b) the power to engage and compensate, without prior Bankruptcy Court order or approval, employees and professionals to assist the Creditor Trustee with respect to his or her responsibilities; (c) the power to pursue, prosecute, resolve and compromise and settle any Assigned Causes of Action on behalf of the Creditor Trust without prior Bankruptcy Court approval but in accordance with the Creditor Trust Agreement; (d) the power to object to Claims, including, without limitation, the power to subordinate and recharacterize Claims by objection, motion, or adversary proceeding; and (e) such other powers as may be vested in or assumed by the Creditor Trustee pursuant to this Plan, the Creditor Trust Agreement, Bankruptcy Court order, or as may be necessary and proper to carry out the provisions of this Plan. Except as expressly set forth in this Plan and in the Creditor Trust Agreement, the Creditor Trustee, on behalf of the Creditor Trust, shall have absolute discretion to pursue or not to pursue any Assigned Cause of Action as it determines is in the best interests of the Creditor Trust’s Beneficiaries and consistent with the purposes of the Creditor Trust, and shall have no liability for the outcome of his or her decision, other than those decisions constituting gross negligence or willful misconduct. The Creditor Trustee may incur any reasonable and necessary expenses in liquidating and converting the Creditor Trust Assets to Cash. Subject to the other terms and provisions of this Plan, the Creditor Trustee shall be granted standing, authority, power and right to assert, prosecute and/or settle the Assigned Causes of Action based upon its powers as a Bankruptcy Court-appointed representative of the Debtors’ Estates with the same or similar abilities possessed by insolvency trustees, receivers, examiners, conservators, liquidators, rehabilitators or similar officials.

(e) In the event that the Creditor Trustee resigns, is removed, terminated or otherwise unable to serve as the Creditor Trustee, then a successor shall be appointed as set forth in the Creditor Trust Agreement. Any successor Creditor Trustee appointed shall be bound by and comply with the terms of the Plan, the Confirmation Order and the Creditor Trust Agreement

2. Creation and Governance of the Creditor Trust.

(a) On the Effective Date, the Creditor Trustee shall execute the Creditor Trust Agreement and shall take any other steps necessary to establish the Creditor Trust in accordance with the Plan and the beneficial interests therein.

(b) Upon establishment of the Creditor Trust, all Creditor Trust Assets shall be deemed transferred to the Creditor Trust on the Effective Date without any further action of any of the Debtors or any employees, officers, directors, members, partners, shareholders, agents, advisors, or representatives of the Debtors. The Creditor Trustee may elect for the Creditor Trust to be treated as a partnership or a corporation or other entity for tax purposes only, if the Creditor Trustee may determine, in his or her reasonable discretion, that such election would be in the best interests of the Beneficiaries of the Creditor Trust

(c) For federal income tax purposes, the transfer of the assets to the Creditor Trust will be treated as a taxable sale or other disposition of assets to the Creditor Trust Beneficiaries in exchange for their Claims in the Chapter 11 Cases. A Holder of a Claim should in most circumstances recognize gain or loss equal to the difference between the “amount realized” received by such Holder in exchange for its Claim and such Holder’s adjusted tax basis in the claim. The “amount realized” is equal to the sum of the cash and the fair market value of any other consideration received in such exchange. The tax basis of a Holder in a Claim will generally be equal to the holder’s cost therefor. To the extent applicable, the character of any recognized gain or loss (that is, ordinary income, or short-term or long-term capital gain or loss) will depend upon the status of the Holder, the nature of the claim in the Holder’s hands, the purposes and circumstances of the claim’s acquisition, the Holder’s holding period of the claim, and the extent to which the holder previously claimed a deduction for the worthlessness of all or a portion of the claim.


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The transfer of the Creditor Trust Assets to the Creditor Trust shall be deemed a transfer to the Creditor Trust Beneficiaries by the Debtors (as discussed above), followed by a deemed transfer by such Creditor Trust Beneficiaries to the Creditor Trust. The Debtors, the Creditor Trust Beneficiaries, and the Creditor Trust will consistently report the valuation of the non-cash assets transferred to the Creditor Trust; provided that, the Reorganized Debtors shall perform a valuation of the non-cash assets and the Creditor Trust must provide its written consent to such valuation, which consent shall not be unreasonably withheld, delayed or conditioned. Such consistent valuations and revised reporting will be used for all federal income tax purposes.

A Holder of a Claim that is not a U.S. person for federal income tax purposes generally will not be subject to U.S. federal income tax with respect to property (including money) received in exchange for the claims as described above in this paragraph, unless (1) such Holder is engaged in a trade or business in the United States to which income, gain, or loss from the exchange is “effectively connected” for United States federal income tax purposes, or (ii) if such Holder is an individual, such Holder is present in the United States for 183 days or more during the taxable year of the exchange and certain other requirements are met, or is present in the United States for a certain period based on a three-year look-back period.

For federal income tax purposes, the Creditor Trust Beneficiaries shall be treated as the grantors of the Creditor Trust and deemed to be the owners of the assets of the Creditor Trust. Income deductions, gain, or loss from the Creditor Trust shall be reported to the Beneficiaries of the Creditor Trust in conjunction with the filing of the Creditor Trust’s income tax returns. Each Creditor Trust Beneficiary shall report income, deductions, gain, or loss on such Creditor Trust Beneficiary’s income tax returns. Notwithstanding the discussion in the above paragraphs, the Creditor Trustee may timely elect to treat any assets allocable to, or retained on account of, Disputed Claims (the “Elected Disputed Claim Reserve”) under Treasury Regulations Section 1.468B-9(c)(2)(ii) to treat the Elected Disputed Claim Reserve as a “disputed ownership fund.” Any funds so treated would not be treated as transferred to any Creditor Trust Beneficiary and thus would not be part of the “amount realized” discussed above. In addition, such fund would be treated as a separate taxable entity, so that such entity would pay income tax on any income such fund generates and such income (or loss) would not, therefore, be reported to the Creditor Trust Beneficiaries. All distributions from such fund will be treated as received by the holders in respect of their claims as if distributed by the Debtors. All parties, including Creditor Trust Beneficiaries, will be required to report for income tax purposes consistently with the foregoing.

(d) The Creditor Trust shall be governed by the Creditor Trust Agreement and administered by the Creditor Trustee. The powers, rights, and responsibilities of the Creditor Trustee shall be specified in the Creditor Trust Agreement.

3. Vesting of Creditor Trust Assets. On the Effective Date, the Creditor Trust will be automatically be vested with all of the Debtors’ and the Estates’ respective rights, title, and interest in and to all Creditor Trust Assets, free and clear of all Claims, Liens, encumbrances, charges, and other interests. Upon completion of the transfer of the Creditor Trust Assets to the Creditor Trust, except as otherwise set forth in the Plan or Confirmation Order, the Debtors and Reorganized Debtors will have no further interest in, or with respect to, the Creditor Trust Assets, or the Creditor Trust. Likewise, upon completion of such transfer and subject to such exceptions as may be set forth in the Plan or Confirmation Order, the Creditor Trust shall have no rights, title, or interest in or to any property of the Debtors or the Estates other than the Creditor Trust Assets. The Creditor Trust shall hold and distribute the Creditor Trust Assets in accordance with the provisions of the Plan and the Creditor Trust Agreement.

4. Purpose of the Creditor Trust. The Creditor Trust shall be established for the purpose of liquidating the Creditor Trust Assets, prosecuting any Assigned Causes of Action to maximize recoveries for the benefit of the Creditor Trust Beneficiaries, and making Distributions in accordance with this Plan to the Creditor Trust Beneficiaries, with no objective to continue or engage in the conduct of a trade or business in accordance with Treas.


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Reg. § 301.7701-4(d). The Creditor Trust is intended to qualify as a “grantor trust” for federal income tax purposes consistent with Internal Revenue Service Revenue Procedure 94-45, 1994-2 C.B. 684, and, to the extent permitted by applicable law, for state and local income tax purposes, with the Creditor Trust’s Beneficiaries treated as grantors and owners of the trust.

5. Authority. The Creditor Trustee shall have the authority and right on behalf of the Debtors and the Estates and without the need for Bankruptcy Court approval (in each case, unless otherwise provided in the Plan) to carry out and implement all applicable provisions of the Plan, including to:

(a) review, reconcile, compromise, settle, seek to subordinate, or object to Claims, whether filed or scheduled (and regardless of whether they were scheduled as undisputed, noncontingent or liquidated), and resolve such objections as set forth in the Plan, free of any restrictions of the Bankruptcy Code or the Bankruptcy Rules;

(b) calculate and make interim and final Distributions under the Plan;

(c) calculate and establish reserves for Disputed Administrative Claims, Disputed Professional Compensation Claims, Disputed Priority Claims, and Disputed GUC Cash Election Claims under and in accordance with the Plan and Creditor Trust Agreement;

(d) negotiate, restructure, and discharge obligations relating to the Techakraisri Payment and the Finch Payment;

(e) retain, compensate, and employ professionals and other Persons to represent the Creditor Trustee with respect to and in connection with its rights and responsibilities;

(f) establish, maintain, and administer documents and accounts as appropriate, which shall be segregated to the extent appropriate in accordance with the Plan;

(g) maintain, conserve, collect, settle, manage, invest, enforce and protect the Creditor Trust Assets, including all rights and remedies thereunder, arising therefrom or associated therewith;

(h) sell, liquidate, transfer, assign, distribute, abandon, or otherwise dispose of the Creditor Trust Assets or any part thereof or interest therein upon such terms as the Creditor Trustee determines to be necessary, appropriate, or desirable;

(i) negotiate, incur, and pay the expenses of the Creditor Trust;

(j) prepare and file any and all tax and informational returns, reports, statements, returns, and other documents or disclosures relating to the Debtors that are required under the Plan, by any governmental unit, or by applicable law;

(k) compile and maintain the official claims register, including for purposes of making initial and subsequent Distributions under the Plan;

(l) request and obtain access to the books and records of the Debtors;

(m) destroy records of the Creditor Trust;

(n) evaluate, file, litigate, settle, or otherwise pursue any of the Assigned Causes of Action;

(o) wind up the affairs of the Creditor Trust and dissolve the Creditor Trust under applicable law;

(p) subject to Art. IV.F.2 and IV.N hereof, close these Chapter 11 Cases;


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(q) comply with the Plan, exercise the Creditor Trustee’s rights, and perform the Creditor Trustee’s obligations; and

(r) exercise such other powers as deemed by the Creditor Trustee to be necessary and proper to implement the Plan.

