WITNESS AND EXHIBIT LIST UNITED STATES BANKRUPTCY … · KP Engineering, LP and KP Engineering,...

WITNESS AND EXHIBIT LIST

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Case No: 19-34698 Name of Debtor: KP Engineering, LP, et al. Witnesses:

1. Douglas J. Brickley 2. Christopher L. Quinn 3. Any witness called by any other

party

Judge: David R. Jones

Hearing Date: April 8, 2020 Hearing Time: 10:30 p.m. Party Names: KP Engineering, LLC

KP Engineering, LP Attorney’s Name: Christopher Adams Attorney’s Phone: (713) 228-4100

Nature of Proceedings:

1. Debtors’ Emergency Motion for Entry of an Order Approving (I) Adequacy of the Disclosure Statement; (II) Form of Solicitation Materials; and (III) Procedures for Soliciting and Voting on the Joint Chapter 11 Plan of Reorganization [ECF # 454]

2. Emergency Motion by the Official Committee of Unsecured Creditors to Strike the Debtors’ Proposed Plan of Reorganization or, in the Alternative, to Terminate Exclusivity [ECF # 457]

DEBTORS’ EXHIBITS

Ex.# Description Offered Objection Admitted/Not

Admitted

Disposition

1. Disclosure Statement [ECF # 438]

2. Proposed Ballots [ECF # 454-2]

3. Proposed General Notice [ECF # 454 – 3]

4. Proposed Order Approving Disclosure Statement [ECF # 454-1]

5. Plan of Reorganization [ECF # 437]

Case 19-34698 Document 468 Filed in TXSB on 04/06/20 of 3

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Ex.# Description Offered Objection Admitted/Not

Admitted

Disposition

6. Liquidation Analysis

7. Plan Projections

8. List of 90 Day Payments or Transfers

9. Schedule of Retained Causes of Action

10. Committee’s Demand Letter

11. Second Exclusivity Order [ECF # 399]

12. Objection to Proof of Claim of Targa Pipeline Mid-Continent WestTex LLC [ECF # 462]

13. Objection to Proof of Claim of Targa Channelview LLC [ECF # 463]

14. Any exhibit introduced by any other party

15. Rebuttal exhibits


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Respectfully submitted on the 6th day of April, 2020.

OKIN ADAMS LLP

By: /s/ Christopher Adams Christopher Adams Texas Bar No. 24009857 [email protected] James W. Bartlett, Jr. Texas Bar No. 00795238 [email protected] Ryan A. O’Connor Texas Bar No. 24098190 [email protected] 1113 Vine St., Suite 240 Houston, Texas 77002 Tel: 713.228.4100 Fax: 888.865.2118

ATTORNEYS FOR THE DEBTORS

CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2020 a true and correct copy of the foregoing Witness and Exhibit List was served via this Court’s CM/ECF notification system to those parties registered for service upon filing of the same.

By: /s/ Ryan A. O’Connor Ryan A. O’Connor


mailto:[email protected]


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IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

§ In re: § Chapter 11 § KP ENGINEERING, LP, et al., §

§ Case No. 19-34698 (DRJ)

§ (Jointly Administered) Debtors.1 § §

DISCLOSURE STATEMENT IN SUPPORT OF JOINT CHAPTER 11 PLAN OF

REORGANIZATION OF KP ENGINEERING, LP AND KP ENGINEERING, LLC

THIS DISCLOSURE STATEMENT (THE “DISCLOSURE STATEMENT”) MAY NOT BE RELIED ON FOR ANY PURPOSE OTHER THAN TO DETERMINE HOW TO VOTE ON THE JOINT CHAPTER 11 PLAN OF REORGANIZATION OF KP ENGINEERING, LP AND KP ENGINEERING, LLC, DATED AS OF FEBRUARY 28, 2020 (AS AMENDED FROM TIME TO TIME, THE “PLAN”), AND NOTHING CONTAINED HEREIN SHALL CONSTITUTE AN ADMISSION OF ANY FACT OR LIABILITY BY ANY PARTY, OR BE ADMISSIBLE IN ANY PROCEEDING INVOLVING THE DEBTORS OR ANY OTHER PARTY, OR BE DEEMED CONCLUSIVE ADVICE ON THE TAX OR SECURITIES LAWS OR OTHER LEGAL EFFECTS OF THE PLAN ON HOLDERS OF CLAIMS AGAINST OR EQUITY INTERESTS IN THE DEBTORS. ANY CREDITOR OR OTHER PARTY BUYING OR SELLING A CLAIM BASED ON THE INFORMATION CONTAINED HEREIN, DOES SO AT ITS OWN RISK.

THIS DISCLOSURE STATEMENT HAS NOT BEEN APPROVED BY THE SECURITIES

AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THE STATEMENTS CONTAINED HEREIN. IN ADDITION, THIS DISCLOSURE STATEMENT AND THE PLAN HAVE NOT BEEN REQUIRED TO BE PREPARED IN ACCORDANCE WITH FEDERAL OR STATE SECURITIES LAWS OR OTHER APPLICABLE NON-BANKRUPTCY LAW. PERSONS OR ENTITIES TRADING IN OR OTHERWISE PURCHASING OR SELLING OR TRANSFERRING SECURITIES SHOULD EVALUATE THIS DISCLOSURE STATEMENT AND THE PLAN IN LIGHT OF THE PURPOSES FOR WHICH THEY WERE PREPARED.

ALL HOLDERS OF CLAIMS AND EQUITY INTERESTS THAT ARE ENTITLED TO VOTE

ON THE PLAN ARE ENCOURAGED TO READ AND CAREFULLY CONSIDER THE ENTIRE DISCLOSURE STATEMENT FURNISHED TO THEM AND THE MATTERS DESCRIBED IN THIS DISCLOSURE STATEMENT PRIOR TO SUBMITTING A BALLOT. THE DESCRIPTION OF THE PLAN CONTAINED IN THIS DISCLOSURE STATEMENT IS INTENDED AS A SUMMARY ONLY AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE PLAN ITSELF. ALL HOLDERS

1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are: KP Engineering, LP (7785) and KP Engineering, LLC (0294). The location of the Debtors’ corporate headquarters and the Debtors’ service address is: 5555 Old Jacksonville Highway, Tyler, TX 75703.

Case 19-34698 Document 438 Filed in TXSB on 02/28/20 Page 1 of 57Case 19-34698 Document 468-1 Filed in TXSB on 04/06/20 Page 1 of 57

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OF CLAIMS AND EQUITY INTERESTS THAT ARE ENTITLED TO VOTE ON THE PLAN SHOULD READ, CONSIDER, AND CAREFULLY ANALYZE THE TERMS AND PROVISIONS OF THE PLAN.

THE DEBTORS HAVE ATTEMPTED TO PRESENT THE INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT ACCURATELY AND FAIRLY. THE ASSUMPTIONS UNDERLYING THE ANTICIPATION OF FUTURE EVENTS CONTAINED IN THIS DISCLOSURE STATEMENT REPRESENT AN ESTIMATE BY THE DEBTORS, BUT BECAUSE THESE ARE ONLY ASSUMPTIONS OR PREDICTIONS OF FUTURE EVENTS (MOST OF WHICH ARE BEYOND THE DEBTORS’ CONTROL), THERE CAN BE NO ASSURANCE THAT THE EVENTS WILL OCCUR.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNLESS OTHERWISE STATED, ALL STATEMENTS IN THIS DISCLOSURE STATEMENT AND IN THE PLAN CONCERNING THE HISTORY OF THE DEBTORS’ BUSINESSES, THE PAST OR PRESENT FINANCIAL CONDITION OF THE DEBTORS, CERTAIN PROJECTIONS FOR THE FUTURE OPERATIONS OF THE DEBTORS, TRANSACTIONS TO WHICH EITHER DEBTORS WAS OR IS A PARTY, OR THE EFFECT OF CONFIRMATION OF THE PLAN ON HOLDERS OF CLAIMS AGAINST AND EQUITY INTERESTS IN THE DEBTORS ARE ATTRIBUTABLE EXCLUSIVELY TO THE DEBTORS AND NOT TO ANY OTHER PARTY. NONE OF THE ATTORNEYS, ACCOUNTANTS, OR OTHER PROFESSIONALS RETAINED BY THE DEBTORS MAKE ANY REPRESENTATIONS CONCERNING SUCH INFORMATION.

NO PERSON IS AUTHORIZED BY THE DEBTORS IN CONNECTION WITH THE PLAN OR THE SOLICITATION OF ACCEPTANCES OF THE PLAN TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS DISCLOSURE STATEMENT AND THE EXHIBITS ATTACHED HERETO OR INCORPORATED BY REFERENCE OR REFERRED TO HEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MAY NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE DEBTORS. SUCH ADDITIONAL REPRESENTATIONS SHOULD BE REPORTED TO COUNSEL FOR THE DEBTORS, WHO IN TURN SHALL DELIVER SUCH INFORMATION TO THE BANKRUPTCY COURT FOR ACTION AS MAY BE DEEMED APPROPRIATE. THE DELIVERY OF THIS DISCLOSURE STATEMENT WILL NOT UNDER ANY CIRCUMSTANCES IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. THIS DISCLOSURE STATEMENT IS DATED AS OF FERBRUARY 28, 2020, AND HOLDERS OF CLAIMS AND EQUITY INTERESTS ARE ENCOURAGED TO REVIEW THE DOCKET IN THE BANKRUPTCY CASES IN ORDER TO APPRISE THEMSELVES OF EVENTS WHICH OCCUR IN THE BANKRUPTCY CASES BETWEEN THE DATE OF THIS DISCLOSURE STATEMENT AND THE DATE OF THE CONFIRMATION HEARING.

THE REQUIREMENTS FOR CONFIRMATION OF THE PLAN ARE SET FORTH IN THE SECTION OF THIS DISCLOSURE STATEMENT TITLED “CONFIRMATION REQUIREMENTS.”

UNLESS OTHERWISE DEFINED HEREIN, ALL CAPITALIZED TERMS USED IN THIS DISCLOSURE STATEMENT HAVE THE MEANINGS ASCRIBED TO THEM IN THE PLAN. ANY TERM USED IN THE PLAN OR HEREIN THAT IS NOT DEFINED IN THE PLAN OR HEREIN AND THAT IS USED IN THE BANKRUPTCY CODE OR THE BANKRUPTCY RULES HAS THE MEANING ASSIGNED TO THAT TERM IN THE BANKRUPTCY CODE OR THE BANKRUPTCY RULES, AS THE CASE MAY BE. IF THERE IS ANY CONFLICT BETWEEN THE DEFINITIONS CONTAINED IN THIS DISCLOSURE STATEMENT AND THE DEFINITIONS CONTAINED IN THE PLAN, THE DEFINITIONS CONTAINED IN THE PLAN SHALL CONTROL.


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THE PLAN PROPOSES EXCULPATION FROM LIABILITY AS TO THE DEBTORS AND VARIOUS NON-DEBTOR PARTIES AND RELEASES AS TO VARIOUS NON-DEBTOR PARTIES FOR CERTAIN PRE- AND POST-PETITION ACTIONS IN CONNECTION WITH THE BANKRUPTCY CASES, WHICH PROVISIONS WOULD ENJOIN THE DEBTORS, HOLDERS OF CLAIMS, AND HOLDERS OF EQUITY INTERESTS FROM PURSUING CERTAIN ACTIONS AGAINST SUCH PARTIES EXCEPT AS OTHERWISE PROVIDED IN THE PLAN. ALL PARTIES IN INTEREST ARE URGED TO READ CAREFULLY ARTICLE VIII OF THE PLAN ON EXCULPATION FROM LIABILITY AND RELEASES.


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DISCLOSURE STATEMENT PURSUANT TO SECTION 1125 OF THE BANKRUPTCY CODE

I. INTRODUCTION

KP Engineering, LP and KP Engineering, LLC, as Debtors and Debtors-in-Possession in the above-captioned jointly administered Bankruptcy Cases, have Filed with the United States Bankruptcy Court for the Southern District of Texas, Houston Division (the “Bankruptcy Court”), their joint Chapter 11 Plan of Reorganization dated as of February 28, 2020 (as may amended from time to time, the “Plan”). This Disclosure Statement in Support of Chapter 11 Reorganization of KP Engineering, LP and KP Engineering, LLC, dated as of February 28, 2020 (the “Disclosure Statement”), is submitted pursuant to section 1125 of the Bankruptcy Code in connection with the solicitation of votes on the Plan from Holders of Impaired Claims against, and Impaired Equity Interests in, the Debtors.

This Disclosure Statement has been approved by the Bankruptcy Court in accordance with section 1125(b) of the Bankruptcy Code as containing information of a kind and in sufficient detail adequate to enable a hypothetical reasonable investor typical of Holders of Claims and Equity Interests in Impaired Classes, if any, to make an informed judgment whether to accept or reject the Plan. Such approval of this Disclosure Statement by the Bankruptcy Court and the transmittal of this Disclosure Statement do not, however, constitute a determination by the Bankruptcy Court as to the fairness or merits of the Plan and should not be interpreted as being a recommendation by the Bankruptcy Court either to accept or reject the Plan.

Accompanying or included as exhibits to this Disclosure Statement are copies of the following documents:

1. The Plan, including any Exhibits thereto (except as otherwise expressly provided in the Plan), included as Exhibit 1 to this Disclosure Statement;

2. Liquidation Analysis included as Exhibit 2 to this Disclosure Statement;

3. List of payments made by the Debtors during the 90-day period prior to the Petition Date, included as Exhibit 3 to this Disclosure Statement; and

4. Schedule of Retained Causes of Action is included as Exhibit 4 to this Disclosure Statement.

II. PURPOSE OF THIS DISCLOSURE STATEMENT

The purpose of this Disclosure Statement is to provide the Holders of Claims and Equity Interests entitled to vote on the Plan with adequate information to make an informed judgment about the Plan. This information includes, among other things, (a) a summary of the Plan and an explanation of how the Plan will function, including the means of implementing and funding the Plan, (b) general information about the businesses, property, and operations of the Debtors, (c) the events leading to the filing of the Bankruptcy Cases, (d) a liquidation analysis for the Debtors, and (e) a summary of significant events which have occurred to date in the Bankruptcy Cases.


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This Disclosure Statement contains important information about the Plan and considerations pertinent for Confirmation of the Plan. All Holders of Claims and Equity Interests are encouraged to review carefully this Disclosure Statement.