6. Trust Expenses. The Creditor Trustee may, in the ordinary course of business and without the necessity for any application to, or approval of, the Bankruptcy Court, pay any accrued but unpaid actual and necessary fees, costs, expenses and obligations incurred by or owed to the Creditor Trustee and his or her agents, employees, attorneys, advisors and other professionals in administering this Plan and the Creditor Trust, including, without limitation, reasonable compensation for services rendered, and reimbursement for actual and necessary expenses incurred by the Creditor Trustee and his or her agents, employees and professionals after the Effective Date through and including the date upon which the Bankruptcy Court enters a final decree closing the Chapter 11 Cases. All such fees, costs, expenses and obligations shall be charged against and paid from the Creditor Trust Assets.

7. Support for Plan and Related Transactions. The Creditor Trust, and the Committee prior to the Effective Date, shall support the Plan and all transactions contemplated thereunder.

8. Control Provision. To the extent there is any inconsistency between the Plan, as it relates to the Creditor Trust, and the Creditor Trust Agreement, the Plan shall control.

E. Reserved.

F. Reorganization Transactions and Funding of the Reorganized Debtors and Creditor Trust

1. Pace Capital Contribution. On the day prior to the Effective Date, in their capacities as direct and indirect shareholders of the Debtors, Pace Development and Pace Food shall contribute to Parent as a capital contribution fifty percent (50%) of the Pace Obligations, provided that Pace Development and Pace Food may elect, in their sole discretion, to contribute such Pace Obligations in any combination as to any Pace Obligations owed to Pace Development and/or Pace Food.

2. Effective Date Transactions

On the Effective Date, the following actions and transfers shall occur:

(a) Subject to the preceding section IV.F.1, the General Unsecured Claims held by each of the Plan Sponsor Parties, and the Class 1 Claim of the Bank, are deemed Allowed and Pace Development, Pace Food, and the Bank are deemed Eligible Holders. The Plan Sponsor Parties shall waive all interests in the GUC Available Cash and all treatment pursuant to Article III.B.4(b)(i)(1) hereof, including the right to become a Creditor Trust Beneficiary in respect of any Claims allowed hereby;

(b) Reorganized Parent shall issue the New Common Shares in the manner and for the consideration set forth herein, to all Eligible Holders that have elected treatment pursuant to Article III.B.4(b)(i)(2) hereof, and Reorganized Parent and such holders of New Common Shares shall be deemed to have executed the Stockholders Agreement;

(c) The Reorganized Debtors shall enter into the Exit Facility, the terms of which will be set forth in the Exit Facility Documents;

(d) The Reorganized Debtors shall enter into the Creditor Trust Agreement.

(e) The Reorganized Debtors and Creditor Trust, as applicable, shall establish and fund the Administrative and Priority Claims Reserve from the proceeds of the Exit Facility and the Creditor Trust shall have sole authority to maintain and make Distributions from the Administrative and Priority Claims Reserve;


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(f) The Techakraisri Initial Payment shall be made to the Creditor Trust;

(g) The Finch Payment shall be made to the Creditor Trust;

(h) Both (a) the Debtors and their Estates and the Reorganized Debtors and (b) the Releasing Parties shall be deemed to forever release, waive, and discharge each of the Plan Sponsor Parties from the Plan Sponsor Released Claims without further action.

(i) If, and only if, the Finch Payment is timely, completely, and indefeasibly made on or before the Effective Date, the Debtors and their Estates and the Reorganized Debtors shall be deemed to forever release, waive, and discharge the Finch Parties and their Representatives of any and all claims held by the Debtors’ estates against any of them. For the avoidance of doubt, the failure to make the Finch Payment on the Effective Date shall immediately trigger the Creditor Trust’s rights to pursue any and all claims of the Debtors or the Debtors’ Estates against the Finch Parties.

(j) Following completion of the foregoing, the Reorganized Debtors shall have the right, but not the obligation, to request closure of the Chapter 11 Cases, subject to the rights of the Creditor Trust pursuant to Article IV.N hereof.

3. Funding of the Reorganized Debtors

All Cash necessary for the Reorganized Debtors to make payments required pursuant to the Plan will be funded solely from Cash on hand, including cash from operations and the proceeds of the Exit Facility. Cash payments to be made pursuant to the Plan will be made by the Reorganized Debtors. The Reorganized Debtors will be entitled to transfer funds between and among themselves and their Affiliates, subject to applicable non-bankruptcy law, as they determine to be necessary or appropriate to enable the Reorganized Debtors to satisfy their obligations under the Plan. Except as set forth herein, any changes in intercompany account balances resulting from such transfers will be accounted for and settled in accordance with the Debtors’ historical intercompany account settlement practices and will not violate the terms of the Plan.

4. Exit Facility

On the Effective Date, the Reorganized Debtors shall enter into the Exit Facility, the terms of which will be set forth in the Exit Facility Documents. All of the liens and security interests to be granted in accordance with the Exit Facility Documents (a) shall be deemed to be granted, (b) shall be legal, binding and enforceable liens on, and security interests in, the collateral granted thereunder in accordance with the terms of the Exit Facility Documents, (c) shall be deemed perfected as of the Effective Date, subject only to such liens and security interests as may be permitted under the Exit Facility Documents, and (d) shall not be subject to recharacterization or equitable subordination for any purposes whatsoever and shall not constitute preferential or fraudulent transfers under the Bankruptcy Code or any applicable non-bankruptcy law. The Reorganized Debtors and the Bank shall be authorized to make all filings and recordings and recordings, and to obtain all governmental approvals and consents necessary to establish and perfect such liens and security interests under the provisions of the applicable state, federal, or other law that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that perfection shall occur automatically by virtue of the entry of the Confirmation Order and any such filings, recordings, approvals, and consents shall not be required), and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security interests to third parties. A copy of the Exit Facility Documents shall be provided to the Committee prior to the Effective Date.

5. Administrative and Priority Claims Reserve

On the Effective Date, the Debtors shall fund, and the Reorganized Debtors or the Creditor Trust, as applicable, shall establish the Administrative and Priority Claims Reserve, which funds shall vest in the Creditor Trust free and clear of all Liens, Claims, encumbrances, charges, and other interests, except as otherwise specifically provided in the Plan and Confirmation Order. Funds in the Administrative and Priority Claims Reserve shall be


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used by the Creditor Trust for the payment of U.S. Trustee Fees and Allowed Administrative Claims, Allowed Priority Claims, and Allowed Professional Compensation Claims, to the extent that such Allowed Claims have not been paid in full on or prior to the Effective Date. Any amounts remaining in the Administrative and Priority Claims Reserve after payment of all Allowed Administrative Claims, Allowed Priority Claims, and Allowed Professional Compensation Claims and U.S. Trustee Fees shall become the GUC Available Cash, provided that, the Creditor Trust may in its sole discretion establish a Disputed Claim Reserve (as defined in Article V.B.3) for Administrative Claims, Priority Claims, and Professional Claims which have not been but may be Allowed and, thereupon, any amounts remaining in the Administrative and Priority Claims Reserve shall become GUC Available Cash.

6. Further Funding of Reorganized Debtors

(a) From and after the Effective Date, the Reorganized Debtors, subject to any applicable limitations set forth herein or in the Plan Supplement, shall have the right and authority without further order of the Bankruptcy Court to raise additional capital and obtain additional financing as the Reorganized Debtor Boards deem appropriate, subject to the terms of the Plan.

7. Techakraisri Settlement

(a) Techakraisi Payment. The Techakraisri Payment shall be made on or before the dates provided herein.

(b) Distribution Credit. If, within 165 days after the Effective Date, Sorapoj Techakraisri secures the release or waiver of any Third Party Claim, then there shall be a Distribution Credit, which Distribution Credit shall be applied to any then-outstanding principal balance of the Techakraisri Payment (beginning with the last payment owed); provided that, in the event Sorapoj Techakraisri defaults on the Techakraisri Payment or commences a personal bankruptcy proceeding, the Distribution Credit for any Third Party Claim shall be cancelled from and after such date of default (but not as to any entitlements on account of Third Party Claim secured prior to such date).

(c) Waiver of Claims. Upon the Effective Date, Sorapoj Techakraisri shall be deemed to waive and release all claims against the Debtors and the Estates, and the Techakraisri POCs shall be deemed withdrawn and expunged in their entirety without any further action of any party or the Bankruptcy Court.

(d) Hypothetical Acquisition of 33 Ninth Claims. To the extent that, after the Effective Date, the 33 Ninth Claims are assigned or otherwise transferred outright to Sorapoj Techakraisri or his nominee, such 33 Ninth Claims as transferred shall not be deemed waived, and shall be treated as a General Unsecured Claim with the same rights to Distributions under the Plan as if not transferred, provided, however, such Distribution rights shall be subject to and reduced by any Distribution Credit received by Sorapoj Techakraisri in connection with the 33 Ninth Claims, provided further, that until the Techakraisri Payment is paid or otherwise satisfied in full, (a) Sorapoj Techakraisri or his nominee shall not be entitled to any Distribution on account of such transferred 33 Ninth Claims and (b) any Distribution on account of the transferred 33 Ninth Claims shall be automatically and permanently applied to the amount due under the Techakraisri Payment.

(e) Deferral and Tolling. So long as there is no existing Techakraisri Payment Event of Default, (a) the Creditor Trust shall defer prosecution of any Assigned Causes of Action against Sorapoj Techakraisri, and (b) the statute of limitations with respect to any and all Assigned Causes of Action against Sorapoj Techakraisri shall be tolled during such deferral period. Upon the occurrence of a Techakraisri Payment Event of Default and the Creditor Trust providing written notice to Sorapoj Techakraisri of the same, the Creditor Trust shall have the right to pursue all Causes of Action, rights, and remedies against


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Sorporaj Techakraisri and any statutes of limitations applicable thereto shall be begin to run at such time.

(f) Techakraisri Payment Event of Default. Immediately upon the occurrence of a Techakraisri Payment Event of Default the Creditor Trust shall have the right to pursue any Causes of Action of the Debtors and the Debtors’ Estates against Sorapoj Techakraisri, including the Assigned Causes of Action.

(g) Release. Upon the timely, complete, and indefeasible payment in full of the Techakraisri Payment, Sorapoj Techakraisri shall be deemed a Released Party under the terms of this Plan. For the avoidance of doubt, Sorapoj Techakraisri shall not be deemed a Released Party and shall not be released by the Debtors, the Debtors’ Estates, or the Creditor Trust until the indefeasible satisfaction in full of the Techakraisri Payment.

(h) Application of Additional Potential Recoveries. Any Additional Potential Recoveries shall be immediately applied to the outstanding balance of the Techakraisri Payment. For the avoidance of doubt, the Additional Potential Recoveries, including but not limited to the Net Cash Proceeds of any litigation relating to DDJ, are considered an integral component of the funding of the Reorganized Debtors and the Creditor Trust, and the implementation of the Plan generally.

(i) Financial Statement Requirement. Sorapoj Techakraisri shall deliver the Techakraisri Financial Statement to the Committee’s Professionals (for their eyes only and/or to be shared with the Hon. Kevin J. Carey (ret.) at the option of the Committee or Sorapoj Techakraisri) no later than three (3) days prior to the Confirmation Hearing. The Committee’s Professionals are authorized to deliver the Techakraisri Financial Statement to the Creditor Trustee on the Effective Date, and shall destroy the same if the Effective Date does not occur on or before December 31, 2020; provided, however, that the Financial Statement cannot be shared, directly or indirectly, with (a) 33 Ninth Retail Owner LLC or its counsel or other representatives, or (b) any other party, other than the Creditor Trust’s professionals and representatives.

8. Finch Settlement

(a) Finch Payment. The Finch Payment shall be made on the Effective Date in accordance with Article IV.F.2 hereof.

(b) Releases. Upon the timely, complete, and indefeasible payment in full of the Finch Payment, each of the Finch Parties shall be deemed Released Parties under the terms of this Plan. For the avoidance of doubt, each Finch Party shall not be deemed a Released Party and shall not be released by the Debtors, the Debtors’ Estates, or the Creditor Trust until the indefeasible satisfaction in full of the Finch Payment.

(c) Withdrawal of Claims. Upon the Effective Date, Finch, together with his affiliated entities, including but not limited to, Finch & Partners, shall be deemed to waive and release all claims against the Debtors’ and the Estates, and the Finch POCs and Finch & Affiliates POCs shall be deemed withdrawn and expunged in their entirety without any further action of the parties or the Bankruptcy Court, and objections to the Finch POCs and Finch & Affiliates POCs shall be deemed mooted and withdrawn at such time.

G. Operations of the Debtors Between the Confirmation Date and the Effective Date

The Debtors shall continue to operate as Debtors in Possession during the period from the Confirmation Date through and until the Effective Date.


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H. Establishment of the Administrative Bar Date

1. The Administrative Bar Date shall be thirty (30) days after the Effective Date.

2. Except as otherwise provided in the Plan or the Confirmation Order, on or before 5:00 p.m. (Prevailing Eastern Time) on the Administrative Bar Date, as applicable, each holder of an Administrative Claim (to the extent such holder has not previously been paid) must File with the Bankruptcy Court a request for payment of such Administrative Claim.

3. Any holder of an Administrative Claim that is required to File a request for payment of such Administrative Claim that does not File such request with the Bankruptcy Court by the Administrative Bar Date, shall be forever barred, estopped, and enjoined from asserting such Administrative Claim against the Debtors, and such Administrative Claim shall be deemed released and discharged as of the Effective Date.

I. Term of Injunctions or Stays

Unless otherwise provided, all injunctions or stays provided for in the Chapter 11 Cases pursuant to Sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect to the extent and for the duration provided in Section 362(c) of the Bankruptcy Code.

J. Reorganized Debtors’ Equity Interests

1. New Common Shares

From and after the Effective Date, the New Common Shares shall be the only class of shares authorized for issuance under the Reorganized Parent Charter, subject to the terms and conditions of the Reorganized Parent Charter and provided that, except as permitted pursuant to this Plan, the Parent shall not be authorized to issue any additional shares of stock until the earlier of (i) the date that is three years after the Effective Date and (ii) the date at which one hundred percent (100%) of outstanding shares of the Parent are owned or controlled by one Person. The issuance of the New Common Shares by the Parent is authorized without the need for further corporate action and all of the New Common Shares issued pursuant to the Plan shall be duly authorized, validly issued, fully paid and non-assessable on the Effective Date.

The distribution and issuance of the New Common Shares on the Effective Date shall be governed by the terms and conditions set forth in the Plan and by the terms and conditions of the Reorganized Parent Organizational Documents, including without limitation the Stockholders Agreement, the terms and conditions of all of which shall bind each Entity receiving such distribution of New Common Shares. Any Entity’s acceptance of New Common Shares shall be deemed as its agreement to the Reorganized Parent Organizational Documents, including without limitation the Stockholders Agreement, as the same may be amended or modified from time to time following the Effective Date in accordance with their terms. The New Common Shares will be subject to the NCS Rights and the transfer restrictions set forth in the Reorganized Parent Organizational Documents, including without limitation the Stockholders Agreement. The New Common Shares will not be registered on any exchange as of the Effective Date. Although the New Common Shares to be issued under the Plan are being issued pursuant to section 1145 of the Bankruptcy Code, and would otherwise be freely tradeable except as provided by section 1145, the New Common Shares will not be freely tradeable and there will be no market for the New Common Shares. The New Common Shares will be certificated. Reorganized Parent will also maintain or cause to be maintained an electronic book entry system as the stock ledger for Reorganized Parent. Such book entry system will reflect a legend restricting the transferability of the New Common Shares until no longer required by the Reorganized Parent Organizational Documents.

2. Exemption from Registration

To the maximum extent permitted by section 1145 of the Bankruptcy Code, the issuance under the Plan of the New Common Shares, and any subsequent sales, resales, transfers or other distributions of such New Common Shares, shall be exempt from the registration requirements of section 5 of the Securities Act and any other applicable law requiring registration of securities, and all rules and regulations promulgated thereunder. In addition, to the maximum extent provided under section 1145 of the Bankruptcy Code, any and all New Common Shares


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contemplated by the Plan will be freely tradable by the recipients thereof, subject to: (1) the restrictions on the transferability of the New Common Shares contained in the Reorganized Parent Organizational Documents, including without limitation the Stockholders Agreement; and (2) the provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in section 2(a)(11) of the Securities Act, and compliance with any rules and regulations of the SEC, if any, applicable at the time of any future transfer of such securities.

K. Corporate Action; Effectuating Documents and Transactions

1. Upon the Effective Date, by virtue of entry of the Confirmation Order, all actions contemplated by the Plan shall be deemed authorized, approved, and, to the extent taken prior to the Effective Date, ratified without any requirement for further action by Holders of Claims, holders of Equity Interests in the Debtors, holders of New Common Shares, the Debtors, or any other Entity or Person. All matters provided for in the Plan involving the corporate actions of the Debtors, and any corporate action thereafter required by the Debtors in connection therewith, shall be deemed to have occurred and shall be in effect, without any requirement of further action by the Debtors or the Debtors’ Estates.

2. The Reorganized Debtors are authorized to and may issue, execute, deliver, file, or record such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan, without the need for any approvals, authorization, or consents except for those expressly required pursuant to the Plan. The Reorganized Debtors shall be authorized to execute, deliver, File, or record such contracts, instruments, and other agreements or documents and take such other actions as they may deem necessary or appropriate in their reasonable discretion to implement the provisions of this Article IV.K.

3. As of the Effective Date, applicable provisions of the Parent’s organizational documents granting indemnification of the Parent’s officers, directors, employees and agents shall be amended as necessary, as reflected in the Reorganized Parent Organizational Documents, to provide such indemnification on a mandatory basis for directors and officers of Reorganized Parent and on a permissive basis for employees and agents of Reorganized Parent.

4. Notwithstanding any provision to the contrary in this Plan, including in this Article IV.K, the Debtors and the Reorganized Debtors shall not issue non-voting equity securities.

5. The authorizations and approvals contemplated by this Article IV.K shall be effective notwithstanding any requirements under applicable non-bankruptcy law.

L. Directors and Officers of the Reorganized Debtors

The existing members of the Debtor Boards of Directors shall remain in their current capacities until replaced or removed in accordance with the organizational documents of the applicable Debtors or Reorganized Debtors, including the Reorganized Parent Organizational Documents. The existing officers of the Debtors as of the Petition Date shall remain in their current capacities as officers of the Reorganized Debtors, subject to the ordinary rights and powers of the board of directors to remove or replace them in accordance with the Debtors’ organizational documents and any applicable employment agreements.

M. Preservation of Rights of Action

1. In accordance with section 1123(b) of the Bankruptcy Code, but subject to the releases set forth in Article IX below, all Retained Causes of Action that a Debtor may hold against any Person or Entity shall vest in the applicable Reorganized Debtor on the Effective Date. Thereafter, the Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any Retained Causes of Action, whether arising before or after the Petition Date, and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order or approval of the Bankruptcy Court. No Person may rely on the absence of a specific reference in the Plan, the Plan Supplement or the Disclosure Statement to any specific Retained Cause of Action as any indication that the Debtors or Reorganized Debtors, as applicable, will not pursue any and all available


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Retained Causes of Action. The Debtors or Reorganized Debtors, as applicable, expressly reserve all rights to prosecute any and all Retained Causes of Action against any Person or Entity, except as otherwise expressly provided in the Plan, and, therefore no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or otherwise) or laches, shall apply to any Retained Cause of Action upon, after, or as a consequence of the Confirmation or the Effective Date.