IN THE OPINION OF THE DEBTORS, THE TREATMENT OF CLAIMS UNDER THE PLAN CONTEMPLATES A GREATER RECOVERY THAN THAT WHICH IS LIKELY TO BE ACHIEVED UNDER A LIQUIDATION OF THE DEBTORS. ACCORDINGLY, THE DEBTORS BELIEVE THAT CONFIRMATION OF THE PLAN IS IN THE BEST INTERESTS OF CREDITORS.

III. VOTING AND CONFIRMATION

A. Who May Vote

Only the Holders of Claims and Equity Interests which are “Impaired” under the terms and provisions of the Plan are permitted to vote to accept or reject the Plan. For purposes of the Plan, only the Holders of Claims and Equity Interests in Classes 2, 3, 4, 5, 6, 7 and 8 (the “Voting Classes”) are Impaired under the Plan and thus may vote to accept or reject the Plan. Accordingly, a ballot for acceptance or rejection of the Plan (a “Ballot”) is only being provided to members of the Voting Classes.

B. How to Vote

Each Holder of a Claim in a Voting Class should read this Disclosure Statement, together with the Plan and any Exhibits thereto, in their entirety. After carefully reviewing the Plan and this Disclosure Statement and any Exhibits thereto, please complete the enclosed Ballot, including marking your vote with respect to the Plan, and return it as provided below. If you have an Impaired Claim in more than one Class, you should receive a separate Ballot for each such Claim. If you receive more than one Ballot, you should assume that each Ballot is for a separate Impaired Claim and you should complete and return all of them.

If you are a member of a Voting Class and did not receive a Ballot, if your Ballot is damaged or lost, or if you have any questions concerning voting procedures, please contact Christopher Adams, counsel to the Debtors, by telephone at (713) 228-4100 or by electronic mail at [email protected].

Persons or Entities receiving a Ballot should complete and sign each enclosed Ballot and return it to the address provided below. In order to be counted, Ballots must be duly completed, executed and received no later than April [x], 2020 (the “Voting Deadline”). All Ballots should be returned either by regular mail, hand delivery, overnight delivery, or email to:

OKIN ADAMS LLP Attn: Christopher Adams

1113 Vine Street, Suite 240 Houston, Texas 77002

[email protected]




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C. Acceptance of Plan and Votes Required for Class Acceptance

As the Holder of a Claim in a Voting Class, your vote on the Plan is extremely important. The Debtors are only soliciting acceptances of the Plan only from Holders of Claims in Voting Classes. You may be contacted by the Debtors or their representatives with regard to your vote on the Plan.

Pursuant to Section 1126(c) of the Bankruptcy Code, an Impaired Class of Claims shall have accepted the Plan if:

(i) the Holders (other than any Holder designated pursuant to Section 1126(e) of the Bankruptcy Code) of at least two-thirds in dollar amount of the Allowed Claims actually voting in such Class have voted to accept the Plan; and

(ii) the Holders (other than any Holder designated pursuant to Section 1126(e) of the Bankruptcy Code) of more than one-half in number of the Allowed Claims actually voting in such Class have voted to accept the Plan.

If a Holder of a Claim holds more than one Claim in any one Class, all Claims of such Holder in such Class shall be aggregated and deemed to be one Claim for purposes of determining the number of Claims in such Class voting on the Plan.

To meet the requirement for Confirmation of the Plan under the “cram-down” provisions of the Bankruptcy Code with respect to any Impaired Class of Claims which votes to reject, or is deemed to have rejected, the Plan (a “Rejecting Class”), the Debtors would have to show that all Classes junior to the Rejecting Class will not receive or retain any property under the Plan unless all Holders of Claims in the Rejecting Class receive or retain under the Plan property having a value equal to the full amount of their Allowed Claims. For a more complete description of the implementation of the “cram-down” provisions of the Bankruptcy Code pursuant to the Plan, see “VOTING ON AND CONFIRMATION OF THE PLAN -- Confirmation Without Acceptance by All Impaired Classes” in Section IX. B. hereof.

D. Confirmation Hearing and Objections to Confirmation

The Bankruptcy Court has scheduled a Confirmation Hearing to consider Confirmation of the Plan for [________], 2020 at _:__ a.m., at the courtroom of the Honorable David R. Jones, United States Bankruptcy Court, 515 Rusk, Courtroom No. 400, Houston, Texas 77002, which may be adjourned from time to time by the Bankruptcy Court without further notice except for an announcement of the adjourned date made at the Confirmation Hearing. Any objection to Confirmation of the Plan must be filed and served in accordance with the Bankruptcy Rules and Bankruptcy Local Rules for the Southern District of Texas no later than [______], 2020.

IV. OVERVIEW OF THE DEBTORS’ BUSINESSES

KP Engineering, LLC is a Delaware limited liability company, and KP Engineering, LP, is a Texas limited partnership. The information contained in this section of the Disclosure Statement provides a summary of the Debtors’ formation, historical ownership, capital structure, and business operations prior to the Petition Date. As more fully set forth in this section, the Debtors’ history


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involves a lengthy series of transactions, mergers and name changes, the details of which are necessary to understand their organizational structure as of the Petition Date.

A. Historical Ownership of the Debtors

Koch Partners, LP was organized on November 12, 2003 as a Texas limited partnership. Effective February 18, 2004, Koch Partners, LLC, as general partner, Ryno Engineering, LLC (“Ryno Engineering”), as limited partner, and Koch Chemical Technology Group, Inc. (“KCTGI”), as limited partner, entered into an Agreement of Limited Partnership of Koch Partners, LP (the “Koch Partnership Agreement”). Pursuant to the Koch Partnership Agreement, the ownership interests of, and initial capital contributions to, Koch Partners, LP were as follows:

Entity Ownership Interest Capital Contribution

Koch Partners, LLC 1.0% $5,000

Ryno Engineering 0.1% $500

KCTGI 98.9% $494,5002

Ryno Engineering was formed on January 28, 2004. Brandon Steele, Ric Steele (“Ric”),

and Ken Baxter (“Baxter”) each initially owned 27.8% of Ryno Engineering, and Tony Freeman (“Freeman”) initially owned 16.6%. KCTGI was the sole member of Koch Partners, LLC, and KCTGI was wholly owned by unrelated third parties. Effective March 31, 2008, KCTGI sold all of its limited partnership interests in Koch Partners, LP to Brandon Steele, Ric, Baxter, and Freeman, individually, in shares proportionate to their ownership interest in Ryno Engineering. KCTGI sold all of its interest in Koch Partners, LLC to RynoGreek, LLC (“RynoGreek”).3 Effective May 5, 2008, Koch Partners, LP’s name was changed to KP Engineering, LP, and Koch Partners, LLC’s name was changed to KP Engineering, LLC. Following the March 31, 2008 sale, the ownership interests in Debtor KPE LP were as follows:

Person or Entity Ownership Interest

Ryno Engineering 0.1%

Brandon Steele 27.5%

Ric Steele 27.5%

Ken Baxter 27.5%

Tony Freeman 16.4%

KPE LLC 1.0%

2 KCTGI also transferred to the Koch Partners, LP, as additional capital, a royalty free license to use the Koch name and trademark. 3 RynoGreek was formed on December 11, 2006. RynoGreek’s Certificate of Formation lists Ryno Texas Holdings, Inc. (“Ryno Texas”) as the sole member. Brandon Steele owned one hundred percent (100%) of Ryno Texas. Effective June 9, 2014, Ryno Texas was re-named Steele Real Estate Holdings, Inc. and, effective December 31, 2018, it became BTS Enterprises, Inc.


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B. Current Organizational Structure

Effective January 1, 2013, and January 1, 2014, respectively, Brandon Steele purchased all of Ric’s and Baxter’s interests in KPE LP and Ryno Engineering. Effective January 1, 2016, Brandon Steele purchased all of Freeman’s interest in KPE LP and Ryno Engineering. Accordingly, as of January 1, 2016, Brandon Steele, individually and through both Ryno Engineering and RynoGreek via BTS Enterprises, owned one hundred percent (100%) of KPE LP.

Effective December 31, 2018, RynoGreek and Ryno Engineering were merged into BTS

Enterprises, with BTS Enterprises as the surviving entity. Accordingly, KPE LLC is a wholly owned subsidiary of BTS Enterprises, and BTS Enterprises became the owner of Ryno Engineering’s limited partnership interest in KPE LP. Brandon Steele then transferred his limited partnership interest in KPE LP to BTS Enterprises.4 Accordingly, as of the Petition Date, KPE LLC remained the general partner of KPE LP, and BTS Enterprises, Inc. was the sole limited partner of KPE LP. Specifically, KPE LLC owns one percent (1%) of KPE LP and BTS owns the remaining ninety-nine percent (99%) of KPE LP. BTS owns one hundred percent (100%) of KPE LLC. Brandon Steele is the ultimate owner of the Debtors and certain of their non-Debtor affiliates. For ease of reference, a corporate organizational chart identifying the Debtors, as well as their relationships to Brandon Steele and other non-Debtor affiliates is set forth below:

4 Prior to December 31, 2018, KPE LP owned the membership interest in BTS Aviation LLC and the two shell entities, KP Midstream, LLC and KP Technology LLC. The primary asset of BTS Aviation LLC was an airplane. Due to potential aviation regulatory issues, effective December 31, 2018, KPE LP distributed the membership interests of BTS Aviation LLC such that it became wholly owned by BTS Enterprises.


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C. Prepetition Capital Structure

In or around May 11, 2017, Debtor KPE LP, as borrower, and Texas Capital Bank, as the prepetition lender, executed that certain Promissory Note in the original principal amount of $12,000,000.00 (the “Revolving Note”) along with that certain Credit Agreement (the “Revolving Credit Agreement”) and that certain Cash Collateral Agreement (the “Revolving Cash Collateral Agreement,” and together with all other documents, instruments, and agreements delivered in connection with the foregoing agreements, the “Revolving Loan Documents”).

In or around May 15, 2017, Debtor KPE LP, as borrower, and Texas Capital Bank, as the prepetition lender, executed that certain Promissory Note in the original principal amount of $16,000,000.00 (the “2017 Note”) along with that certain Credit Agreement (the “2017 Credit Agreement”) and that certain Security Agreement (the “2017 Security Agreement,” and together with all other documents, instruments, and agreements delivered in connection without the foregoing agreements, the “2017 Loan Documents”). The 2017 Note, and other related prepetition obligations, was secured by a valid and enforceable Lien encumbering substantially all assets of Debtor KPE LP (the “2017 Collateral”), as set forth in the 2017 Loan Documents. The 2017 Note bears interest at LIBOR plus 3.5%, or 5.06%, and is payable in monthly installments of $266,667 (plus variable interest calculated monthly) with the final installment due May 14, 2022. Debtor KPE LLC was also a party to the 2017 Note, and Brandon Steele, individually, guaranteed the 2017 Note.

In or around June 8, 2018, Debtor KPE LP, as borrower, and Texas Capital Bank, as prepetition lender, executed that certain Loan Modification Agreement and that certain Promissory Note in the original principal amount of $25,000,000.00 (the “2018 Note”) along with that certain Credit Agreement (the “2018 Credit Agreement”) and that certain Security Agreement (the “2018 Security Agreement,” and together with all other documents, instruments, and agreements delivered in connection with the foregoing agreements, the “2018 Loan Documents”). The 2018 Note, and other related prepetition obligations, was secured by a valid and enforceable Lien encumbering substantially all assets of Debtor KPE LP (the “2018 Collateral”), as set forth in the 2018 Loan Documents. Notably, the 2018 Note paid and replaced the 2017 Note and terminated the Revolving Loan Documents. Thus, the 2018 Loan Documents, as modified, amended, and supplemented, are the operative Prepetition Loan Documents.

Prior to the Petition Date, Brandon Steele, individually, owed Debtor KPE LP the sum of $13,169,773.12 (the “Partner Receivable”) in connection with certain prepetition transactions between Steele and the Debtors. Immediately prior to the Petition Date, Steele repaid the Partner Receivable, the proceeds of which were paid by the Debtors to Texas Capital Bank. Thus, on the Petition Date, the outstanding balance under the Prepetition Loan Documents was $8,743.207.21.

D. Operations

The founders of KPE LP included former employees of Howe-Baker Engineers (now McDermott/CBI). At that time, KPE LP began providing engineering, procurement, and construction (“EPC”) services to the independent refining market. As EPC contractors, the Debtors generally enter into agreements with owners pursuant to which KPE LP will design a


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facility, procure the needed equipment and materials, and supervise construction of the facility. Prior to the Petition Date, KPE LP typically retained subcontractors to perform construction pursuant to agreements and/or purchase orders between KPE LP and the subcontractors. The Debtors offer services in three phases:

(i) Process Studies: In early project phases for EPC contracts, projects require available alternatives to be considered and evaluated efficiently and accurately. The Debtors conduct process studies to evaluate available alternatives and ensure effective solutions.

(ii) Project Development: After the Debtors evaluate process alternatives and obtain endorsements of the recommended solution by the customer, the Debtors work to develop the scope of the project and detail the related performance, capital and operating requirements to provide the customer with a clear understanding of projected costs.

(iii) Project Execution: Once the scope of the project and projected costs has been accepted by the customer, the Debtors execute the agreed upon project solution.

KPE LP quickly assumed a leading position in this sector as clients embraced KPE LP’s technical expertise and fixed price contracting platform. As it continued to grow, KPE LP expanded into other sectors of the hydrocarbon processing industry. First, in 2013, KPE LP expanded beyond the traditional downstream refining sector by forming a division specifically for midstream applications. Second, in 2015, KPE LP took occupancy of a new corporate office in Tyler, Texas where the Debtors established their headquarters at 5555 Old Jacksonville Highway, Tyler, Texas 75703, which was leased from an affiliate. They also opened a Houston location, which allows the Debtors to provide enhanced sales, project development, and support to their Gulf Coast clients.

In 2016, KPE LP entered the petrochemical and syngas industries. KPE LP also acquired

McDaniel Process Engineering Consultants, Inc. (“MPEC”) to enhance its technical expertise in refining, midstream, and petrochemical processes, particularly fractionation applications. On and before the Petition Date, the Debtors had garnered significant name recognition in the industry as a result of their EPC projects for the refining, midstream, and chemical industries.

Currently, the Debtors generate nearly all of their revenue from EPC contracts. All of the

EPC contracts and other business functions and operations are managed by KPE LP. The sole business function of KPE LLC is to serve as the general partner of KPE LP. Expenses for the Debtors’ day-to-day operations includes payroll, rent, utilities, and payments to subcontractors and vendors, among others. Notwithstanding the litigation and potential liabilities described in further below, the Debtors have been historically profitable. For the year ended December 31, 2018, Debtor KPE LP generated over $177 million in revenue. For the year ended December 31, 2017, Debtor KPE LP generated over $225 million in revenue.

E. Intercompany Transactions and Office Leases

Prepetition, in the ordinary course of their operations, the Debtors received certain services from, and made payments for such services to, certain non-Debtor affiliates. Specifically, the


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Debtors leased office space in two facilities owned by non-Debtor affiliates KPE Realty, LLC (“KPE Realty”) and KPE Realty II, LLC (“KPE Realty II”). These facilities are located in Tyler, Texas. The Debtors pay monthly base rent to KPE Realty in the amount of $41,666.67 and to KPE Realty II in the amount of $52,083.33. The base rent does not include payment of utilities for these facilities. The Debtors maintain accounts with certain utility service providers and pay the utility service providers directly. Since the Petition Date, KPE LP has decided to reject the lease with KPE Realty II.

The Debtors also sub-leased certain office space. Specifically, the Debtors sub-leased office space in a facility in Tulsa, Oklahoma from non-Debtor affiliate Steele Resources, LLC (“Steele Resources”). The Debtors paid Steele Resources approximately $9,222.46 per month in base rent for the sub-leased space, with this base rent factoring in payment of certain shared utilities paid by Steele Resources to the utility service providers. The Debtors paid certain additional utility service providers directly for other services that are not shared with Steele Resources, including phone and internet. After the Petition Date, this lease expired by its own terms.

Additionally, the Debtors sub-leased certain office space in a facility in Houston, Texas, but such space was leased from a third party not affiliated with the Debtors, Kvaerner Americas Holding, Inc. (“Kvaerner”). The Debtors paid Kvaerner approximately $25,000.00 per month in base rent for the sub-leased space. In addition to the base rent, Kvaerner billed the Debtors for their ratable portion of certain shared utility services, including electricity, gas, and waste removal, as well as other office costs. The Debtors paid additional utilities for this facility, including phone, internet, backup internet, cable, and satellite, directly to the respective utility service providers. After the Petition Date, this lease expired by its own terms.

In addition to the various office and facility lease obligations, the Debtors made monthly prepetition payments to Steele Resources in the amount of $300,000.00 for certain shared services. These shared services included accounting, legal, and executive management.

V. EVENTS LEADING TO THE BANKRUPTCY CASES

Generally, the Debtors face a number of risks to their businesses. The landscape surrounding the EPC contractor market is highly competitive, technical, and rapidly-changing. The technological advancement in the industry is altering their core business. If the Debtors are unable to innovate and adapt to the market, their business could suffer. Fortunately, the Debtors have been at the vanguard of innovation, which has been the cornerstone of their success to date. These challenges and risks within the EPC market alone did not drive the Debtors in to Chapter 11. The filing of the Bankruptcy Cases was precipitated by the Debtors’ dealings with Targa Resources, LLC and its affiliates on various EPC projects, as more fully explained below.

A. Channelview Project

As of April 15, 2016, KPE LP and Targa Terminals, LLC, an affiliate of Targa Resources, LLC (Targa Terminals, LLC, Targa Resources, LLC, and all other affiliates of Targa Resources, LLC are referred to collectively and individually as “Targa”) entered into that certain Agreement for Engineering, Procurement and Construction, as amended, (the “Channelview Agreement”) pursuant to which KPE LP agreed to design and construct a crude oil splitter plant (the “Channelview Project”) as more fully described in the Channelview Agreement. KPE LP achieved


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substantial completion of the Channelview Project in 2018. Targa has not fully paid KPE LP the amounts Targa owes under the Channelview Agreement, holding approximately $6 million in retainage.5

Based on KPE LP’s books and records, after taking into consideration offsets and chargebacks, KPE LP believes the following subcontractors are either (i) Channelview Creditors that have filed Liens against the Channelview Project; or (ii) General Unsecured creditors holding Claims against Debtor KPE LP arising from the Channelview Project:

Person or Entity Approximate Claim Amount

Apache Industrial $168,700.15

BXS Insurance $11,211.00

Ean Services LLC $114.60

Gallop Contracting $183,015.00

Heat Recovery Corp. $22,109.38

Jeff McDaniel $84.44

Saulsbury Industries, Inc. $2,867,580.84

Smith & Loveless $488,620.50

Thermo Process Instruments LP $14,100.00

Tulsa Heaters Midstream $15,019.30

Vast Construction LLC $6,802.80

Yokogawa Corp. $226,264.00

Total $4,003,622.016

KPE LP asserts that the Channelview Retainage or other funds presently held by Targa are sufficient to pay all or substantially all of the unpaid Channelview Creditors Claims, including Saulsbury Industries, Inc. (“Saulsbury”). Saulsbury, however, contends that it is owed in excess of $22 million for its work on the Channelview Project. KPE LP disputes Saulsbury’s Claims and asserts that Saulsbury’s failure to comply with its contractual obligations on the Channelview Project caused, among other things, substantial delays. As a result of Saulsbury’s delays, Targa alleges that KPE LP is liable for liquidated and other damages for not completing the Channelview Project timely, among other things. KPE LP disputes Targa’s assertions and, alternatively, contends that any and all delays in construction were caused by Saulsbury. In the event it is determined that Targa is entitled to liquidated and/or other damages, Saulsbury is liable to KPE LP for those damages. Accordingly, the Debtors believe KPE LP has a valid Cause of Action against Saulsbury related to the Channelview Project.

5 Targa retained substantially less than the statutorily required 10%. 6 Pursuant to the Plan, the Debtors or the Liquidation Trustee, as applicable, reserve their rights to verify and object to any Claims of the Channelview Creditors.


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B. Joyce Project

Effective January 17, 2017, KPE LP and Targa Pipeline, entered into that certain Agreement for Engineering, Procurement and Construction (the “Joyce Agreement”) pursuant to which KPE LP designed, procured equipment, and constructed a 200 million cubic feet per day gas cryogenic processing plant (the “Joyce Project”) in Upton County, Texas. The Joyce Project was completed and is fully operational. All subcontractors and suppliers utilized during construction of the Joyce Plan have been paid. Despite the completion of the Joyce Project, however, KPE LP sustained a significant economic loss which detrimentally impacted its business.

C. Johnson Project

Effective August 3, 2017, KPE LP and Targa Pipeline entered into that certain Agreement for Engineering, Procurement and Construction, as amended (the “Johnson Agreement”) pursuant to which KPE LP agreed to design, procure equipment, and construct a 200 million cubic feet per day gas cryogenic processing plant (the “Johnson Plant”) in Midland County, Texas. However, when the Johnson Plant was near completion, Targa Pipeline stopped making payments to KPE LP under the Johnson Agreement. As a result of such non-payment, KPE LP was unable to pay its subcontractors and suppliers for the Johnson Project. Targa Pipeline also implemented certain change orders that impacted the design, completion timeline and cost of the Johnson Project, after which KPE LP engaged in discussions with Targa Pipeline regarding their nonpayment under the Johnson EPC Agreement. On August 3, 2018, Targa Pipeline terminated the Johnson Agreement and removed KPE LP from the job site. Targa Pipeline asserted that its termination was due to KPE LP’s failure to pay subcontractors and suppliers. KPE LP contends that Targa’s termination of the Johnson Agreement was wrongful and a breach of the Johnson Agreement. KPE LP also contends that, as a result of Targa’s delays, interference, and failure to comply with its promises and representations, Targa is liable to KP ELP for substantial damages. Accordingly, the Debtors believe KPE LP has a valid Causes of Action against Targa related to the Johnson Project.

August 24, 2018, Hancock Mechanical, LLC d/b/a Hancock Mechanical Welding & Fabrication (“Hancock”), one of the Johnson Creditors claiming a lien on the Johnson Project, filed a lawsuit in the District Court of Midland County, Texas, styled Cause No. CV54856, Hancock Mechanical, LLC v. Targa Pipeline Mid-Continent WestTex, LLC and KP Engineering, LP (the “Johnson Project Litigation”), seeking to foreclose on its alleged lien on the Johnson Project and judgment against KPE LP. Targa interpleaded approximately $10 million, and joined as third-party defendants all other Johnson Creditors and suppliers that, like Hancock, claimed that they had valid liens on the Johnson Project. KPE LP filed claims against Targa for breach of contract and fraud, among others. The third-party defendants filed claims against KPE LP seeking judgment for the amounts they claim they are owed for their work and materials provided on the Johnson Project. Finally, Targa filed cross-claims against KPE LP.

The Johnson Project and resulting litigation played a significant role in forcing the Debtors to seek Chapter 11 relief. KPE LP lacked the financial resources to continue funding the Johnson Project Litigation, and to satisfy the resulting judgments, if any. Thus, the Johnson Creditor Claims created a financial strain on the Debtors’ businesses and distracted the Debtors’ personnel from their day-to-day duties. All of this made it increasingly difficult for the Debtors to perform under their other EPC contracts and take on new projects.


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Based on KPE LP’s books and records, after taking into consideration offsets and chargebacks, the Debtors believe the following subcontractors are (i) Johnson Creditors that have filed Liens against the Johnson Project; or (ii) General Unsecured creditors holding claims against Debtor KPE LP arising from the Johnson Project and related Johnson Project Litigation:


American Supply Company $90,535.55

Pall Corporation $94,264.77

Baro Holdings $94,352.91

Belco Manufacturing Co. $19,850.00

Bounds Construction $1,875,009.65

Bowman Specialized Services $1,019,715.56

BWFS Industries $494,834.50

Chart Energy and Chemicals $181,350.00

Cherokee Integrations $172,681.50

C&J Equipment Manufacturing $24,634.50

CSI – Compressor Systems, Inc. $2,368,333.28

CPC Pumps International $172,741.45

Crawford Electric Supply $51,265.40

Credos Fabrications LLC $930,507.76

Dealers Electrical Supply Co. $955,445.67

Emerson Process Management $54,022.61

Everitt Industrial Supply $25,705.00

Falcon Technologies $56,077.95

Fisher Controls International $449,911.10

Gregg Industrial Insulators $2,502,256.52

Hancock Mechanical $2,553,445.65

Heatec $569,245.60

Hendrix Machinery LLC $20,259.38

Heat Transfer Equipment Co. $127,474.00

Innovative Industrial $407,780.76

Instrument Commissioning Group $2,860,420.55

CED Interstate Electric Co. $1,706,686.99

LCM Industries $176,545.50


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Long Industries $93,501.00

Maverick International $69,455.00

MRC Global $1,397,874.23

DXP Enterprises $17,078.78

New Gen Products LLC $168,107.27

Pierce Construction & Maintenance $992,354.04

PECOFacet $334,164.97

ROWC Energy Services $4,300,505.52

The Reynolds Company $3,006,602.74

S&S Energy Services $578,554.59

SCS Technologies $141,142.39

Sefton Steel $379,013.44

TII Logistics $1,637,700.00

Sunbelt Supply $112,530.84

TDW Services Inc. $155,236.90

GK Techstar LLC $49,631.48

Trinity Containers LLC $780,085.00

Turner Industries Group $4,197,193.60

Vessel Technology $174,340.50

Wholesale Electric Supply $387,656.03

York International Group $306,400.00

Zeeco Inc. $576,440.25

Total $39,910,992.687

D. Praxair Projects

1. Geismar SSU Project. Effective November 14, 2017, KPE LP and Praxair, Inc. (“Praxair”) entered into a Contract for Engineering, Procurement, Fabrication and Construction of a Syngas Separation Unit, as amended (the “Geismar SSU Agreement”) relating to the project located in Geismar, LA (the “Geismar SSU Project”). As more fully described in the Geismar SSU Agreement, KPE LP agreed to perform the work described therein and provide the materials, equipment and other things described therein and to provide field support services in connection

7 Pursuant to the Plan, the Debtors or the Liquidation Trustee, as applicable, reserve their rights to verify and object to any Claims of the Johnson Creditors.


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with the Geismar SSU Project.

After KPE LP performed some, but not all of the work and obligations arising under the Geismar SSU Agreement, disputes and disagreements arose between KPE LP and Praxair. To resolve the disputes, on or about July 30, 2019, KPE LP and Praxair entered into a Settlement Agreement, which provided for, inter alia, (a) Praxair to assume performance of KPE LP’s obligations set forth in the Geismar SSU Agreement (the “Assumed Work”); (b) Praxair to assume responsibility for payment of the subcontractors and suppliers listed in Exhibit “1” of the Settlement Agreement; (c) Praxair to release KPE LP from its obligations to perform the Assumed Work; and (d) KPE LP to provide Praxair with certain support to enable Praxair to perform the Assumed Work.

2. Geismar VI Project. Prior to the Petition Date, KPE LP and Praxair entered into a Contract for Engineering, Procurement, Fabrication and Construction, as amended (the “Geismar VI Agreement”) relating to another project located in Geismar, LA (the “Geismar VI Project”), which project has been completed. Praxair has not fully paid KPE LP the amounts owed under the Geismar VI Agreement and is holding approximately $1.341 million in retainage.

Based on KPE LP’s books and records, after taking into consideration offsets and chargebacks, the Debtors believe the following subcontractors are (i) Geismar VI Creditors that have filed Liens against the Geismar VI Project; or (ii) General Unsecured creditors holding claims against Debtors KPE LP arising from the Geismar VI Project:


A&B Group Inc. $107,724.00

Catalyst Handling Resources $233,192.33

DOW Chemical $175,365.67

Emerson Process Mgmt. $2,210.37

ISC $73,976.22

Turner $1,786,832.30

Zeochem LLC $222,588.30

Total $2,601,889.198

E. Summary

In addition to the Johnson Project Litigation, the Debtors have been embroiled in various litigation for the past several years. Because of these potential liabilities and the rising litigation costs, the Debtors voluntarily filed for Chapter 11 relief. The Debtors filed the Bankruptcy Cases in order to provide a method of controlling the costs associated with defending litigation and minimize the detrimental impact that such large claims could have on their businesses. Through

8 Pursuant to the Plan, the Debtors or the Liquidation Trustee, as applicable, reserve their rights to verify and object to any Claims of the Geismar VI Creditors.


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the Chapter 11 process, the Debtors ultimately believe that they will be able to (i) successfully reorganize their debts; (ii) maintain their financing relationship with Texas Capital Bank; and (iii) add significant value and revenue through new EPC projects to pay their creditors through a Plan of Reorganization. Specifically, the Debtors’ Plan seeks to implement a means for creditors to be paid a substantial percentage, if not all, of their Allowed Claims, while enabling the Debtors to emerge from Chapter 11 and focus on new projects without the undue burden of defending litigation on multiple fronts. Thus, the Plan represents the Debtors’ best chance to save their businesses and the livelihood of their employees.