2. In accordance with section 1123(b) of the Bankruptcy Code, but subject to the releases set forth in Article IX below, all Assigned Causes of Action that a Debtor may hold against any Person or Entity shall vest in the Creditor Trust on the Effective Date. Thereafter, the Creditor Trust shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any Assigned Causes of Action, whether arising before or after the Petition Date, and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order or approval of the Bankruptcy Court. No Person may rely on the absence of a specific reference in the Plan, the Plan Supplement or the Disclosure Statement to any specific Assigned Causes of Action as any indication that the Debtors or Creditor Trust, as applicable, will not pursue any and all available Assigned Causes of Action. The Debtors or Reorganized Debtors, as applicable, expressly reserve all rights for the benefit of the Creditor Trust and irrevocably assign such rights to the Creditor Trust to prosecute any and all Assigned Causes of Action against any Person or Entity, except as otherwise expressly provided in the Plan, and, therefore no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable or otherwise) or laches, shall apply to any Assigned Causes of Action upon, after, or as a consequence of the Confirmation or the Effective Date.

N. Final Certification and Case Closing

1. After the Effective Date, to the extent any Chapter 11 Case remains open, the respective Reorganized Debtor shall be liable for statutory fees due for the post-Effective Date period pursuant to 28 U.S.C. § 1930(a)(6) and shall pay or cause to be paid all fees due until entry of a final decree or an order converting or dismissing the Bankruptcy Case. Notwithstanding the foregoing, the Creditor Trustee must reimburse the Reorganized Debtors for any statutory fees due relating to any distributions made to Creditor Trust Beneficiaries and professionals retained by the Creditor Trust. Pursuant to Article IV.F.2 hereof, at any time following completion of the Effective Date Transactions as defined therein, the Reorganized Debtors shall have the right, but not the obligation, to request that the Court close any or all of the Chapter 11 Cases. Such right shall be subject to advanced notice and the consent of the Creditor Trust; provided that in the event the Creditor Trust does not consent because the full administration of any of the Chapter 11 Cases is not completed, any of the Chapter 11 Cases identified by the Creditor Trust for such purpose shall remain open, provided, further, that the Creditor Trust shall thereafter be responsible for all statutory fees for maintaining the Chapter 11 Cases until such time that the Creditor Trust files the Final Certification and seeks authority from the Bankruptcy Court to close the Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules

2. Subject to the above paragraph, in the event that the Creditor Trust does not consent to closure of the Chapter 11 Cases by the Reorganized Debtors, the Creditor Trust with the consent of the Reorganized Debtors, which consent shall not be unreasonably withheld, upon the full administration of the Chapter 11 Cases, shall file the Final Certification and seek authority from the Bankruptcy Court to close the Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy Rules.

3. The Creditor Trust and Reorganized Debtors shall each, in consultation with the other, have standing to request reopening of the Chapter 11 Cases.

ARTICLE V.

PROVISIONS GOVERNING DISTRIBUTIONS

A. Initial Distribution Date

On the Initial Distribution Date or as soon thereafter as is reasonably practicable, the Creditor Trustee shall make, or shall make adequate reserves for, the Distributions required to be made under the Plan.


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B. Treatment of Disputed Claims

1. Except as otherwise provided in the Plan, a Final Order, or as agreed to by the relevant parties, distributions under the Plan on account of Disputed Claims that become Allowed after the Effective Date shall be made on the first Distribution Date that is at least thirty (30) days after the Disputed Claim becomes an Allowed Claim; provided, however, that (a) Disputed Administrative Claims with respect to liabilities incurred by the Debtors in the ordinary course of business during the Chapter 11 Cases or assumed by the Debtors on or before the Effective Date that become Allowed after the Effective Date shall be paid or performed by the Reorganized Debtors in the ordinary course of business in accordance with the terms and conditions of any controlling agreements, course of dealing, course of business, or industry practice and (b) Disputed Priority Tax Claims that become Allowed Priority Tax Claims after the Effective Date shall be treated as Allowed Priority Tax Claims on the first Distribution Date that is at least thirty (30) days after the Disputed Claim becomes an Allowed Claim.

2. Notwithstanding any provision otherwise in the Plan and except as otherwise agreed to by the relevant parties, no partial payments and no partial Distributions shall be made with respect to a Disputed Claim until all such disputes in connection with such Disputed Claim have been resolved by settlement or Final Order. In the event that there are Disputed Claims requiring adjudication and resolution, the Creditor Trustee shall establish appropriate reserves for potential payment of such Claims.

3. Disputed Claim Reserve. On and after the Effective Date, the Creditor Trust may establish and maintain the Disputed Claim Reserve.

C. Subsequent Distributions

1. No interest shall accrue or be paid on the unpaid amount of any Distribution paid on a Subsequent Distribution Date in accordance with this Article V.C.

2. To the extent any holder of an Allowed General Unsecured Claim that received a Distribution on account of such Claim on the Initial Distribution Date or any Subsequent Distribution Date is entitled to receive an additional Distribution on account of such Claim for any reason, including due to an increase in the Ratable Proportion of such Claim or additional assets becoming part of the Creditor Trust Assets, the Creditor Trustee shall, in their discretion, make such additional Distribution to such holder on any Subsequent Distribution Date.

D. Distributions in Respect of the Election to Receive New Common Shares

Distribution of New Common Shares pursuant to Article III.B.4(b)(i)(2) shall be limited to the amount of an Eligible Holder’s Ratable Proportion, as of the NCS Election Record Date, of New Common Shares. For the avoidance of doubt, New Common Shares shall be distributed pursuant to Article III.B.4(b)(i)(2) solely on account of, and to the extent of, General Unsecured Claims that are Allowed as of the NCS Election Record Date. To the extent a General Unsecured Claim of an Eligible Holder that elected treatment pursuant to Article III.B.4(b)(i)(2) is, after the NCS Election Record Date, Allowed, such portion of such General Unsecured Claim shall receive treatment under Article III.B.4(b)(i)(1).

E. Record Date for Distributions

Except as otherwise provided in a Final Order of the Court, the transferees of Claims that are transferred pursuant to Bankruptcy Rule 3001 on or prior to the Record Date will 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 may not have expired by the Record Date. The Creditor Trustee shall have no obligation to recognize any transfer of any Claim occurring after the Record Date. In making any Distribution with respect to any Claim, the Creditor Trustee shall be entitled instead to recognize and deal with, for all purposes hereunder, only the Entity that is listed on the proof of Claim Filed with respect thereto or on the Schedules as the holder thereof as of the close of business on the Record Date and upon such other evidence or record of transfer or assignment that are actually known to the Creditor Trustee as of the Record Date.


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F. Delivery of Distributions

1. General Provisions; Undeliverable Distributions

Subject to Bankruptcy Rule 9010 and except as otherwise provided herein, Distributions to the Holders of Allowed Claims shall be made by the Creditor Trustee or their designee, assuming the availability of funds and the economic feasibility of such Distributions, at (a) the address of each Holder as set forth in the Schedules, unless superseded by the address set forth on proofs of Claim Filed by such Holder or (b) the last known address of such Holder if no proof of Claim is Filed or if the Debtors or Creditor Trustee have been notified in writing of a change of address. The Creditor Trustee shall make distributions under the Plan on behalf of the Reorganized Debtors. If any Distribution is returned as undeliverable, the Creditor Trustee may, in their discretion, make reasonable efforts to determine the current address of the holder of the Claim with respect to which the Distribution was made as the Creditor Trustee deems appropriate, provided that (i) no Distribution to any such Holder shall be made unless and until the Creditor Trustee has determined the then-current address of such Holder, at which time the Distribution to such Holder shall be made to the holder without interest, and (ii) if the Creditor Trustee is unable to determine the then-current address of such Holder, such Distribution shall be deemed unclaimed as of the first date of return as undeliverable and treated as set forth below in Article V.F.3. The Creditor Trustee shall have the discretion to determine how to make Distributions in the most efficient and cost-effective manner possible; provided, however, that their discretion may not be exercised in a manner inconsistent with any express requirements of the Plan.

2. Minimum Distributions

If any interim Distribution under the Plan would be less than $500.00, the Reorganized Debtors or Creditor Trustee, as applicable, may withhold such Distribution until a final Distribution is made to such Holder. If any final Distribution under the Plan would be $100.00 or less, no such Distribution will be made to that Holder unless a request therefor is made in writing to the Creditor Trust.

3. Unclaimed Property

Except with respect to property not Distributed because it is being held in reserve for Disputed Claims, Distributions that are not claimed by the expiration of ninety (90) days from the date of the relevant Distribution shall be deemed to be unclaimed property under Section 347(b) of the Bankruptcy Code and shall vest or revest in the Creditor Trust. The Claims with respect to which those Distributions are made shall be automatically cancelled. After the expiration of that three month period, the claim of any Entity to those Distributions shall be discharged and forever barred. Nothing contained in the Plan shall require the Creditor Trust to attempt to locate any Holder of an Allowed Claim. All funds or other property that vest or revest in the Creditor Trust pursuant to this paragraph shall be (a) used to pay the fees and expenses of the Creditor Trust as and to the extent set forth in the Plan, and (b) thereafter distributed to Holders of Allowed Claims as otherwise provided herein. In the event any Creditor Trust Assets remain after all economically feasible Distributions are made, such remaining property may be abandoned; liquidated to Cash and distributed to a registered 501(c)(3) organization of the Creditor Trust’s choice, assuming such distribution is economically feasible, or otherwise disposed. Neither unclaimed property nor any remaining portion of the Creditor Trust Assets shall escheat to any federal, state or local government or other entity.

G. Manner of Cash Payments Under the Plan

Cash payments made pursuant to the Plan shall be in United States dollars by checks drawn on a domestic bank selected by the Creditor Trust or by wire transfer from a domestic bank, at the option of the Creditor Trust.

H. Time Bar to Cash Payments by Check

Checks issued by the Creditor Trust on account of Allowed Claims shall be null and void if not negotiated within ninety (90) days after the date of issuance thereof. Requests for the reissuance of any check that becomes null and void pursuant to this Article V.H. shall be made directly to the Creditor Trust by the holder of the Allowed Claim to whom the check was originally issued. Any Claim in respect of such voided check shall be made in writing on or before the later of six (6) months from the Effective Date or ninety (90) days after the date of issuance thereof. After that date, all Claims in respect of void checks shall be discharged and forever barred and the proceeds


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of those checks shall revest in and become the property of the Creditor Trust as unclaimed property in accordance with Section 347(b) of the Bankruptcy Code and be distributed as provided in Article V.F.3.