VI. SIGNIFICANT EVENTS IN THE BANKRUPTCY CASES

A. Introduction

On the Petition Date – August 31, 2018 – the Debtors filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. Debtor KPE LP was assigned case number 19-34698. Debtor KPE LLC was assigned case number 19-34699. The Bankruptcy Cases have been consolidated for procedural purposes only and are being jointly administered under KPE LP’s case number 19-36498 pursuant to Bankruptcy Rule 1015(b). The Debtors remain in possession of their property and continue to manage their assets as debtors in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. A brief summary of significant matters or events that have occurred to date in the Bankruptcy Cases is set forth below. The description of such matters or events is qualified in its entirety by the actual pleadings Filed in the Bankruptcy Cases and, to the extent of any inconsistencies between the descriptions in this Disclosure Statement and such pleadings, such pleadings shall control. All of such pleadings are on File with, and may be obtained from, the Bankruptcy Court.

B. Debtor in Possession Financing and Cash Collateral

On August 23, 2019, the Debtors Filed their Emergency Motion for Entry of an Order (I)Authorizing Debtor to (A) Obtain Postpetition Financing on a Secured, Superpriority Basis and (B) Use Cash Collateral, (II) Granting Adequate Protection, (III) Scheduling a Final Hearing, and (IV) Granting Related Relief [Doc. No. 10] (the “DIP Financing Motion”), which requested approval of a Debtor in Possession Secured Promissory Note between the Debtor and DIP Lender and the proposed $4 million DIP Facility. Exhibit B [Doc. No. 10-2] to the DIP Financing Motion provides a summary of the original DIP Facility proposal and also adds some supporting detail regarding the prepetition transactions that resulted in the outstanding balance owed to Texas Capital Bank under the Prepetition Loan Documents as of the Petition Date:


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The Bankruptcy Court held a hearing on the DIP Financing Motion on August 26, 2019. At the hearing, the Bankruptcy Court did not approve the DIP Financing Motion and directed the parties to negotiate a new limited agreed order. As a result of these negotiations, the parties agreed that BTS Enterprises, the proposed DIP Lender, would inject $500,000.00 as an equity contribution into the Debtors to fund payroll and operations. In addition, TCB agreed that the Debtors could use cash collateral on an interim basis. Further, Douglas J. Brickley was appointed as Chief Restructuring Officer of the Debtors. On August 28, 2019, the Bankruptcy Court entered its Agreed Interim Order (I) Authorizing Use of Cash Collateral and (II) Providing Adequate Protection [Doc. No. 61].

The Bankruptcy Court held another interim hearing on the DIP Financing Motion on September 9, 2019. On September 11, 2019, the Bankruptcy Court entered its Second Agreed Interim Order (I) Authorizing Use of Cash Collateral and (II) Providing Adequate Protection [Doc. No. 124]. The Bankruptcy Court also continued the hearing on the DIP Financing Motion to September 16, 2019. Meanwhile, substantive negotiations between the Debtors, the Chief Restructuring Officer, the DIP Lender, TCB, and the Committee, continued and certain interim agreements were reached.

The Bankruptcy Court held the third interim hearing on the DIP Financing Motion on September 16, 2019. On September 17, 2019, the Bankruptcy Court entered its Third Agreed Interim Order (I) Authorizing Debtor to (A) Obtain Postpetition Financing on a Secured, Superpriority Basis and (B) Use Cash Collateral, (II) Granting Adequate Protection, (III) Scheduling a Final Hearing, and (IV) Granting Related Relief [Doc. No. 144].

On October 4, 2019, the Bankruptcy Court Entered its Fourth Agreed Interim Order (I) Authorizing Debtor to (A) Obtain Postpetition Financing on a Secured, Superpriority Basis and (B) Use Cash Collateral, (II) Granting Adequate Protection, (III) Scheduling a Final Hearing, and (IV) Granting Related Relief [Doc. No. 182].


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Finally, on October 23, 2019, the Bankruptcy Court entered its Final Order (I) Authorizing Debtor to (A) Obtain Postpetition Financing on a Secured, Superpriority Basis and (B) Use Cash Collateral, (II) Granting Adequate Protection, and (III) Granting Related Relief [Doc. No. 235], which approved the Debtor in Possession Secured Promissory Note between the Debtors and DIP Lender and authorized Debtor KPE LP to obtain post-petition secured financing in the amount of $1,750,000 in order to fund ongoing operations during the Bankruptcy Cases.

C. Formation of the Committee and Initiation of Committee Litigation

On September 6, 2019, the United States Trustee Filed its Notice of Appointment of Official Committee of Unsecured Creditors [Doc. No. 108]. As set forth therein, the Committee consists of (i) Targa Pipeline; (ii) Saulsbury Industries; (iii) Turner Industries; (iv) Tetra Technologies; and (v) Dealers Electric Supply Co. The Committee promptly retained counsel and a financial advisor.

On November 4, 2019, the Bankruptcy Court entered its Order Authorizing Employment

of Foley Gardere, Foley & Lardner LLP as Counsel to the Official Committee of Unsecured Creditors of KP Engineering, LP Et Al. [Doc. No. 256] and its Order Authorizing Employment and Retention of Alvarez & Marsal North America, LLC as Financial Advisor Nunc Pro Tunc to September 12, 2019 [Doc. No. 257].

The Committee has been an active participant in the Bankruptcy Cases and has conducted

in-depth investigations into the Debtors’ prepetition financial history and transactions through Bankruptcy Rule 2004 examinations and discovery requests. On January 3, 2020, counsel for the Committee sent correspondence to counsel for the Debtors demanding that the Debtors promptly consent and convey standing to the Committee to investigate, commence and prosecute potential claims and Causes of Action as to certain Persons or Entities that are Insiders of the Debtors and that allegedly received transfers from the Debtors that the Committee believes were fraudulent or otherwise avoidable under the provisions of the Bankruptcy Code and other applicable law. As part of their ongoing negotiations with the Committee regarding their restructuring efforts, the Debtors ultimately agreed to convey standing to the Committee to bring Causes of Action held by the Debtors’ Estates against those certain insiders identified in the Committee’s letter, and the Bankruptcy Court entered an order [Doc. No. 399] reflecting the same.

On February 4, 2020, the Committee commenced that certain Committee Litigation against

various insiders and transferees of the Debtors. Specifically, the adversary proceedings commenced by the Committee are styled (1) Official Committee of Unsecured Creditors on Behalf of KP Engineering, LP and KP Engineering, LLC v. Brandon T. Steele, et. al., Case No. 20-03035 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division; and (2) Official Committee of Unsecured Creditors on Behalf of KP Engineering, LP and KP Engineering, LLC v. Texas Capital Bank, National Association, Case No. 20-03030 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. The Committee Litigation remains pending. As more fully explained herein, the Debtors’ Plan proposes that, except with respect to the adversary proceeding against TCB, the Committee Litigation will be placed into the KP Engineering Liquidation Trust for a Liquidation Trustee to prosecute for the benefit of General Unsecured creditors holding Allowed Claims in Class 7. D. Schedules and Statements of Financial Affairs


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The Debtors Filed their Schedules and Statement of Financial Affairs with the Bankruptcy Court on October 8, 2019. [Doc. Nos. 191, 192, 193 and 194]. Amended Schedules were Filed on January 17, 2020. [Doc. Nos. 373 and 374].

E. Retention and Compensation of Professionals by the Debtors

Prior to the Petition Date, Okin Adams LLP was retained as general bankruptcy counsel to Debtor KPE LLC. Okin Adams’ engagement as general bankruptcy counsel was later expanded after the Petition Date to include representation of Debtor KPE LP. On November 13, 2019, the Bankruptcy Court entered an Amended Order Authorizing the Employment and Retention of Okin Adams LLP as Counsel to the Debtors [Doc. No. 272].

Prior to the Petition Date, Hunton Andrews Kurth LLP was retained as general bankruptcy counsel to Debtor KPE LP. Hunton Andrews Kurth’s engagement was later modified after the Petition Date to be special counsel to Debtor KPE LP pursuant to section 327(e) of the Bankruptcy Code. On November 12, 2019, the Bankruptcy Court entered its Order Granting Application for Entry of an Order Authorizing the Employment and Retention of Hunton Andrews Kurth LLP as Special Counsel for Debtor and Debtor in Possession KP Engineering, LP [Doc. No. 271].

The Debtors retained Douglas J. Brickley as Chief Restructuring Officer and The Claro Group, LLC to provide certain financial and restructuring-related services. On November 4, 2019, the Bankruptcy Court entered an Order Authorizing the Retention of The Claro Group, LLC to (I) Provide KP Engineering, LP a Chief Restructuring Office and the Debtors Certain Additional Personnel and (II) Designate Douglas J. Brickley as Chief Restructuring Officer of KP Engineering, LP Nunc Pro Tunc to August 23, 2019 [Doc. No. 258].

On January 14, 2020, the Bankruptcy Court entered an Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals [Doc. No. 369], pursuant to which all of the Debtors’ professionals and the Committee’s professionals employed under sections 327 or 1103 of the Bankruptcy Code may seek interim compensation for services rendered and reimbursement of expenses incurred from the Petition Date through the Confirmation Date by submitting monthly fee statements to the Debtors for payment, and by Filing interim fee applications with the Bankruptcy Court. All fees and expenses paid to professionals are subject to disgorgement until final allowance by the Bankruptcy Court.

F. Section 341 Meeting of Creditors

The meeting of creditors pursuant to section 341 of the Bankruptcy Code occurred on October 15, 2019.

G. Bar Dates

On August 30, 2019, the Debtors’ claims and noticing agent, Omni Agent Solutions, served a copy of the Notice of Chapter 11 Bankruptcy Case to the Debtors’ creditors [See Doc. No. 104]. Among other things, the Notice established January 13, 2020, as the deadline for filing Claims against the Debtors by all creditors (not including Governmental Units), and February 19, 2020 as the deadline for Filing Claims against the Debtors by all Governmental Units.


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The Bankruptcy Court has not yet established a bar date for the Filing of Administrative Expense Claims in the Bankruptcy Cases, but it is expected that such bar date will be set forth in order approving this Disclosure Statement or the Confirmation Order.

H. Aviation Sale Proceeds

After the Petition Date, BTS Aviation, LLC sold its 2009 Cessna Citation CJ3 525B-327 airplane to C3 Air, LLC and Southland Amusements & Vending, Inc. for $4,000,000.00. After the payment of transaction expenses and the amount necessary to satisfy PNC Equipment Finance, LLC’s lien against the airplane, the net Aviation Sale Proceeds available to BTS Aviation was approximately $1,145,106.62. At the time of the sale, KPE LP and the Committee (i) raised concerns that the prepetition distribution of the membership interests of BTS Aviation from KPE LP to BTS Enterprises may be avoidable as a fraudulent transfer and (ii) demanded that the Aviation Sale Proceeds be held by KPE LP. BTS Aviation agreed to allow KPE LP to hold the Aviation Sale Proceeds in its Debtor in Possession bank account during the pendency of the Bankruptcy Cases. I. Office Leases

During the Bankruptcy Cases, the Debtors’ unexpired leases with Steel Resources and Kvaerner for office space in Tulsa, Oklahoma and Houston, Texas, respectively, expired by their own terms. The Debtors also made the determination to reject the unexpired lease with KPE Realty II for a facility in Tyler, Texas. The Debtors have determined that the unexpired lease with KPE Realty for a separate office facility in Tyler, Texas is necessary for their reorganization efforts going forward. Accordingly, the Debtors will seek to assume the unexpired lease with KPE Realty under the terms of the Plan.

During the Bankruptcy Cases, the Debtors also determined that maintaining an office in

Houston, Texas served an important function and would be necessary for their reorganization prospects. As a result, on January 29, 2020, the Debtors Filed an Emergency Motion for Entry of Order Authorizing the Debtors to Enter into a Lease Agreement With Rosemont Kirkwood Tower Operating LLC in the Ordinary Course of Business [Doc. No. 393], seeking Bankruptcy Court approval to enter into a new office lease directly with the landlord as a replacement for the expiring sub-lease with Kvaerner. On January 30, 2020, after notice and hearing, and notwithstanding objections from the Committee [Doc. No. 335], the Bankruptcy Court entered its Order Granting Debtors’ Emergency Motion for Entry of Order Authorizing the Debtors to Enter into a Lease Agreement With Rosemont Kirkwood Tower Operating LLC in the Ordinary Course of Business [Doc. No. 401]. The new office lease has a thirty-six (36) month term, base monthly rent payments of $15,454.63, and a ninety (90) day termination option.

J. Removal of Prepetition Litigation to the Bankruptcy Court

After the Petition Date, the Johnson Project Litigation was removed to the United States District Court for the Western District of Texas. That Court transferred the case to the United States District Court for the Southern District of Texas and it was then referred to the Bankruptcy Court. The Johnson Litigation is now pending in the Bankruptcy Court as Adv. No. 19-03707. On February 4, 2020, the Bankruptcy Court entered that certain Order For Briefing and Hearing establishing a schedule for all interested parties to submit brief regarding lien validity and priority


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issues. The Debtors have also removed certain other prepetition litigation to the Bankruptcy Court, including Smith & Loveless, Inc. v. Brandon Steele, et al., Cause No. 2019-61414 in the 129th Judicial District Court of Harris County, Texas.

VII. SUMMARY OF THE PLAN

A. Introduction

Chapter 11 is the principal business reorganization chapter of the Bankruptcy Code. Under Chapter 11, a debtor is authorized to reorganize and/or liquidate its business for the benefit of itself and its creditors and stockholders. The formulation of a plan is the principal objective of a Chapter 11 bankruptcy case. In general, a Chapter 11 plan: (i) divides claims and equity interests into separate classes; (ii) specifies the property each class is to receive under such plan; and (iii) contains other provisions necessary to the reorganization and/or liquidation of the debtor. Chapter 11 does not require each holder of a claim or equity interest to vote in favor of the plan in order for the bankruptcy court to confirm the plan. A plan must be accepted, however, by the holders of at least one impaired class of claims (unless there are no impaired classes) without considering the votes of “insiders” (within the meaning of section 101(31) of the Bankruptcy Code) in that impaired class.

The summary of the Plan contained herein addresses only certain provisions of the Plan. As a summary, it is qualified in its entirety by reference to the Plan itself (including the Plan Documents and Exhibits which are referred to therein). The Plan (including the Plan Documents and Exhibits) shall control and, upon Confirmation and the Effective Date, bind the Debtors, the Reorganized Debtors, all Holders of Claims and Interests and other parties in interest except as expressly set forth in the Plan. TO THE EXTENT THAT THE TERMS OF THIS DISCLOSURE STATEMENT VARY OR CONFLICT WITH THE TERMS OF THE PLAN, THE TERMS OF THE PLAN SHALL CONTROL.

The Plan Documents (i.e., all documents that aid in effectuating the Plan) will be Filed with the Bankruptcy Court at least ten (10) days prior to the Voting Deadline (unless already on File with the Bankruptcy Court or attached as Exhibits to the Plan or this Disclosure Statement) provided, however, that the Debtors may amend the Plan Documents through and including the Confirmation Date. Upon their Filing with the Bankruptcy Court, the Plan Documents may be obtained from: (i) the Clerk’s Office during normal business hours; (ii) the Bankruptcy Court’s copying service upon the payment of the appropriate charges; (iii) the Debtors’ bankruptcy counsel upon written request; or (iv) the website maintained by the Debtors’ notice and claim agent, Omni Agent Solutions, at: https://cases.omniagentsolutions.com.

B. General Overview of the Plan

The Debtors have Filed the Plan with the Bankruptcy Court. As more fully set forth in the Plan, the Plan provides for distributions to Holders of Allowed Claims and Interests from: (i) unencumbered Cash from operations, (ii) Cash from certain Aviation Sale Proceeds, (iii) Cash from certain Exit Financing provided to the Reorganized Debtors, (iv) any proceeds or net recoveries under Retained Causes of Action, and (v) the liquidation of the KP Engineering Liquidation Trust Assets, including proceeds or net recoveries from certain Committee Litigation, Avoidance Actions or other Causes of Action belonging to the KP Engineering Liquidation Trust.


https://cases.omniagentsolutions.com/

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The Plan shall be implemented on the Effective Date. At the present time, and subject to the negotiation and finalization of the Exit Financing Documents, the Debtors believe that there will be sufficient funds, as of the Effective Date, to pay in full the expected payments required under the Plan to Holders of Allowed Administrative Expense Claims and Holders of Allowed Priority Non-Tax Claims in Class 1. The Holders of the Class 8 Equity Interests will not receive any distribution but will retain their Equity Interests under the Plan. Classes 2 through 8 are Impaired under the Plan, and will receive distributions on the Effective Date, or at such other time as the Reorganized Debtors or Liquidation Trustee make distributions in accordance with their respective treatment under the Plan and Liquidation Trust Agreement.

As more fully set forth herein, and as described in the Plan, the Liquidation Trust Agreement, and other Plan Documents, the Plan calls for the creation of the KP Engineering Liquidation Trust to prosecute those certain Causes of Action constituting the Liquidation Trust Assets for the benefit of General Unsecured creditors holding Allowed Claims in Class 7, which, for the avoidance of doubt includes Unsecured Claims to the extent a Holder of a Claim in Classes 3, 4, 5, and 6 has a deficiency Claim. The Debtors understand that the Committee has investigated and analyzed the proposed Liquidation Trust Assets and that the Committee believes the orderly liquidation of the Liquidation Trust Assets will generate amounts sufficient to pay Class 7 Claims in full. The Debtors do not opine on the percentages of the total Allowed General Unsecured Claims in Class 7 that will be paid.

C. Classification of Claims and Equity Interests

Section 1123 of the Bankruptcy Code provides that a plan of reorganization shall classify the claims of a debtor’s creditors and interests of a debtor’s equity holders. The Plan divides the Claims and Equity Interests into eight (8) Classes. 11 U.S.C. § 1123(a)(1).

Section 101(5) of the Bankruptcy Code defines “claim” as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured,” or a “right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, disputed, undisputed, secured or unsecured.” 11 U.S.C. § 101(5). The Debtors are required, under section 1122 of the Bankruptcy Code, to classify the Claims and Equity Interests into separate Classes which contain Claims and Equity Interests that are substantially similar to the other Claims and Equity Interests within such Class. 11 U.S.C. § 1122(a).

The Debtors believe that they have classified all Claims and Equity Interests in compliance with the provisions of section 1122 of the Bankruptcy Code. It is possible, however, that a Holder of a Claim or another interested party may challenge the classification of Claims and Equity Interests contained in the Plan and that the Bankruptcy Court may find that a different classification is required for the Plan to be confirmed. In such event, it is the present intent of the Debtors, to the extent permitted by the Bankruptcy Court, to make such reasonable modifications of the classifications under the Plan to provide for whatever classification might be required by the Bankruptcy Court for Confirmation and to use the Plan acceptances received in this solicitation for the purpose of obtaining the approval of the Class or Classes of which the accepting Holder is ultimately deemed to be a member. Any such reclassification could adversely affect the Class in which such Holder was initially a member, or any other Class under the Plan, by changing the


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composition of such Class and the vote required of that Class for approval of the Plan. A reclassification of Claims after approval of the Disclosure Statement might necessitate a re-solicitation of acceptances or rejections of the Plan.

D. Administrative Claims and Priority Claims

In accordance with Bankruptcy Code section 1123(a)(1), Administrative Claims, Professional Compensation Claims, the DIP Loan Claim, and Priority Tax Claims are not classified for purposes of voting on, or receiving distributions under, the Plan, and the treatment of the Claims is set forth herein. Holders of Allowed Administrative Expense Claims are not entitled to vote on the Plan.

The Holders of Allowed Administrative Expense Claims are entitled to be paid in full under

a plan of reorganization pursuant to the Bankruptcy Code. The Debtors believe that the Administrative Expense Claims will consist primarily of post-petition operating expenses incurred by the Debtors, the DIP Loan Claim, fees and costs of Professionals, fees required to be paid to the United States Trustee, the costs of solicitation of votes on the Plan (including photocopying and postage charges), and any Administrative Expense Claims Filed with the Bankruptcy Court by the Administrative Claim Bar Date, in each of the foregoing cases as Allowed by a Final Order of the Bankruptcy Court or as otherwise provided in the Plan.

1. Administrative Claims. Unless otherwise agreed to by the Holder of an Allowed

Administrative Claim and the Reorganized Debtors, each Holder of an Allowed Administrative Claim (other than Holders of Professional Compensation Claims, the DIP Loan Claim, and Claims for fees and expenses pursuant to section 1930 of chapter 123 of title 28 of the United States Code) will receive in full and final satisfaction of its Administrative Claim an amount of Cash, including Cash from Aviation Sale Proceeds, equal to the amount of such Allowed Administrative Claim in accordance with the following: (i) if an Administrative Claim is Allowed on or prior to the Effective Date, on the Effective Date or as soon as reasonably practicable thereafter; or (ii) if such Administrative claim is not Allowed as of the Effective Date, no later than ten (10) days after the date on which an order allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter. Notwithstanding anything contained in this Article, the Debtors shall, continue paying their employees, utilities, insurance finance premiums, and other workforce and insurance obligations in accordance with the Bankruptcy Court’s orders and approved practices. [Doc. Nos. 40, 48, 49, 51 and 52]. For the avoidance of doubt, to the extent a Holder of an Administrative Claim is not being paid by the Debtors in the ordinary course, such Holder must File a request for payment of such Administrative Claim by the Administrative Claim Bar Date as set forth below.

Except for Professional Compensation Claims, and unless previously Filed, requests for

payment of Administrative Claims must be Filed and served on the Reorganized Debtors no later than the Administrative Claim Bar Date. Objections to such requests must be Filed and served on the Reorganized Debtors and the requesting party by the later of (i) thirty (30) days after the Effective Date; or (ii) thirty (30) days after the Filing of the applicable request for payment of the Administrative Claims, if applicable. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts, if any, of Administrative Claims shall be determined by, and satisfied in accordance with a Final


25

Order of, the Bankruptcy Court. Holders of Administrative Claims that are required to File and serve a request for such

payment of such Administrative Claims that do not File and serve such request by the Administrative Claim Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Claims against the Reorganized Debtors or their property, and such Administrative Claims shall be deemed discharged as of the Effective Date without the need for any objection from the Reorganized Debtors or any action by the Bankruptcy Court.

2. DIP Loan Claim. Pursuant to the Final DIP Loan Order, the DIP Loan Claim is held by Texas Capital Bank, as assignee of BTS Enterprises, in accordance with the terms of that certain Collateral Assignment of Note. The DIP Loan Claim shall be Allowed in an amount equal to the amount of such DIP Loan Claim accrued or incurred as of the Effective Date, without setoff, deduction or counterclaim, subject to the provisions of the Interim DIP Loan Order, Final DIP Loan Order, DIP Facility Documents, and this Plan. On the Effective Date, except to the extent that the Holder of the Allowed DIP Loan Claim agrees to a less favorable treatment, the Allowed DIP Loan Claim shall be refinanced and converted into Exit Financing which, in addition to the New Liquidity Facility, shall consist of a $3.25 million post-petition term loan facility pursuant to the terms and conditions of the applicable Exit Financing Documents to be executed between Debtor KPE LP, the DIP Lender, and TCB.

As more fully set forth in Article IV.E – Exit Financing, below, in accordance with the Exit

Financing Documents, and in exchange for the mutual promises and covenants therein, BTS Enterprises shall fund the Reorganized Debtors’ ongoing post-Confirmation operations and expenses through and including the Effective Date. The Exit Financing that is actually funded from the Confirmation Date through and including the Effective Date shall be included in the DIP Loan Claim and subject to all terms and conditions, and secured by the same DIP Liens and security interests, that are provided in the Final DIP Loan Order and other DIP Facility Documents. Specifically, TCB, as assignee of the DIP Loan Claim from BTS Enterprises pursuant to the Final DIP Loan Order and that certain Collateral Assignment of Note, shall retain its second priority DIP Liens (subordinated only to the TCB Secured Claim) and security interest in, to and against the applicable collateral for all amounts relating to its DIP Loan Claim. The DIP Loan Claim shall mature and be payable to the DIP Lender in accordance with the terms and conditions of the applicable Exit Financing Documents between Debtor KPE LP and BTS Enterprises.

3. Professional Compensation Claims. A summary of Professional Compensation Claims is as follows:

Claimant Estimated Unpaid Fees and Expenses Through

[_____], 2020

Douglas J. Brickley – Chief Restructuring Officer for the Debtors

$

Okin Adams LLP – Counsel for the Debtors $


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Claimant Estimated Unpaid Fees and Expenses Through

[_____], 2020

The Claro Group – Financial Advisor to the Debtors

$

Hunton Andrews Kurth LLP – Special Counsel to Debtor KP Engineering, LP

$

Foley Gardere, Foley & Lardner LLP – Counsel to the Committee

$

Alvarez & Marsal North America, LLC – Financial Advisor to the Committee

$

All requests for payment of Professional Compensation Claims for services rendered and

reimbursement of expenses incurred prior to the Effective Date must be Filed no later than the Professional Compensation Claim Bar Date. Objections to Professional Compensation Claims must be Filed and served on the Reorganized Debtors and the Professional to whose application the objections are addressed no later than the Professional Compensation Claim Objection Deadline. The Bankruptcy Court shall determine the Allowed amounts of such Professional Compensation Claims after notice and hearing in accordance with the procedures established by the Bankruptcy Court. Allowed Professional Compensation Claims shall be paid by the Reorganized Debtors in Cash, including Cash from Aviation Sale Proceeds, within ten (10) days of the entry of a Final Order allowing such Claims.

4. U.S. Trustee Quarterly Fees. The fees required to be paid to the United States Trustee pursuant to 28 U.S.C. §1930(a)(6) for the periods prior to the Effective Date also constitute Administrative Expense Claims. The Plan provides that all unpaid fees and charges assessed against the Estates under Chapter 123 of title 28, United States Code, 28 U.S.C. §§ 1911-1930, for any calendar quarter (or portion thereof) ending prior to the Effective Date shall be paid to the United States Trustee on the Effective Date, or as soon as reasonably practicable thereafter. The Estates shall be responsible for timely payment of the United States Trustee quarterly fees incurred pursuant to 28 U.S.C. §1930(a)(6) without the need for the Office of the United States Trustee to file any request for payment.

Following the Effective Date, any fees required to be paid to the United States Trustee,

pursuant to 28 U.S.C. §1930(a)(6) shall be paid by the Reorganized Debtors, until the earlier of (i) the closing of the Bankruptcy Cases by the issuance of a final decree by the Bankruptcy Court, or (ii) the entry of a Final Order by the Bankruptcy Court dismissing the Bankruptcy Cases or converting the Bankruptcy Cases to another chapter under the Bankruptcy Code. Any such payment to the United States Trustee shall be in the appropriate sum required pursuant to 28 U.S.C. §1930(a)(6) based upon the applicable disbursements for the relevant period and shall be made within the time period set forth in 28 U.S.C. §1930(a)(6).

5. Allowed Priority Tax Claims. Except (a) to the extent that the Holders of Allowed


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Priority Tax Claims have not already been paid, satisfied or otherwise released prior to the Effective Date, and (b) to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, then in full and final satisfaction, settlement, release, and discharge of, and in exchange for each Allowed Priority Tax Claim, each Holder of Allowed Priority Tax Claim shall receive from the applicable Reorganized Debtor on the later of (i) the Effective Date; (ii) the date such Priority Tax Claim becomes an Allowed Claim; (iii) the date on which such Allowed Priority Tax Claim first becomes due and payable; or (iv) as soon thereafter as is reasonably practicable, an amount in Cash, including Cash from Aviation Sale Proceeds, equal to the unpaid amount of such Allowed Priority Tax Claim; provided, however, that the applicable Reorganized Debtor shall have the right to pay any Allowed Priority Tax Claim, or the remaining balance of such Claim, in full in Cash at any time on or after the Effective Date, without premium or penalty.

E. Summary of Plan Classifications

Set forth below is a summary of each Class of Claims and Equity Interests and the expected distributions under the Plan to Holders of Allowed Claims against and Allowed Equity Interests in the Debtors. Estimates of Claims set forth in this Disclosure Statement, if any, are approximate and are based on amounts to be scheduled by the Debtor in their Schedules. Except as otherwise specifically provided in Article VIII of the Plan, the treatment of, and the consideration to be received by, Holders of Allowed Claims and Interests pursuant to the Plan shall be in full and final satisfaction, settlement, release, extinguishment and discharge of their respective Allowed Claims (of any nature whatsoever) and Allowed Equity Interests.

1. Allowed Priority Non-Tax Claims.

Description. Class 1 consists of Claims asserted under Bankruptcy Code sections 507(a)(3-7 and 9-10).

Treatment. Except to the extent that a Holder of an Allowed Priority Non-Tax Claim agrees to a less favorable treatment, each Holder of an Allowed Priority Non-Tax Claim shall receive, on or after the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Priority Non-Tax Claim, (i) payment in full in Cash of its Allowed Class 1 Claim; or (ii) such other treatment as is consistent with the requirements of Bankruptcy code section 1129(a)(9).