I. Compliance with Tax Requirements

1. In connection with making Distributions under this Plan, to the extent applicable, the Creditor Trust shall comply with all tax withholding and reporting requirements imposed on it by any Governmental Unit, and all Distributions pursuant to this Plan shall be subject to such withholding and reporting requirements.

2. The Creditor Trust may require any Holder to provide the necessary information to comply with any withholding requirements of any Governmental Unit, including but not limited to a Form W-8BEN, Form W-8BEN-E, or Form W-9, or such Holder’s tax identification number, provided that such requirement must be in writing and may be issued solely to the extent such information and documents are not contained in the Debtors’ books and records or otherwise available absent such requirement.

3. The Creditor Trust may condition any distribution to any Holder upon the receipt of information and documents properly requested pursuant to paragraph (2) above. If such Holder does not furnish the required information and documents within sixty (60) days of such request, then such Holder’s Distribution shall be treated as unclaimed property in accordance with Article V.F.3.

J. Postpetition Interest on Claims

Except as specifically provided for in the Plan or the Confirmation Order, interest shall not accrue on Claims and no holder of a Claim shall be entitled to interest accruing on or after the Petition Date on any Claim. Except as expressly provided herein or in a Final Order of the Court, no prepetition Claim shall be Allowed to the extent that it is for postpetition interest or other similar charges.

K. No Distribution in Excess of Allowed Amount of Claim

Notwithstanding anything to the contrary contained in the Plan, no holder of an Allowed Claim shall receive in respect of that Claim any Distribution in excess of the Allowed amount of that Claim.

L. Setoff and Recoupment

The Creditor Trust may, but shall not be required to, setoff against, or recoup from, any Claim and Distributions to be made pursuant to the Plan in respect thereof, any claims or defenses of any nature whatsoever that are Creditor Trust Assets. Neither the failure by the Debtors, Reorganized Debtors, or Creditor Trust to exercise any right of setoff or recoupment against any Claim nor the allowance of any Claim under the Plan shall constitute a waiver or release by the Debtors, the Estates or the Reorganized Debtors of any right of setoff or recoupment that any of them may have against the holder of any Claim. Holders of Allowed Claims retain whatever rights to setoff they are otherwise entitled to assert under Bankruptcy Code Section 553.

ARTICLE VI.

DISPUTED CLAIMS

A. No Distribution Pending Allowance

Notwithstanding any other provision of the Plan, the Creditor Trust shall not Distribute any Cash or other property on account of any Disputed Claim unless and until such Claim becomes Allowed.

B. Claims Objection Deadline

The Claims Objection Deadline shall be 180 days after the Effective Date as to all Claims; provided, however, that the last date for filing Avoidance Actions against a holder of a Claim or Interest shall be the date established by Bankruptcy Code Section 546(a) and the last day for asserting any other Retained Cause of Action or Assigned Cause of Action shall be the last day of the applicable statute of limitations therefor provided under applicable non-bankruptcy law, as such period may have been extended by Bankruptcy Code Section 108 or any


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other section of the Bankruptcy Code or other applicable law; provided further, however, that no Entity or Person (including the Debtors, Reorganized Debtors, any holder of Claims, or any holder of Interests) may file an objection to any Claim deemed Allowed by the Plan, and any such objection shall be deemed null and void. Notwithstanding any of the foregoing, the Creditor Trust may request from the Bankruptcy Court one or more extensions of the Claims Objection Deadline as applied to Claims upon which Distributions are to be made by the Creditor Trust, which relief shall be freely given for cause stated and the extended date shall become the new Claims Objection Deadline applicable to the Creditor Trust.

C. Resolution of Disputed Claims

1. Subject to paragraph (3) below and with the exception of objections filed by the Debtors or Committee before the Effective Date, unless otherwise ordered by the Bankruptcy Court after notice and a hearing, the Creditor Trust shall have the exclusive right to make, File, prosecute, settle, compromise, withdraw or resolve in any manner approved by the Bankruptcy Court, objections to Claims. In the event that any objection filed by the Debtors or Committee remains pending as of the Effective Date, the Creditor Trust shall be deemed substituted for the Debtors or Committee, as applicable, as the objecting party.

2. The Creditor Trust shall have the exclusive right to make, file, prosecute, settle compromise, withdraw or resolve in any manner approved by the Bankruptcy Court, objections to GUC Cash Election Claims, Priority Claims, and Administrative Claims.

3. The Creditor Trust and Reorganized Debtors shall each have the right to make, file, prosecute, settle compromise, withdraw or resolve in any manner approved by the Bankruptcy Court, objections to General Unsecured Claims that are not GUC Cash Election Claims and to Professional Compensation Claims.

4. All objections shall be litigated to a Final Order; provided, however, that the Creditor Trustee may compromise and settle any objections to Claims or Interests, subject to the provisions of this Article VI without further order of the Bankruptcy Court; provided further, however, that distributions may be made to a Holder of a Claim or Interest prior to the expiration of the Claims Objection Deadline if the Creditor Trust reasonably believes that no basis exists for objection to such holder’s Claim or Interest. Notwithstanding the foregoing, nothing in this Plan shall be interpreted to operate as a waiver or release of (i) any right that any party-in-interest may have to object to (a) any Claim or Interest through the Effective Date or (b) any Professional Compensation Claim after the Effective Date; or (ii) any objection to Claims or Interests pending as of the Effective Date, regardless of whether such objection was brought by the Debtors or any other party-in-interest.

D. Estimation of Claims

At any time, the Creditor Trust may request that the Bankruptcy Court estimate any Claim upon which Distributions are to be made by the Creditor Trust, to the extent permitted by Section 502(c) of the Bankruptcy Code.

E. Disallowance of Claims

Any Claims held by Entities from which property is recoverable under Section 542, 543, 550 or 553 of the Bankruptcy Code or that is a transferee of a transfer avoidable under Section 522(f), 522(h), 544, 545, 547, 548, 549 or 724(a) of the Bankruptcy Code, provided that such Cause of Action is a Retained Cause of Action or Assigned Cause of Action, shall be deemed disallowed pursuant to Section 502(d) of the Bankruptcy Code, and Holders of such Claims may not receive any distributions on account of such Claims until such time as such Causes of Action against that Entity have been settled or a Bankruptcy Court order with respect thereto has been entered and all sums due, if any, to the Debtors by that Entity have been turned over or paid to the Debtors.

F. Adjustment to Claims Without Objection

Any Claim that has been paid or satisfied, amended, or superseded may be marked as satisfied, adjusted or expunged on the Claims Register by the Noticing Agent at the direction of the Reorganized Debtors or Creditor Trust, as applicable, without a Claims objection having to be Filed and without any further notice to or action, order or approval of the Bankruptcy Court.


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G. Amendments to Claims or Interests

After the Confirmation Date, a Claim or Interest may not be filed or amended without the authorization of the Bankruptcy Court and, even with such Bankruptcy Court authorization, may be amended by the holder of such Claim or Interest solely to decrease, but not to increase, unless otherwise provided by the Bankruptcy Court, the amount, number or priority of the same.

EXCEPT AS PROVIDED HEREIN OR OTHERWISE AGREED, ANY AND ALL HOLDERS OF PROOFS OF CLAIM FILED AFTER THE APPLICABLE BAR DATE SHALL NOT BE TREATED AS CREDITORS FOR PURPOSES OF VOTING AND DISTRIBUTION PURSUANT TO BANKRUPTCY RULE 3003(c)(2) AND PURSUANT TO THE GENERAL BAR DATE ORDER, UNLESS ON OR BEFORE THE CONFIRMATION HEARING SUCH LATE CLAIM HAS BEEN DEEMED TIMELY FILED BY A FINAL ORDER.

ARTICLE VII.

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

A. Rejection of Executory Contracts and Unexpired Leases

1. On the Effective Date, except as otherwise provided herein, each executory contract or unexpired lease not previously rejected, assumed, or assumed and assigned, shall be deemed automatically rejected pursuant to sections 365 and 1123 of the Bankruptcy Code, unless such executory contract or unexpired lease: (a) is specifically described in the Plan or Plan Supplement as to be assumed in connection with Confirmation of the Plan; (b) is subject as of the Confirmation Date to a pending motion to assume or assume and assign; (c) has been assumed or assumed and assigned to a third party; (d) is a contract, instrument, release, indenture, or other agreement or document entered into in connection with the Plan. Entry of the Confirmation Order by the Bankruptcy Court shall constitute approval of such assumptions, assignments, and rejections pursuant to sections 365(a) and 1123 of the Bankruptcy Code.

2. Notwithstanding anything contained in the Plan to the contrary, in the event of a dispute as to whether a contract is executory or a lease is unexpired, the rights of the Debtors or the Reorganized Debtors, as applicable, to move to assume or reject such contract or lease shall be extended until the date that is thirty (30) days after entry of a Final Order by the Bankruptcy Court determining that the contract is executory or the lease is unexpired.