Voting. Class 1 is Unimpaired under the Plan. Holders of Allowed Claims in Class 1 are not entitled to vote to accept or reject the Plan.

2. Allowed Texas Capital Bank Secured Claim.

Description. Class 2 consists of the TCB Secured Claim against the Debtors.

Treatment. On the Effective Date, except to the extent Texas Capital Bank agrees to a less favorable treatment, the principal balance, fees and interest of the TCB Secured Claim shall be refinanced and converted into a post-petition term loan pursuant to the terms and conditions of the applicable Exit Financing Documents. As more fully set forth in the Exit Financing Documents, and notwithstanding anything to the contrary therein, payment of the Allowed TCB Secured Claim in Class 2 shall consist of the following:


28

(i) Monthly principal and interest payments based on a sixty (60) month amortization schedule.

(ii) On May 1st of each calendar year after the Effective Date (or, if May 1st is not a Business Day, then the first Business Day thereafter), an annual principal payment equal to seventy-five percent (75%) of the prior year’s excess cash flow of KPE LP, as such excess cash flow may be calculated and determined by the Exit Financing Documents.

(iii) To the extent any portion of the Allowed TCB Secured Claim remains unsatisfied

after payment of the foregoing, such Holder of the Allowed TCB Secured Claim shall receive all remaining principal upon the first Business Day that is the twenty-fourth (24th) month after the Effective Date.

(iv) The Class 2 Claim may be paid, purchased or refinanced by BTS Enterprises, Brandon Steele or any related Entity at any time following closing on terms acceptable to TCB.

As more fully set forth in the Exit Financing Documents, and notwithstanding anything to

the contrary therein, the Exit Financing shall be secured by, among other things, the assets of the Reorganized Debtors, and TCB shall have and retain its first priority lien and security interest in, to and against such collateral for all amounts relating to the Prepetition Loan Documents and the Allowed TCB Secured Claim. All of TCB’s liens granted in the Prepetition Loan Documents shall relate back to the date of their original perfection, without interruption, and without regard to applicable federal, state or local filing and recording statutes, nunc pro tunc, as of the date of Confirmation of the Plan. The current assumption is for the Debtors to emerge from Chapter 11 with an Effective Date of May 31, 2020. The first principal payment would occur by June 30, 2020 (at the end of the quarter post-emergence).

On the Confirmation Date, and in consideration of (i) the undertaking set forth herein; (ii) the agreement to provide Exit Financing; (iii) the release of Liens on the Aviation Sale Proceeds; (iv) the subordination of its Liens to any validly, timely and properly obtained Liens in the Channelview Retainage, the Geismar VI Retainage, and Johnson Interpleaded Funds and the retention of any first Lien in the Debtors’ interest in those funds; and (v) other good and valuable consideration, the Debtors shall automatically and forever remise, release and discharge TCB and each of its subsidiaries and affiliates, corporations, companies, divisions, predecessors, successors and assigns and each and all of their directors, officers, employees, attorneys, accountants, consultants and other agents, of and from any and all claims, demands, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, costs, expenses, accounts, damages, judgments, losses and liabilities of whatever kind or nature, in law, equity or otherwise, whether known or unknown, whether or not concealed or hidden, which they have had, may have had, or now have, or which any of their predecessors, successors or assigns hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, whenever arising to and including the Confirmation Date, including, but without limitation, any and all claims or causes of action which were or might have been asserted in the Bankruptcy Cases, or any adversary proceeding that may be commenced or may have been commenced in connection therewith, including any right to surcharge the collateral of TCB under section 506(c) of the Bankruptcy


29

Code. The release shall be immediately effective upon Confirmation of the Plan, without the necessity of any further act and shall be binding upon the Debtors and all of their subsidiaries, affiliates, trustees, receivers, managing agents, disbursing agents, and any subsequent Chapter 7 or Chapter 11 trustee that may be appointed in these Bankruptcy Cases. For the avoidance of all doubt, and notwithstanding anything to the contrary in this this Plan, the foregoing release provisions specifically apply to any Committee Litigation that has been, or could have been, initiated against TCB by the Committee during the Bankruptcy Cases pursuant to the Bankruptcy Court’s order [Doc. No. 399] and to the Lienholder Litigation. Within five (5) Business Days of the Confirmation Date, the Committee Litigation and Lienholder Litigation against TCB shall be dismissed with prejudice to refiling.

Voting. Class 2 is Unimpaired under the Plan. Holders of Allowed Claims in Class 2 are

not entitled to vote to accept or reject the Plan.

3. Allowed Other Secured Claims.

Description. Class 3 consists of Secured Claims that are not DIP Loan Claims, TCB Secured Claims, or Secured Tax Claims.

Treatment. On or after the Effective Date, and except to the extent that a Holder of an Allowed Other Secured Claim agrees to a less favorable treatment, each Holder of an Allowed Other Secured claim shall receive, in fully and final satisfaction, compromise, release, and discharge of and in exchange for each Other Secured Claim, the following:

(i) As relates to any collateral (other than TCB’s collateral) that is subject to a prepetition agreement and that has not been sold or surrendered during the Bankruptcy Cases, the Debtors shall, solely as relates to such collateral, remain bound by and perform in accordance with the applicable agreement, including, but not limited to, making such payments as remain outstanding under the respective agreements in accordance with the terms and conditions thereof; provided, however, that the maturity of such prepetition agreements shall be extended as set forth in the Exhibits to this Plan, which additional payments shall be made as cure for any payments not made by the Debtors. For the avoidance of doubt, any Lien granted in or to the respective Holder’s collateral pursuant to the respective agreement shall be retained by, and for the benefit of, such Holder of an Allowed other Secured Claim in Class 3, subject to TCB’s Liens arising from the TCB Secured Claim and/or the Exit Financing.

(ii) Except as provided in the Plan with respect to the Aviation Sale Proceeds, as relates

to any collateral that has been sold pursuant to a Bankruptcy Court order during the Bankruptcy Cases, (x) a secured claim in the amount of such sale proceeds, which shall be paid in accordance with the applicable Bankruptcy court order, and (y) a deficiency claim, which shall be treated as a General Unsecured Claim in Class 7.

(iii) For purposes of voting and Confirmation, each Other Secured Claim shall be classified in separate subclasses within Class 3 – i.e. 3(a); 3(b); 3(c); etc.


30

Voting. Class 3 is Impaired under the Plan. Holders of Allowed Claims in Class 3 are entitled to vote to accept or reject the Plan.

4. Allowed Johnson Creditor Claims.

Description. Prior to the Petition Date, the Debtors were involved in the Johnson Project Litigation with all, or substantially all, of the Johnson Creditors, the owner of the Johnson Project, Targa Pipeline, and Brandon Steele. Class 4 consists of the Allowed Johnson Creditor Claims against the Debtors arising from the Johnson Project and related Johnson Project Litigation.

Treatment. On the Effective Date, and except to the extent that a Holder of an Allowed Johnson Creditor Claim agrees to a less favorable treatment, each Holder of an Allowed Johnson Creditor Claim will receive, receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 4 Claim, the following treatment under the Plan:

(i) Upon (a) the settlement of the Johnson Project Litigation or (b) entry of a final order in the Johnson Project Litigation, the Johnson Interpleaded Funds will be distributed to Holders of Allowed Johnson Creditor Claims pursuant to the terms of such settlement or final order. The Plan shall not alter the rights, if any, of any of the Johnson Creditors (x) as to the Johnson Interpleaded Funds or (y) against Targa Pipeline or its property.

(ii) To the extent any Allowed Johnson Creditor Claim remains unsatisfied after payment of the foregoing, such Holder of the Allowed Johnson Creditor Claim shall be a Liquidation Trust Beneficiary of the KP Engineering Liquidation Trust and be entitled to an Allowed General Unsecured Claim in Class 7 in the amount of the deficiency.

(iii) To the extent any Johnson Interpleaded Funds remain undistributed after satisfaction of the Allowed Johnson Creditor Claims, such excess Johnson Interpleaded Funds shall be transferred, without further order of the Bankruptcy Court, to the KP Engineering Liquidation Trust and distributed pursuant to the terms of the Liquidation Trust Agreement.


5. Allowed Channelview Creditor Claims.

Description. Prior to the Petition Date, KPE LP completed all, or substantially all, of the work relating to the Channelview Project, which is owned by Targa Terminals. The members of Class 5 shall consist of the Channelview Creditors as Holders of Channelview Creditor Claims against KPE LP arising from the Channelview Project.

Treatment. On the Effective Date, and except to the extent that a Holder of an Allowed Channelview Creditor Claim agrees to a less favorable treatment, each Holder of an Allowed Channelview Creditor Claim will receive, in full and final satisfaction, compromise, settlement,


31

release, and discharge of and in exchange for each Class 5 Claim, the following treatment under the Plan:

(i) The Channelview Retainage will be distributed to the Channelview Creditors pursuant to applicable state law. The Plan shall not alter any of the rights of the Channelview Creditors (x) as to the Channelview Retainage or (y) against Targa Terminals or its property.

(ii) To the extent any Allowed Channelview Creditor Claim remains unsatisfied after payment of the foregoing, such Holder of the Allowed Channelview Creditor Claim shall be a Liquidation Trust Beneficiary of the KP Engineering Liquidation Trust and be entitled to an Allowed General Unsecured Claim in Class 7 in the amount of the deficiency.

(iii) To the extent any portion of the Channelview Retainage remains undistributed after satisfaction of the Allowed Channelview Creditor Claims, such excess Channelview Retainage shall be transferred, without further order of the Bankruptcy Court, to the KP Engineering Liquidation Trust and distributed pursuant to the terms of the Liquidation Trust Agreement.


6. Allowed Geismar VI Creditor Claims.

Description. Prior to the Petition Date, KPE LP completed all, or substantially all, of the work relating to that certain Geismar VI Project, which is owned by Praxair. The members of Class 6 shall consist of the Geismar VI Creditors as Holders of Geismar VI Creditor claims against KPE LP arising from the Geismar VI Project.

Treatment. On the Effective Date, and except to the extent that a Holder of an Allowed Geismar VI Creditor Claim agrees to a less favorable treatment, each Holder of an Allowed Geismar VI Creditor Claim will receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 6 Claim, the following treatment under the Plan:

(i) The Geismar VI Retainage will be distributed to the Geismar VI Creditors pursuant to applicable state law. The Plan shall not alter any of the rights of the Geismar VI Creditors (x) as to the Geismar VI Retainage or (y) against Praxair or its property.

(ii) To the extent any Allowed Geismar VI Creditor Claim remains unsatisfied after payment of the foregoing, such Holder of the Allowed Geismar VI Creditor Claim shall be a Liquidation Trust Beneficiary of the KP Engineering Liquidation Trust and be entitled to an Allowed General Unsecured Claim in Class 7 in the amount of the deficiency.

(iii) To the extent any portion of the Geismar VI Retainage remains undistributed after satisfaction of the Allowed Geismar VI Creditor Claims, such excess Geismar VI


32

Retainage shall be transferred, without further order of the Bankruptcy Court, to the KP Engineering Liquidation Trust and distributed pursuant to the terms of the Liquidation Trust Agreement.


7. Allowed Other General Unsecured Claims.

Description. Class 7 shall consist of the Allowed General Unsecured Claims of all of the Debtors’ other General Unsecured Creditors that are not Johnson Creditors, Channelview Creditors or Geismar VI Creditors.

Treatment. On the Effective Date, except to the extent that a Holder of an Allowed Class 7 Claim agrees to a less favorable treatment, Holders of Allowed Class 7 Claims shall receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 7 Claim, an interest in the KP Engineering Liquidation Trust in accordance with the Liquidation Trust Agreement. Distributions to such Holders of Allowed Class 7 Claims shall be distributed by the Liquidation Trustee in accordance with the Liquidation Trust Agreement.


8. Allowed Equity Interests.

Description. Class 8 shall consist of the Holders of Allowed Equity Interests in the Debtors.

Treatment. On the Effective Date, in exchange for (i) the value provided by agreeing to work for the Debtors during the Bankruptcy Cases (including while being a target of Committee Litigation); (ii) their continued work for the Reorganized Debtors after Confirmation; and (iii) an agreement to contribute $[xxxxxxx] of Cash into the Reorganized Debtors, Holders of Equity Claims and Interests in the Debtors shall receive their equity in the Debtors.

The treatment of Class 8 (i) constitutes substantial and essential value and mutual

consideration; and (ii) is in the best interests of the Debtors, their Estates, and all Holders of Allowed Claims in Classes 1 through 7. Specifically, the treatment of Class 8 makes senior Holders of Claims and the Debtors’ Estates better off as a whole under the Plan by providing such senior Claim Holders a greater potential for recovery on account of their Allowed Claims. However, in light of the absolute priority rule proscribed by section 1129 of the Bankruptcy Code, the Chief Restructuring Officer also considered alternatives to this Class 8 treatment by marketing the Equity Interests for sale during the Bankruptcy Cases and providing an opportunity for third parties to purchase the Equity Interests in the Reorganized Debtors.

After concluding the marketing process and considering the available alternatives, the

Chief Restructuring Officer, in his business judgment, concluded that the treatment of Class 8 constituted the greatest value to the Estates and senior Holders of Claims due to (i) the closely held


33

nature of the Debtors’ businesses; (ii) the amount of Claims against the Estates; and (iii) the fact that Brandon Steele’s institutional knowledge and business relationships are crucial for the Debtors to successfully emerge as Reorganized Debtors and take on new projects. Without Holders of Equity Interests receiving their Equity Interests under the Plan, the Debtors would be unable to reach Confirmation or Consummation of the Plan. Accordingly, the Chief Restructuring Officer believes (i) the absolute priority rule has been satisfied, and (ii) the treatment of Class 8 is a fair and equitable compromise that does not unfairly discriminate against Impaired Classes of Claims under the Plan.