3. Any monetary defaults under each Executory Contract and Unexpired Lease to be assumed or assumed and assigned pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the Cure Cost in Cash on the Effective Date, subject to the limitation described in the following paragraph, or on such other terms as the parties to such Executory Contract or Unexpired Lease may otherwise agree. Together with the Plan Supplement, to the extent not previously filed with the Court and served on affected counterparties, the Debtors shall provide for notices of proposed assumption and proposed Cure Cost (and, to the extent the Debtors seek to assume and assign an Unexpired Lease pursuant to the Plan, the Debtors will identify the assignee, if any, and provide adequate assurance of future performance by such assignee within the meaning of section 365 of the Bankruptcy Code) to be filed and served upon applicable contract and lease counterparties (and upon such Entities’ counsel, if known), together with procedures for objecting thereto and resolution of disputes by the Court. Any objection by a contract or lease counterparty to a proposed Cure Cost must be filed, served, and actually received by the Debtors before the objection deadline provided in the notice of proposed assumption and Cure Cost, which deadline shall be no less than fourteen (14) days after the date on which the applicable notice of proposed assumption and proposed Cure Cost is filed and served. Any objection by a contract or lease counterparty to a proposed assumption, assumption and assignment, or adequate assurance (other than with respect to a proposed Cure Cost) must be filed, served, and actually received by the Debtors before the Plan Objection Deadline. Any counterparty to an Executory Contract or Unexpired Lease that fails to object timely to the proposed assumption or Cure Cost will be deemed to have assented to such assumption or Cure Cost. Any objection to a proposed assumption, assumption and assignment, or Cure Cost will be scheduled to be heard by the Court at the Reorganized Debtors’ first scheduled omnibus hearing after which such objection is timely filed. In the event of a dispute regarding (1) the amount of any Cure Cost, (2) the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” within the meaning of section 365(b) of the Bankruptcy Code, if


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applicable, under the Executory Contract or the Unexpired Lease to be assumed or assumed and assigned, and/or (3) any other matter pertaining to assumption and/or assignment, then such Cure Costs shall be paid following the entry of a Final Order resolving the dispute and approving the assumption and assignment of such Executory Contracts or Unexpired Leases or as may be agreed upon by the Debtors or the Reorganized Debtors and the counterparty to such Executory Contract or Unexpired Lease; provided that the Debtors may settle any dispute regarding the amount of any Cure Cost without any further notice to any party or any action, order, or approval of the Court; provided, further, that notwithstanding anything to the contrary herein, the Debtors reserve the right to reject, or nullify the assumption of, any Executory Contract or Unexpired Lease within twenty-five (25) days after the entry of a Final Order resolving an objection to assumption or assumption and assignment, determining the Cure Cost under an Executory Contract or Unexpired Lease that was subject to a dispute, or resolving any request for adequate assurance of future performance required to assume such Executory Contract or Unexpired Lease in an amount higher than sought by the Debtors.

4. Subject to the terms of the preceding paragraphs, assumption or assumption and assignment of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise, and the payment of the Cure Cost, shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption or assumption and assignment. Any Proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and assigned, and the Cure Cost paid, shall be deemed disallowed and expunged, without further notice to or action, order, or approval of the Court. Notwithstanding the foregoing, the Debtors and the Reorganized Debtors will continue to honor all postpetition and post-Effective Date obligations under any assumed Executory Contracts and Unexpired Leases in accordance with their terms, regardless of whether such obligations are listed as a Cure Cost, and whether such obligations accrued prior to or after the Effective Date, and neither the payment of cure nor entry of the Confirmation Order shall be deemed to release the Debtors or the Reorganized Debtors from such obligations. Notwithstanding the foregoing, assumption of any Executory Contract or Unexpired Lease and/or payment of any Cure Cost shall not constitute a release of any Claims held by the Debtors or Reorganized Debtors against any party, other than for breach or default of such assumed Executory Contract or Unexpired Lease.

B. Claims Based on Rejection of Executory Contracts or Unexpired Leases

Claims created by the rejection of executory contracts and unexpired leases must be filed pursuant to the terms of the General Bar Date Order and the Rejection Bar Date as defined therein. Any Claims arising from the rejection of an executory contract or unexpired lease for which proofs of Claim are not timely filed pursuant to the General Bar Date Order within that time period will be forever barred from assertion against the Debtors, the Estates, their successors and assigns, and their assets and properties, unless otherwise ordered by the Bankruptcy Court or as otherwise provided herein. All such Claims shall, as of the Effective Date, be subject to the permanent injunction set forth in Article IX.D. Unless otherwise ordered by the Bankruptcy Court, all such Claims that are timely filed as provided herein shall be treated as General Unsecured Claims under the Plan and shall be subject to the provisions of Article III of the Plan.

C. Debtors’ Insurance Policies

Nothing in the Plan or the Confirmation Order alters the rights and obligations of the Debtors (and their Estates) and the Debtors’ insurers (and third-party claims administrators) under the Debtors’ insurance policies, if any, or modifies the coverage or benefits provided thereunder or the terms or conditions thereof or diminishes or impairs the enforceability of the Debtors’ insurance policies. No Distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors’ insurance policies until the Holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors’ insurers agrees to satisfy in full or in part a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement, the applicable portion of such Claim may be expunged without a Claims objection having to be filed and without any further notice to or action, order, or approval of the Bankruptcy Court.


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ARTICLE VIII.

CONDITIONS PRECEDENT TO THE EFFECTIVE DATE

A. Conditions Precedent to the Effective Date

The following are conditions precedent to the Effective Date that must be satisfied or waived:

1. The Confirmation Order shall be in full force and effect.

2. All documents necessary to implement the Plan, including, without limitation, the Exit Facility Documents, the Creditor Trust Agreement, the Stockholders Agreement, and all documents required to effectuate issuance of securities, shall have (a) been executed or deemed executed, as applicable, and (b) tendered for delivery. All conditions precedent to the effectiveness of such documents and agreements shall have been satisfied or waived pursuant to the terms thereof.

3. Notwithstanding the foregoing, the Debtors, with the written consent of the Committee, reserve the right to waive the occurrence of any condition precedent to the Effective Date or to modify any of the foregoing conditions precedent. Any such waiver of a condition precedent set forth in this Article may be effected at any time, without notice, without leave or order of the Bankruptcy Court, and without any formal action other than proceeding to consummate the Plan. Any actions required to be taken on the Effective Date shall take place and shall be deemed to have occurred simultaneously, and no such action shall be deemed to have occurred prior to the taking of any other such action.

B. Effect of Non-Occurrence of Conditions to the Effective Date

If the Effective Date does not occur, the Debtors (after consultation with the Committee) may determine, upon notice to the Bankruptcy Court, that the Plan is null and void in all respects, and nothing contained in the Plan, the Confirmation Order or the Disclosure Statement shall: (1) constitute a waiver or release of any Cause of Action or Claim; (2) constitute an admission, acknowledgment, offer or undertaking in any respect by any party, including the Debtors; or (3) otherwise prejudice in any manner the rights of any party, including the Debtors.

C. Establishing the Effective Date

The calendar date to serve as the Effective Date shall be a Business Day of, on or promptly following the satisfaction or waiver of all conditions to the Effective Date, which date will be selected by the Debtors. On or within two (2) Business Days of the Effective Date, the Debtors shall file and serve a notice of occurrence of the Effective Date. Such notice shall contain, among other things, the Administrative Bar Date and the Professional Claims Bar Date.

ARTICLE IX.

RELEASE, INJUNCTIVE AND RELATED PROVISIONS

A. Compromise and Settlement

Pursuant to Section 363 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the Distributions and other benefits provided pursuant to the Plan, the provisions of the Plan shall constitute a good faith compromise of all Claims and Equity Interests. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all Claims and Equity Interests, as well as a finding by the Bankruptcy Court that such compromise or settlement is fair, equitable, reasonable and in the best interests of the Debtors, the Estates and holders of Claims and Equity Interests.

B. Releases and Related Matters

1. NOTWITHSTANDING ANYTHING CONTAINED IN THE PLAN TO THE CONTRARY, ON THE EFFECTIVE DATE AND AS OF THE EFFECTIVE DATE UNLESS OTHERWISE PROVIDED HEREIN, (I) THE RELEASING PARTIES SHALL BE DEEMED TO FOREVER RELEASE, WAIVE,


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AND DISCHARGE EACH OF THE RELEASED PARTIES FROM THE RELEASED CLAIMS; (II) THE DEBTORS SHALL BE DEEMED TO FOREVER RELEASE, WAIVE, AND DISCHARGE EACH RELEASING PARTY FROM THE RELEASED CLAIMS TO THE EXTENT PERMITTED UNDER ARTICLE III.B.4 HEREOF; AND (III) THE DEBTORS, THEIR ESTATES, THE REORGANIZED DEBTORS, AND THE RELEASING PARTIES SHALL BE DEEMED TO FOREVER RELEASE, WAIVE, AND DISCHARGE EACH OF THE PLAN SPONSOR PARTIES FROM THE PLAN SPONSOR RELEASED CLAIMS, PROVIDED THAT (A) TO THE EXTENT THAT THE FINCH PAYMENT HAS NOT BEEN MADE ON THE EFFECTIVE DATE, THE FINCH PARTIES SHALL NOT BE RELEASED PARTIES AND SHALL NOT RECEIVE A RELEASE PURSUANT TO THIS PARAGRAPH, AND (B) SORAPOJ TECHAKRAISRI SHALL NOT BE A RELEASED PARTY AND SHALL NOT RECEIVE A RELEASE PURSUANT TO THIS PARAGRAPH UNLESS AND UNTIL THE TECHAKRAISRI PAYMENT IS MADE AND SATISFIED IN FULL.

2. ENTRY OF THE CONFIRMATION ORDER SHALL CONSTITUTE THE BANKRUPTCY COURT’S APPROVAL OF THE RELEASES SET FORTH IN THIS Article IX.B PURSUANT TO BANKRUPTCY RULE 9019 AND ITS FINDING THAT THEY ARE: (A) IN THE BEST INTERESTS OF THE DEBTORS AND ALL HOLDERS OF CLAIMS; (B) FAIR, EQUITABLE AND REASONABLE; AND (C) APPROVED AFTER DUE NOTICE AND OPPORTUNITY FOR HEARING.

C. Waiver of Limitations on Releases of Unknown Claims

1. THE RELEASES CONTAINED IN ARTICLE IX.B SHALL EXTEND TO RELEASED CLAIMS THAT THE PARTIES DO NOT KNOW OR EXPECT TO EXIST AT THE TIME OF THE RELEASE, WHICH, IF KNOWN, MIGHT HAVE AFFECTED THE DECISION TO ENTER INTO THE RELEASE AND WHICH THE DEBTORS SHALL BE DEEMED TO WAIVE, AND SHALL WAIVE AND RELINQUISH TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL PROVISIONS, RIGHTS, AND BENEFITS CONFERRED BY ANY LAW OF THE UNITED STATES OR ANY STATE OR TERRITORY THEREOF, OR PRINCIPLE OF COMMON LAW, WHICH GOVERNS OR LIMITS A PERSON’S RELEASE OF UNKNOWN CLAIMS.

2. THE DEBTORS ALSO ACKNOWLEDGE THAT THEY MAY DISCOVER FACTS IN ADDITION TO OR DIFFERENT FROM THOSE THAT THEY NOW KNOW OR BELIEVE TO BE TRUE WITH RESPECT TO THE SUBJECT MATTER OF THIS RELEASE, BUT THAT IT IS THE INTENTION OF THE PARTIES TO FULLY, FINALLY, AND FOREVER SETTLE AND RELEASE WITH PREJUDICE ANY AND ALL RELEASED CLAIMS, INCLUDING ANY AND ALL UNKNOWN CLAIMS, WITHOUT REGARD TO THE SUBSEQUENT DISCOVERY OR EXISTENCE OF ADDITIONAL OR DIFFERENT FACTS. THE DEBTORS EXPRESSLY AGREE THAT ANY FRAUDULENT INDUCEMENT OR SIMILAR CLAIMS THAT COULD BE PREMISED ON UNKNOWN FACTS OR FACTS THAT ARE SUBSEQUENTLY DISCOVERED ARE INCLUDED WITHIN THE DEFINITION OF UNKNOWN CLAIMS.

D. Exculpation

NOTWITHSTANDING ANYTHING CONTAINED IN THE PLAN TO THE CONTRARY, EFFECTIVE AS OF THE EFFECTIVE DATE, THE EXCULPATED PARTIES SHALL NOT HAVE OR INCUR ANY LIABILITY FOR ANY ACT OR OMISSION TAKEN OR NOT TAKEN BETWEEN THE PETITION DATE AND THE EFFECTIVE DATE IN CONNECTION WITH, RELATING TO, OR ARISING OUT OF THE CHAPTER 11 CASES, THE NEGOTIATION AND FILING OF THE DISCLOSURE STATEMENT, THE PLAN OR ANY DOCUMENT IMPLEMENTING THE PLAN, THE EXIT FACILITY, THE REORGANIZED PARENT ORGANIZATIONAL DOCUMENTS, INCLUDING WITHOUT LIMITATION THE STOCKHOLDERS AGREEMENT, THE FILING OF THE CHAPTER 11 CASES, THE SETTLEMENT OF CLAIMS OR RENEGOTIATION OF EXECUTORY CONTRACTS AND LEASES, THE PURSUIT OF CONFIRMATION OF THE PLAN, THE CONSUMMATION OF THE PLAN, OR THE ADMINISTRATION OF THE PLAN OR THE PROPERTY TO BE DISTRIBUTED UNDER THE PLAN, EXCEPT FOR ACTS OR OMISSIONS THAT ARE THE RESULT OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE, FRAUD OR CRIMINAL ACTS OR ANY OBLIGATIONS THAT THEY HAVE UNDER OR IN CONNECTION WITH THE PLAN OR THE TRANSACTIONS


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CONTEMPLATED IN THE PLAN, AND IN ALL RESPECTS SHALL BE ENTITLED TO REASONABLY RELY UPON THE ADVICE OF COUNSEL WITH RESPECT TO THEIR DUTIES AND RESPONSIBILITIES UNDER THE PLAN.

E. Injunction

THE SATISFACTION, RELEASE AND DISCHARGE PURSUANT TO THIS ARTICLE IX OF THE PLAN SHALL ALSO ACT AS AN INJUNCTION AGAINST ANY PERSON BOUND BY SUCH PROVISION AGAINST COMMENCING OR CONTINUING ANY ACTION, EMPLOYMENT OF PROCESS OR ACT TO COLLECT, OFFSET, OR RECOVER ANY CLAIM OR CAUSE OF ACTION SATISFIED, RELEASED, OR DISCHARGED UNDER THE PLAN OR THE CONFIRMATION ORDER TO THE FULLEST EXTENT AUTHORIZED OR PROVIDED BY THE BANKRUPTCY CODE, INCLUDING, WITHOUT LIMITATION, TO THE EXTENT PROVIDEDFOR OR AUTHORIZED BY SECTIONS 524 AND 1141 THEREOF.

F. Releases of Liens

Except as otherwise provided in the Plan or in the Confirmation Order, on the Effective Date, to the extent such exist, all mortgages, deeds of trust, liens, pledges or other security interests against property of the Estates shall be fully released and discharged and all of the right, title and interest of any holder of such mortgages, deeds of trust, liens, pledges or other security interest shall revert to the Debtors and the Reorganized Debtors.

G. Preservation of Rights of Action

1. Vesting of Causes of Action

(a) Except as otherwise provided in the Plan or Confirmation Order, in accordance with Section 1123(b)(3) of the Bankruptcy Code, any Retained Causes of Action that the Debtors may hold against any Entity shall vest upon the Effective Date in the Reorganized Debtors and the Reorganized Debtors shall have the exclusive right to institute and prosecute any Retained Causes of Action, without further order of the Bankruptcy Court, in any court or other tribunal, including, without limitation, in an adversary proceeding filed in one or more of the Chapter 11 Cases.

(b) Retained Causes of Action thereafter shall remain the sole property of the Reorganized Debtors, and any proceeds therefrom shall be the property of the Reorganized Debtors except as otherwise provided herein with respect to Additional Potential Recoveries to satisfy the Techakraisri Payment, and subject to such exceptions, may be used and disbursed by the Reorganized Debtors without restriction. Such Retained Causes of Action, including but not limited to the net proceeds of any litigation relating to DDJ, shall be considered an integral component of the funding of the Reorganized Debtors as well as the Creditor Trust, and the implementation of the Plan generally.

(c) Except as otherwise provided in the Plan or Confirmation Order, in accordance with Section 1123(b)(3) of the Bankruptcy Code, any Assigned Causes of Action that the Debtors may hold against any Entity shall vest upon the Effective Date in the Creditor Trust and the Creditor Trust shall have the exclusive right to institute and prosecute any Assigned Causes of Action, without further order of the Bankruptcy Court.

2. Preservation of All Retained Causes of Action Not Expressly Settled or Released

(a) The Reorganized Debtors and Creditor Trust, as applicable with respect to any Retained Cause of Action or Assigned Cause of Action, expressly reserve the right to pursue or adopt any claims alleged in any lawsuit in which the Debtors are defendants or interested parties, against any Entity, including, without limitation, the plaintiffs or co-defendants in such lawsuits.


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(b) Subject to the immediately preceding paragraph, (i) any Entity to whom the Debtors have incurred an obligation (whether on account of services, purchase or sale of goods or otherwise), (ii) any Entity who has received services from the Debtors or a transfer of money or property of the Debtors, (iii) any Entity who has transacted business with the Debtors, or leased property from the Debtors, or (iv) any professional that provided advice relating to advertising and marketing materials should, in each case, assume that any such act, omission, obligation, transfer or transaction may be reviewed by the Reorganized Debtors or the Creditor Trust, as applicable, subsequent to the Effective Date and may be the subject of an action after the Effective Date, regardless of whether: (A) such Entity has filed a proof of Claim against the Debtors in the Chapter 11 Cases; (B) the Debtors or Reorganized Debtors have objected to any such Entity’s proof of Claim; (C) any such Entity’s Claim was included in the Schedules; (D) the Debtors or Reorganized Debtors have objected to any such Entity’s scheduled Claim; or (E) any such Entity’s scheduled Claim has been identified by the Debtors or Reorganized Debtors as disputed, contingent or unliquidated.

ARTICLE X.

RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall, after the Effective Date, retain such jurisdiction over the Chapter 11 Cases and all Entities with respect to all matters related to the Chapter 11 Cases, the Debtors, the Reorganized Debtors, the Creditor Trust and the Plan as is legally permissible, including, without limitation, jurisdiction to:

1. allow, disallow, determine, liquidate, classify, estimate or establish the priority or secured or unsecured status of any Claim or Equity Interest, including the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the allowance or priority of Claims or Equity Interests;

2. grant or deny any applications for allowance of compensation or reimbursement of expenses authorized pursuant to the Bankruptcy Code or the Plan, for periods ending on or before the Effective Date;

3. resolve any matters related to the assumption, assignment or rejection of any executory contract or unexpired lease to which a Debtor is party or with respect to which a Debtor may be liable and to hear, determine and, if necessary, liquidate any Claims arising therefrom, including those matters related to any amendment to the Plan after the Effective Date pursuant to Article XI.B;

4. ensure that Distributions to holders of Allowed Claims are accomplished pursuant to the provisions of the Plan;

5. enforce the terms of the Creditor Trust Agreement and any rights and remedies thereunder;

6. decide or resolve any motions, adversary proceedings, contested or litigated matters and any other matters and grant or deny any applications involving a Debtor that may be pending on the Effective Date or instituted by the Reorganized Debtors after the Effective Date, including but not limited to any Retained Causes of Action, expressly including but not limited to any Cause of Action against DDJ; provided, however, that the Reorganized Debtors shall reserve the right to commence actions in all appropriate jurisdictions;

7. enter such orders as may be necessary or appropriate to implement or consummate the provisions of the Plan and all other contracts, instruments, releases, indentures and other agreements or documents adopted in connection with the Plan, Plan Supplement or the Disclosure Statement;

8. resolve any cases, controversies, suits or disputes that may arise in connection with the Effective Date, interpretation or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;


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9. issue and enforce injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Entity with the Effective Date or enforcement of the Plan, except as otherwise provided in the Plan;

10. enforce Article IX.B hereof;

11. enforce the Injunction set forth in Article IX.D hereof;

12. resolve any cases, controversies, suits or disputes with respect to the releases, injunction and other provisions contained in Article IX, and enter such orders as may be necessary or appropriate to implement or enforce all such releases, injunctions and other provisions;

13. enter and implement such orders as necessary or appropriate if the Confirmation Order is modified, stayed, reversed, revoked or vacated;

14. resolve any other matters that may arise in connection with or relate to the Plan, the Disclosure Statement, the Confirmation Order or any contract, instrument, release, indenture or other agreement or document adopted in connection with the Plan or the Disclosure Statement;

15. hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code; and

16. enter an order and/or the decree contemplated in Fed. R. Bankr. P. 3022 concluding the Chapter 11 Cases.