Voting. Class 8 is Impaired under the Plan. Holders of Allowed Claims in Class 8 are entitled to vote to accept or reject the Plan. F. Treatment of Executory Contracts and Unexpired Leases

1. Assumption or Rejection of Executory Contracts and Unexpired Leases. Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all Executory Contracts and Unexpired Leases that currently exist between the Debtors and another Person or Entity and not listed on the Schedule of Rejected Contracts attached as an Exhibit to the Plan shall be deemed accepted by the Debtors as of the Effective Date (collectively, the “Accepted Contracts”); provided, however, that the Debtors reserve the right, on or prior to the Confirmation Date, to amend the Exhibit to the Plan and add any Accepted Contracts thereto or to delete any Rejected Contracts therefrom, in which event such Executory Contract(s) or Unexpired Lease(s) shall be deemed to be rejected (if added) or assumed (if deleted). The Debtors shall provide notice of any amendments to the Schedule of Rejected Contracts to the parties to the Executory Contracts and Unexpired Leases affected thereby. The listing of a document on the Schedule of Rejected Contracts shall not constitute an admission by the Debtors that such document is an Executory Contract or an Unexpired Lease or that the Debtors have any liability thereunder. Any Executory Contract or Unexpired Lease that exists between either Debtor and another Person or Entity and that is listed on the Schedule of Rejected Contracts shall be deemed rejected by such Debtor as of the Confirmation Date unless there is pending before the Bankruptcy Court on the Confirmation Date a motion to reject such Executory Contract or Unexpired Lease.

2. Approval of Assumption or Rejection of Executory Contracts and Unexpired Leases. Entry of the Confirmation Order shall, subject to and upon the occurrence of the Effective Date, constitute (i) the approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption of the Accepted Contracts pursuant to Article V of the Plan, (ii) the approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the rejection of the Executory Contracts and Unexpired Leases rejected pursuant to Article V of the Plan, and (iii) the extension of time, pursuant to section 365(d)(4) of the Bankruptcy Code, within which the Debtors may assume, assume and assign, or reject any Unexpired Lease of nonresidential real property through the date of entry of an order approving the assumption, assumption and assignment, or rejection of such Unexpired Lease. The assumption by the Debtors of an Accepted Contract shall be binding upon any and all parties to such Accepted Contract as a matter of law, and each such Accepted Contract shall be fully enforceable by the Reorganized Debtors in accordance with its terms, except as modified by the provisions of the Plan or an order of the Bankruptcy Court.


34

3. Inclusiveness. Unless otherwise specified on the Schedule of Rejected Contracts, each Executory Contract and Unexpired Lease listed or to be listed on such Schedule shall include all modifications, amendments, supplements, restatements, or other agreements made directly or indirectly by any agreement, instrument, or other document that in any manner affect such executory contract or unexpired lease, without regard to whether such agreement, instrument or other document is listed on the Exhibits to the Plan.

4. Cure of Defaults. Within thirty (30) days of the Effective Date of the Plan, any lessor or other party to an Accepted Contract (except those lessors or other parties whose Unexpired Leases or Executory Contracts have been previously assumed by a Final Order of the Bankruptcy Court) asserting a Cure Claim in connection with the assumption of any Unexpired Lease or Executory Contract under Article V, as contemplated by section 365(b) of the Bankruptcy Code, must File such Cure Claim with the Bankruptcy Court asserting all alleged amounts accrued or alleged defaults through the Effective Date. Any party that fails to File a Cure Claim by this deadline shall be forever barred from asserting, collecting or seeking to collect any amounts or defaults relating thereto against the Reorganized Debtors. The Reorganized Debtors shall have sixty (60) days from the Effective Date to File an objection to any Cure Claim. Any disputed Cure Claims shall be resolved either consensually or by the Bankruptcy Court. Except as may otherwise be agreed to by the parties, by no later than ninety (90) days following the Effective Date, the Reorganized Debtors shall cure all undisputed Cure Claims. All disputed Cure Claims shall be cured either within one hundred thirty (30) days after the entry of a Final Order determining the amount, if any, of the applicable Debtor’s liability with respect thereto or as may otherwise be agreed to by the parties.

5. Claims under Rejected Executory Contracts and Unexpired Leases. Unless otherwise ordered by the Bankruptcy Court, any Claim for damages arising by reason of the rejection of any Executory Contract or Unexpired Lease, including those listed in the Schedule of Rejected Contracts, must be Filed with the Bankruptcy Court within thirty (30) days after the later of (i) the date of entry of any order of the Bankruptcy Court (including the Confirmation Order) approving such rejection; (ii) the effective date of such rejection; or (iii) the Effective Date of the Plan., or such Claim shall be forever barred and unenforceable against the applicable Debtor or Reorganized Debtor. The Plan and any other order of the Bankruptcy Court providing for the rejection of an Executory Contract or Unexpired Lease shall constitute adequate and sufficient notice to Persons or Entities which may assert a Claim for damages from the rejection of an Executory Contract or Unexpired Lease of the Bar Date for Filing a Claim in connection therewith.

All Claims for damages from the rejection of an Executory Contract or Unexpired Lease, once fixed and liquidated by the Bankruptcy Court and determined to be Allowed Claims, shall be Allowed General Unsecured Claims in Class 7.

6. Insurance Policies. Except as otherwise provided in the Plan, all of the Debtors’ insurance policies are treated as Executory Contracts under the Plan and are expressly assumed by the Debtors, regardless of whether they are included on the Schedule of Rejected Contracts. Nothing contained in the Plan shall constitute or be deemed a waiver of any Cause of Action that the Debtors may hold against any Person or Entity with respect to such Executory Contracts or Unexpired Leases.

G. Means of Implementation of the Plan


35

1. Continued Corporate Existence. The Debtors shall continue to exist after the Effective Date as a separate limited partnership and limited liability company, respectively, with all the powers of a limited partnership or limited liability company, as the case may be, pursuant to the applicable law in the jurisdiction in which the Debtors are formed and pursuant to their respective by-laws (or other formation documents) in effect prior to the Effective Date.

2. Corporate Action. All matters provided for under the Plan involving the corporate structure of the Debtors or the Reorganized Debtors, or any corporate action to be taken by or required of the Debtors or the Reorganized Debtors, shall, as of the Effective Date, be deemed to have occurred and be effective as provided herein, and shall be authorized and approved in all respects without any requirement for further action by the shareholders, members, officers, or directors of the Debtors or the Reorganized Debtors. On the Effective Date, the Reorganized Debtors shall have the authority to adopt any other agreements, documents, and instruments and to take any other actions contemplated under the Plan as necessary to consummate the Plan and establish the KP Engineering Liquidation Trust.

3. Control of the Reorganized Debtors. Subject to any requirement of Bankruptcy Court approval pursuant to section 1129(a)(5) of the Bankruptcy Code, as of the Effective Date, the Current Directors and Officers of the Debtor shall be established as the Directors and Officers of the Reorganized Debtor without any further action by any party.

4. Exit Financing. In addition to revenue generated from new EPC projects, the primary means of implementing the Debtors’ Plan is the Exit Financing. The Debtors intend to enter into a new credit facility with BTS Enterprises and Texas Capital Bank as Exit Financing for continued operations. On the Effective Date, the Reorganized Debtors, BTS Enterprises and TCB shall execute the Exit Financing Documents. The Exit Financing documents shall be Filed as Plan Documents or otherwise attached as Exhibits to the Plan. It shall be a condition precedent to the execution of the Exit Financing Documents by TCB that certain indebtedness of BTS Enterprises and Brandon Steele be restructured as set forth in the Exhibits to the Plan. To the extent that the Plan is not confirmed with Exit Financing terms acceptable to TCB and/or such restructuring with Brandon Steele and BTS Enterprises is not completed on terms acceptable to TCB, then TCB shall have no obligation under the Plan or the restructuring with Brandon Steele and BTS Enterprises.

Part of the Exit Financing shall consist of conversion of the DIP Facility. In accordance with the Exit Financing Documents, and notwithstanding anything to the contrary therein, TCB, through a new $3.25 million post-petition term loan facility to BTS Enterprises, will provide Exit Financing to Debtor KPE LP. Such Exit Financing shall be used to refinance the existing BTS Enterprises debt to TCB pursuant to the terms and conditions of the applicable Exit Financing Documents. Brandon Steele agrees to execute a new secured guaranty of the Exit Financing provided to KPE LP. The Exit Financing will be cross-pledged and cross-defaulted with all debts of the Reorganized Debtors, KP Realty, LLC, KP Realty II, LLC, BTS Enterprises, and Brandon Steele. BTS Enterprises shall retain its second priority DIP Liens (subordinated only to the TCB Secured Claim) and security interest in, to, and against the applicable collateral for all amounts relating to its DIP Loan Claim, including all rights granted to BTS Enterprises in the DIP Note, DIP Facility Documents, Interim DIP Loan Order, and Final DIP Loan Order, which shall be collaterally assigned to TCB. Payment of the Exit Financing as it relates to the DIP Loan Claim shall consist of the following:


36

(i) Monthly principal and interest payments based on a sixty (60) month amortization

schedule.

(ii) Beginning on May 1st (or, if May 1st is not a Business Day, then the first Business Day thereafter) of the year the Allowed TCB Secured Claim in Class 2 is paid in full, and on May 1st of each calendar year thereafter, an annual principal payment equal to seventy-five percent (75%) of the prior year’s excess cash flow of KPE LP, as such excess cash flow may be calculated and determined by the Exit Financing Documents. If payment in full of the Allowed TCB Secured Claim in Class 2 occurs after May 1st of any given calendar year, the first excess cash flow payments shall begin on May 1st of the following calendar year.

(iii) To the extent any portion of the Exit Financing, as it specifically relates to the DIP

Loan Claim and conversion of the DIP Facility, remains unsatisfied after payment of the foregoing, such unsatisfied Exit Financing portion shall be paid in a lump sum at maturity pursuant to the terms and conditions of the Exit Financing Documents, or at such other time as the Reorganized Debtors and TCB may agree.

In addition to conversion of the DIP Facility, the Exit Financing Documents shall provide

for a New Liquidity Facility. Specifically, In accordance with the Exit Financing Documents, and notwithstanding anything to the contrary therein, TCB, through a new $1.5 million revolving credit facility to BTS Enterprises, will provide Exit Financing to Debtor KPE LP. Such Exit Financing shall be used by the Reorganized Debtors as general working capital pursuant to the terms and conditions of the applicable Exit Financing Documents. Brandon Steele agrees to execute a new secured guaranty of the Exit Financing provided to KPE LP. The Exit Financing will be cross-pledged and cross-defaulted with all debts of the Reorganized Debtors, KPE Realty, BTS Enterprises, and Brandon Steele. BTS Enterprises shall have a second priority Lien (subordinated only to the TCB Secured Claim) and security in, to, and against the assets of the Reorganized Debtors securing the amount of the New Liquidity Facility, including all rights granted to BTS Enterprises in the Exit Financing Documents, which shall be collaterally assigned to TCB. Payment of the Exit Financing as it specifically relates to the New Liquidity Facility provided by TCB, shall consist of the following:

(i) Monthly interest payments.

(ii) To the extent any portion of the Exit Financing, as it specifically relates to the new

liquidity facility, remains unsatisfied after payment of the foregoing, such unsatisfied Exit Financing portion shall be paid in a lump sum at maturity pursuant to the terms and conditions of the Exit Financing Documents, or at such other time as the Reorganized Debtors and TCB may agree.

5. Establishment of the KP Engineering Liquidation Trust. On the Effective Date, the

Liquidation Trustee shall sign the Liquidation Trust Agreement and, in his or her capacity as Liquidation Trustee, accept all Liquidation Trust Assets on behalf of the beneficiaries thereof, and be authorized to obtain, seek the turnover, liquidate, and collect all of the Liquidation Trust Assets not in his or her possession. The KP Engineering Liquidation Trust will then be deemed created


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and effective without any further action by the Bankruptcy Court or any Person as of the Effective Date. Thereupon, and except as expressly provided in the Plan or Liquidation Trust Agreement, the Debtors shall not have any interest in, or with respect to, the Liquidation Trust Assets.

The Liquidation Trust shall be established for the purposes of (i) liquidating the Liquidation Trust Assets; (ii) prosecuting and resolving the litigation and Causes of Action belonging to the Liquidation Trust; (iii) resolving the Class 7 Claims of General Unsecured creditors; (iv) maximizing recovery of the Liquidation Trust Assets for the benefit of the beneficiaries thereof; and (v) distributing the proceeds of the Liquidation Trust Assets to the Liquidation Trust Beneficiaries in accordance with this Plan and the Liquidation Trust Agreement, with no objective to continue or engage in the conduct of a trade or business, except only in the event and to the extent necessary for, and consistent with, the litigation purposes of the Liquidation Trust.

6. Vesting and Transfer of Assets to the KP Engineering Liquidation Trust. Pursuant

to section 1141(b) of the Bankruptcy Code, the KP Engineering Liquidation Trust Assets shall vest in the Liquidation Trust free and clear of all Liens, Claims and Interests, except as otherwise specifically provided in this Plan or in the Confirmation Order. Except as provided herein with respect to Committee Litigation against TCB, the Liquidation Trust Assets shall include all of the Debtors’ claims against, and interests in, the proceeds of all Avoidance Actions and Committee Litigation, including, but not limited to, the following:

Defendant Cause of Action Pursuant to 11 U.S.C. §§ 105, 541, 542, 544, 547, 548, 550, 551 and TUFTA § 24.001 et seq. (as applicable)

Brandon T. Steele Partnership distributions of at least $55.7 million; increases to the Partner Receivable of at least $12.7 million; breach of fiduciary duties; and guaranty of bank loans with TCB for Steele’s benefit

Tony D. Freeman Partnership distributions of at least $4 million Ric Steele Partnership distributions of at least $2.8 million Ken Baxter Partnership distributions of at least $2.5 million BTS Enterprises, Inc. Partnership distributions of at least $3.2 million; transfer of equity

interests in KPE LP’s former subsidiaries Ryno Engineering, LLC Partnership distributions of at least $6 million Steele Resources, LLC Shared services payments of at least $7.8 million and lease

payments of at least $160,000 KP Realty, LLC Lease payments of at least $2.9 million KP Realty II, LLC Lease payments of at least $667,000 BTS Aviation Payments to BTS Aviation related to the airplane of at least $3.2

million West Village Realty, LLC Payments to West Village of at least $5.2 million

Pursuant to the Bankruptcy Court’s order [Doc. No. 399], the Committee was granted

standing to pursue, and has already initiated Committee Litigation related to, some or all of the foregoing Causes of Action on behalf of the Debtors’ creditors. For the avoidance of doubt, the foregoing Causes of Action and Committee Litigation constitute the only assets of either Estate to be included in the Liquidation Trust Assets.