ARTICLE XI.

MISCELLANEOUS PROVISIONS

A. Modification of Plan

Subject to the limitations contained in the Plan: (1) the Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan prior to the entry of the Confirmation Order, including amendments or modifications to satisfy Section 1129(b) of the Bankruptcy Code, provided, that the Debtors shall obtain the written consent of the Committee for any modifications, which consent shall not be unreasonably withheld or delayed; and (2) after the entry of the Confirmation Order, the Debtors or the Reorganized Debtors, as the case may be, in consultation with and/or at the request of the Committee or Creditor Trust, may modify the Plan, in accordance with Section 1127(b) of the Bankruptcy Code, or remedy any defect or omission or reconcile any inconsistency in the Plan in such manner as may be necessary to carry out the purpose and intent of the Plan.

B. Revocation of Plan

The Debtors reserve the right to revoke or withdraw the Plan prior to the entry of the Confirmation Order and to File subsequent chapter 11 plans. If the Debtors revoke or withdraw the Plan or if entry of the Confirmation Order or the Effective Date does not occur, then: (1) the Plan shall be null and void in all respects; (2) any settlement or compromise embodied in the Plan, rejection of executory contracts or leases effected by the Plan, and any document or agreement executed pursuant hereto shall be deemed null and void; and (3) nothing contained in the Plan shall: (a) constitute a waiver or release of any claims by or against, or any Equity Interests in, such Debtor or any other Entity; (b) prejudice in any manner the rights of the Debtors or any other Entity; or (c) constitute an admission of any sort by the Debtors or any other Entity.

C. Payment of Statutory Fees

All fees due and payable pursuant to 28 U.S.C. § 1930 prior to the Effective Date shall be paid by the Debtors on the Effective Date. After the Effective Date, the Reorganized Debtors shall pay any and all such fees when due and payable, and the Reorganized Debtors shall file with the Bankruptcy Court quarterly reports in a form reasonably acceptable to the U.S. Trustee. Notwithstanding the substantive consolidation of the Debtors provided


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for in the Plan, each and every one of the Debtors shall remain obligated to pay quarterly fees to the U.S. Trustee until the earliest of that particular Debtor’s case being closed, dismissed or converted to a case under chapter 7 of the Bankruptcy Code.

D. Successors and Assigns

The rights, benefits and obligations of any Entity named or referred to herein shall be binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or assign of such Entity.

E. Governing Law

Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated, the laws of the State of New York, without giving effect to the principles of conflict of laws, shall govern the rights, obligations, construction, and implementation of the Plan, any agreements, documents, instruments, or contracts executed or entered into in connection with the Plan (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control), and corporate governance matters; provided that corporate governance matters relating to Debtors or Reorganized Debtors, as applicable, not incorporated in New York shall be governed by the laws of the state of incorporation or organization of the applicable Debtor or Reorganized Debtor, as applicable.

F. Reservation of Rights

Except as expressly set forth herein, the Plan shall have no force or effect unless and until the Bankruptcy Court enters the Confirmation Order. Neither the filing of the Plan, any statement or provision contained herein, nor the taking of any action by a Debtor or any Entity with respect to the Plan shall be or shall be deemed to be an admission or waiver of any rights of: (1) any Debtor with respect to the holders of Claims or Equity Interests or other parties-in-interest; or (2) any holder of a Claim or other party-in-interest prior to the Effective Date.

G. Section 1146 Exemption

Pursuant to Section 1146(a) of the Bankruptcy Code, any transfers of property pursuant hereto shall not be subject to any stamp tax or other similar tax or governmental assessment in the United States, and the Confirmation Order shall direct the appropriate state or local governmental officials or agents to forego the collection of any such tax or governmental assessment and to accept for filing and recordation instruments or other documents pursuant to such transfers of property without the payment of any such tax or governmental assessment.

H. Entire Agreement

On the Effective Date, the Plan and the Plan Supplement supersede all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into the Plan.

I. Exhibits

All exhibits and documents included in the Plan Supplement are incorporated into and are a part of the Plan as if set forth in full in the Plan. Except as otherwise provided in the Plan, such exhibits and documents included in the Plan Supplement shall be filed with the Bankruptcy Court on or before the Plan Supplement Filing Date or the Solicitation Date, as applicable. After the exhibits and documents are filed, copies of such exhibits and documents shall have been available upon written request to the Debtors’ counsel at the address above or by downloading such exhibits and documents from the Debtors’ private website at https://cases.stretto.com/DeanDeLuca/ or the Bankruptcy Court’s website at www.nysb.uscourts.gov.

J. Non-Severability

If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void or unenforceable, and such term or provision shall then be applicable as altered or


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interpreted. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is: (1) valid and enforceable pursuant to its terms; (2) integral to the Plan and may not be deleted or modified without the consent of the Debtors; and (3) nonseverable and mutually dependent.

K. Dissolution of Committee

On the Effective Date, the Committee shall be deemed to be dissolved and the members of the 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) prosecution of or objection to any Professional Compensation Claims held or asserted by any Professional or reimbursement of any reasonable and documented expenses of the Committee’s members incurred in their capacity as such, (b) any appeal or request for reconsideration of the Confirmation Order.

L. Section 1125(e) Good Faith Compliance

The Debtors and each of their respective Representatives shall be deemed to have acted in “good faith” under Section 1125(e) of the Bankruptcy Code.

M. Further Assurances

The Debtors, the Reorganized Debtors, all holders of Claims receiving Distributions hereunder, the holders of Equity Interests in the Debtors and all other parties in interest shall, from time to time, prepare, execute and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of the Plan or the Confirmation Order.

N. Service of Documents

Any pleading, notice or other document required by the Plan to be served on or delivered to the Debtors shall be sent by first class U.S. mail, postage prepaid as follows:

Brown Rudnick LLP One Financial Center Boston, Massachusetts 02111 Attn: Tristan G. Axelrod, Esq.

O. Filing of Additional Documents

On or before the Effective Date, the Debtors may File with the Bankruptcy Court all agreements and other documents that may be necessary or appropriate to effectuate and further evidence the terms and conditions hereof.

P. No Stay of Confirmation Order

The Confirmation Order shall contain a waiver of any stay of enforcement otherwise applicable, including pursuant to Fed. R. Bankr. P. 3020(e) and 7062.

Q. Aid and Recognition

The Debtors or Reorganized Debtors, as the case may be, shall, as needed to effect the terms hereof, request the aid and recognition of any court or judicial, regulatory or administrative body in any other nation or state.


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R. Special Provisions Regarding Taxing Authorities

Notwithstanding any other provision hereof, the following shall apply:

1. No Requirement to File Request for Payment

Pursuant to 11 U.S.C. § 503(b)(1)(D), no Taxing Authority or Governmental Unit shall be required to file a request for payment of any Administrative Tax Claim as a condition of its being allowed as such.

2. Payment of Interest on Priority Tax Claims

In the event that any Allowed Priority Tax Claim or Allowed Administrative Tax Claim is not paid in full on the Effective Date, such claim shall be satisfied in accordance with 11 U.S.C. § 1129(a)(9)(C) and 511(a), including but not limited to payment of interest at a rate to be determined under applicable non-bankruptcy law.

3. Effectiveness of Release

Notwithstanding anything in the Plan to the contrary, the Plan shall not release or discharge any entity, other than the Debtors or Reorganized Debtors and Creditor Trust, from any liability owed to the Texas Comptroller of Public Accounts for a tax debt, including interest and penalties on such tax. This provision is not admission by any party that such liability exists.

4. Setoff Rights

Notwithstanding anything in the Plan to the contrary, the Plan shall not limit the Texas Comptroller’s setoff rights under 11 U.S.C. § 553. This provision is not admission by any party that such setoff rights exist.

5. Event of Default

A failure by the Reorganized Debtors to make a payment to any Taxing Authority pursuant to the terms of the Plan shall be an event of default. If the Reorganized Debtors fail to cure an event of default as to tax payments within ten (10) days after service of written notice of default from such Taxing Authority, the Taxing Authority may (a) enforce the entire amount of its claim, (b) exercise all rights and remedies under applicable nonbankruptcy law, and (c) seek such relief as may be appropriate in this court. Notice of the default shall be served by first class mail upon the Reorganized Debtors in the manner provided at Article XI.N hereof, with additional copies via email to William R. Baldiga, Esq. ([email protected]) and Tristan G. Axelrod, Esq. ([email protected]).

The Reorganized Debtors shall be allowed to cure up to two (2) defaults with respect to any Taxing

Authority. Upon a third default, such Taxing Authority, at its option, may declare the default non-cureable and proceed to collect the remainder of the debt.

* * * * *


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Dated: November 20, 2020 New York, New York

DEAN & DELUCA NEW YORK, INC.

By:

_/s/ Lawton Bloom__

LAWTON BLOOM, CO-CHIEF RESTRUCTURING OFFICER DEAN & DELUCA, INC.

By:

_/s/ Lawton Bloom__

LAWTON BLOOM, CO-CHIEF RESTRUCTURING OFFICER

DEAN & DELUCA BRANDS, INC.

By:

_/s/ Lawton Bloom__


DEAN & DELUCA INTERNATIONAL, LLC

By:

_/s/ Lawton Bloom__


DEAN & DELUCA SMALL FORMAT, LLC

By:

_/s/ Lawton Bloom__


DEAN & DELUCA ATLANTA, LLC

By:

_/s/ Lawton Bloom__


DEAN & DELUCA MARKETS, LLC

By:

_/s/ Lawton Bloom__



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William R. Baldiga, Esq. BROWN RUDNICK LLP 7 Times Square New York, NY 10036 (212) 209-4800 and Tristan G. Axelrod, Esq. BROWN RUDNICK LLP One Financial Center Boston, MA 02111 (617) 856-8200 Counsel for the Debtor and Debtor-in-Possession 23228868.2/041287-00000


UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT …...forth in the Declaration of Angela Tsai on...

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