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7. Beneficiaries of the KP Engineering Liquidation Trust. The Liquidation Trust shall be a waterfall trust. Except as provided in the Plan and Liquidation Trust Agreement with respect to repayment of the Exit Financing, Holders of Allowed Class 7 Claims entitled to receive distributions shall be the only Liquidation Trust Beneficiaries of the KP Engineering Liquidation Trust. Such Liquidation Trust Beneficiaries shall be bound by the terms and conditions of this Plan and the Liquidation Trust Agreement. The interests of the Liquidation Trust Beneficiaries in the Liquidation Trust shall be uncertificated and nontransferable. Distributions from the Liquidation Trust shall be made from the Liquidation Trust’s Cash on hand, including Cash from the successful prosecution or settlement of any Causes of Action included in the Liquidation Trust Assets. Distributions shall be made in accordance with the following priorities: (i) payment of the reimbursable expenses of the Liquidation Trustee; and (ii) payment of Allowed Class 7 Claims an amount in Cash equal to the respective Holder’s Pro Rata share of the KP Engineering Liquidation Trust.

8. Preservation of Causes of Action. The Debtors intend to File a Schedule of Retained Causes of Action. Except for those certain Causes of Action being transferred to the Liquidation Trust, the Debtors intend to preserve all potential Causes of Action, whether known or unknown, for the benefit of the Debtors’ Estates and their creditors. The Debtors do not presently know the full extent of the Causes of Action which they may be entitled to bring. However, the Debtors specifically preserve all Causes of Action of that are not Liquidation Trust Assets, including, but not limited to any Avoidance Actions not vested in the Liquidation Trust, turnover of Estate property, breach of fiduciary duty, civil conversion, theft, sabotage, contribution, indemnification, and/or negligence claims.

For purposes of voting on the Plan, all creditors are advised that the Reorganized Debtors will have substantially the same rights that the Debtors would have with respect to these Retained Causes of Action. Accordingly, neither a vote to accept the Plan by any creditor nor the entry of the Confirmation Order will act as a release, waiver, bar or estoppel of any Retained Cause of Action against such creditor or any other Person or Entity, unless such creditor, Person or Entity is specifically identified by name as a released party in the Plan, in the Confirmation Order, or in any other Final Order of the Bankruptcy Court. Confirmation of the Plan and entry of the Confirmation Order is not intended to and shall not be deemed to have any res judicata or collateral estoppel or other preclusive effect that would precede, preclude, or inhibit prosecution of such Retained Causes of Action following Confirmation of the Plan.

Further, no creditor or other party should vote for the Plan or otherwise rely on the Confirmation of the Plan or the entry of the Confirmation Order in order to, or on the belief that it will, obtain any defense to any Retained Cause of Action or any Cause of Action belonging to the Liquidation Trust. No creditor or other party should act or refrain from acting on the belief that it will obtain any defense to any Cause of Action. EXCEPT AS SPECIFICALLY PROVIDED IN THE PLAN WITH RESPECT TO THE LIQUIDATION TRUST ASSETS, THE PLAN DOES NOT, AND IS NOT INTENDED TO, RELEASE ANY CAUSES OF ACTION OR OBJECTIONS TO CLAIMS, AND ALL SUCH RIGHTS ARE SPECIFICALLY RESERVED. Creditors are advised that legal rights, claims and rights of action either Debtor may have against them, if they exist, are retained under the Plan for prosecution unless a Final Order of the Bankruptcy Court authorizes the Debtors to release such claims. As such, creditors are cautioned not to rely on (i) the absence of the listing of any legal right, claim or right of action against a particular creditor in


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the Disclosure Statement, the Plan, or the Schedules, or (ii) the absence of litigation or demand prior to the Effective Date of the Plan as any indication that the Debtors do not possess, or do not intend to prosecute, a particular claim or Retained Cause of Action, even if the Debtors solicited votes on the Plan and a particular creditor votes to accept the Plan. It is the express intention of the Plan to preserve rights, objections to Claims, and rights of action of the Debtors, whether now known or unknown. A Cause of Action shall not, under any circumstances, be waived as a result of the failure of the Debtors to describe such Cause of Action with specificity in the Plan or in the Disclosure Statement; nor shall the Reorganized Debtors, as a result of such failure, be estopped or precluded under any theory from pursuing such Cause of Action. Nothing in the Plan operates as a release of any of the Retained Causes of Action.

9. Pursuit of Causes of Action. On the Effective Date, those Causes of Action which are not explicitly transferred to the Liquidation Trust under the Plan shall be vested in the Reorganized Debtors, except to the extent a creditor or other third party has been specifically released from any Cause of Action by the terms of the Plan or by a Final Order of the Bankruptcy Court. The Reorganized Debtors will have the right, in their sole and absolute discretion, to pursue, not pursue, settle, release or enforce any such Retained Causes of Action without seeking any approval from the Bankruptcy Court except as otherwise provided in the Plan. The Debtors are not currently in a position to express an opinion on the merits of any of these Causes of Action or on the recoverability of any amounts as a result of any such Causes of Action. For purposes of providing notice, however, the Debtors state that any party in interest that engaged in prepetition business or other transactions with the Debtors, or that received prepetition payments from the Debtors may be subject to litigation to the extent that applicable bankruptcy or non-bankruptcy law supports such litigation. The costs and expenses (including legal fees) to pursue the Causes of Action shall be paid by the Reorganized Debtors.

The Estates shall remain open, even if the Bankruptcy Cases shall have been closed, as to any and all Retained Causes of Action until such time as the Causes of Action have been fully administered and the recoveries have been received by the Reorganized Debtors; provided, however, that nothing in the Plan or the Disclosure Statement shall prohibit the Debtors from pursuing such Causes of Action (excluding the Liquidation Trust Assets) in any courts other than the Bankruptcy Court.

10. Prosecution and Settlement of Claims and Causes of Action. The Reorganized Debtors or the Liquidation Trustee, as applicable, (a) may commence or continue in any appropriate court or tribunal any suit or other proceeding for the enforcement of any Cause of Action which the Debtors or Liquidation Trustee asserted, or had power to assert, immediately prior to the Effective Date, and (b) may settle or adjust such Cause of Action. From and after the Effective Date, the Reorganized Debtors or the Liquidation Trustee, as applicable, shall be authorized, pursuant to Bankruptcy Rule 9019 and section 105(a) of the Bankruptcy Code, to compromise and settle any Cause of Action or objection to a Claim in accordance with the following procedures, which shall constitute sufficient notice in accordance with the Bankruptcy Code and the Bankruptcy Rules for compromises and settlements: (i) if the resulting settlement provides for settlement of a Cause of Action or objection to a Claim originally asserted in an amount equal to or less than $100,000.00, then the Reorganized Debtors or Liquidation Trustee, as applicable, may settle the Cause of Action or objection to Claim and execute necessary documents, including a stipulation of settlement or release; and (ii) if the resulting settlement


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involves a Cause of Action or objection to a Claim originally asserted in an amount exceeding $100,000.00, then the Reorganized Debtors or Liquidation Trustee shall be authorized and empowered to settle such Cause of Action or objection to Claim only upon Bankruptcy Court approval in accordance with Bankruptcy Rule 9019.

H. Distributions under the Plan

1. Distribution. Subject to Article IV of the Plan, all distributions under the Plan, except those from the Liquidation Trust, shall be made by the Reorganized Debtors. Unless otherwise provided in the Plan, on the Effective Date or as soon as reasonably practicable thereafter (or if a Claim is not an Allowed Claim or Allowed Interest on the Effective Date, on the date that such Claim or Interest becomes an Allowed Claim or Allowed Interest), each Holder of an Allowed Claim shall receive the full amount of the distributions that the Plan provides for Allowed Claims or Allowed Interests (as applicable) in the applicable Class. Specifically, the Reorganized Debtors shall make distributions to Holders of Allowed Administrative Expense Claims (including Allowed Professional Compensation Claims) and Allowed Priority Non-Tax Claims in Class 1.

Distributions from the Liquidation Trust shall be made as soon as reasonably practicable after the Effective Date and upon the liquidation of the Liquidation Trust Assets in accordance with the Plan and Liquidation Trust Agreement. Such distributions shall be made from the Liquidation Trust’s Cash on hand, including Cash from the successful prosecution or settlement of any Causes of Action included in the Liquidation Trust Assets, in accordance with the following priorities: (i) payment of the reimbursable expenses of the Liquidation Trustee; and (ii) payment of Allowed Class 7 Claims an amount in Cash equal to the respective Holder’s Pro Rata share of the KP Engineering Liquidation Trust.

2. Address for Distributions. Distributions to a Holder of an Allowed Claim shall be made at the address of such Holder set forth in the Schedules or on the books and records of the Reorganized Debtors at the time of the distribution, unless the Reorganized Debtors or the Liquidation Trustee, as applicable, have been notified in writing of a change of address, including by the Filing of a Proof of Claim or statement pursuant to Bankruptcy Rule 3003 by such Holder that contains an address for such Holder different than the address for such Holder as set forth in the Schedules. The Reorganized Debtors or the Liquidation Trustee, as applicable, shall not be liable for any distribution sent to the address of record of a Holder in the absence of the written change thereof as provided herein.

3. Determination of Claims by the Reorganized Debtors. From and after the Effective Date, solely with respect to all Claims and Interests in Classes 1, 3, and 8, the Reorganized Debtors shall have the exclusive authority to, and shall, File, settle, compromise, withdraw, or litigate to judgment all objections to Claims.

4. Determination of Claims by the Liquidation Trustee. Except as otherwise specifically provided in the Plan or Liquidation Trust Agreement, after the Effective Date, the Liquidation Trustee, solely with respect to all Claims in Classes 4, 5, 6, and 7, shall have authority to: (i) File, withdraw, or litigate to judgment, objections to Claims; (ii) settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court; and (iii) administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court. After the


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Effective Date, the Liquidation Trustee shall have and retain any and all rights and defenses the Debtors had with respect to any Class 7 Claim immediately prior to the Effective Date.

5. Time for Filing Objections to Claims. Except as to any late-Filed Claims and Claims resulting from the rejection of executory contracts or unexpired leases, if any, all objections to Claims shall be Filed with the Bankruptcy Court by no later than (i) one hundred twenty (120) days after the Effective Date, or (ii) such other period of limitation as may be specifically fixed by a Final Order of the Bankruptcy Court for objecting to such Claims.

Holders of General Unsecured Claims that have not filed a Proof of Claim on or before the Bar Date, and whose Claims have not otherwise been Allowed, shall File and serve the Reorganized Debtors and the Liquidation Trustee with a request to the Bankruptcy Court for allowance to File late General Unsecured Claims. If the Bankruptcy Court grants the request to File a late General Unsecured Claim, such General Unsecured Claim shall be treated in all respects as a General Unsecured Claim in Class 7. Objections by the Liquidation Trustee to late-Filed Claims and Claims resulting from the rejection of Executory Contracts or Unexpired Leases shall be Filed on the later of (a) one hundred eighty (180) days following the Effective Date or (b) the date that is thirty (30) days after the Liquidation Trustee receives actual notice of the Filing of such Claim.

Notwithstanding any authority to the contrary, an objection to a Claim shall be deemed properly served on the Holder of the Claim if the Debtors or Liquidation Trustee, as applicable, effects service in any of the following manners: (a) in accordance with Federal Rule of Civil Procedure 4, as modified and made applicable by Bankruptcy Rule 7004, (b) to the extent counsel for the Holder of a Claim is unknown, by first class mail, postage prepaid, on the signatory on the Proof of Claim or other representative identified on the Proof of Claim or any attachment thereto, or (c) by first class mail, postage prepaid, on any counsel that has Filed a notice of appearance in the Bankruptcy Cases on behalf of the Holder of a Claim.

Disputed Claims shall be fixed or liquidated in the Bankruptcy Court as core proceedings within the meaning of 28 U.S.C. § 157(b)(2)(B) unless the Bankruptcy Court orders otherwise. If the fixing or liquidation of a contingent or unliquidated Claim would cause undue delay in the administration of the Bankruptcy Cases, such Claim shall be estimated by the Bankruptcy Court for purposes of allowance and distribution. The Reorganized Debtors or Liquidation Trustee, as applicable, may request at any time that the Bankruptcy Court estimate any contingent or unliquidated Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether the Debtors previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection. The Bankruptcy Court shall retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including during the pendency of any appeal relating to any such objection.

Notwithstanding any provision otherwise in the Plan, a Claim or Interest that has been expunged from the Claims Register, but that either is subject to appeal or has not been the subject of a Final Order, shall be deemed to be estimated at zero dollars ($0.00) unless otherwise ordered by the Bankruptcy Court. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim, such estimated amount will constitute either the Allowed amount of such Claim or a maximum limitation on such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on such Claim, the Debtors, Reorganized


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Debtors, or Liquidation Trustee, as applicable, may elect to pursue any supplemental proceedings to object to any ultimate allowance of such Claim. The determination of Claims in estimation hearings shall be binding for purposes of establishing the maximum amount of the Claim for purposes of allowance and distribution. All of the aforementioned Claims objection, estimation, and resolution procedures are cumulative and not exclusive of one another. Procedures for specific estimation hearings, including provisions for discovery, shall be set by the Bankruptcy Court giving due consideration to applicable Bankruptcy Rules and the need for prompt determination of the Disputed Claim.

6. Distributions as to Holders of Disputed Claims. Notwithstanding any provision in the Plan to the contrary, no distribution shall be made to the Holders of a Disputed Claim unless and until such Disputed Claim becomes an Allowed Claim. To the extent a Disputed Claim becomes Allowed the distribution reserved for such Claim shall be distributed to the Holder thereof. To the extent a Disputed Claim becomes Disallowed, the distribution reserved for such Claim shall be retained by the Reorganized Debtors or Liquidation Trust, as applicable.

7. Minimum Distributions. To avoid the disproportionate expense and inconvenience associated with making de minimis distributions, the Reorganized Debtors or Liquidation Trustee, as applicable, will not be required to make, and will be excused from making, distributions in amounts of less than fifty dollars ($50.00), and such amounts shall be retained by the Reorganized Debtors or Liquidation Trust.

8. Undeliverable and Unclaimed Distributions. In the event that any distribution to any Holder of Allowed Claims or Allowed Interests (as applicable) is returned as undeliverable, no distribution to such Holder shall be made unless and until the Debtors or Liquidation Trustee (as applicable) have determined the then-current address of such Holder, at which time such distribution shall be made to such Holder without interest; provided, however, that such distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one (1) year from the Effective Date. After such date, all unclaimed property or interests in property shall revert to the Reorganized Debtors or KP Engineering Liquidation Trust (as applicable) automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal, provincial or state escheat, abandoned, or unclaimed property laws to the contrary), and the Claim of any Holder of Claims and Interests to such property or Interest in property shall be discharged and forever barred.

I. Conditions Precedent to Confirmation of the Plan and the Effective Date

The following are conditions precedent to Confirmation of the Plan and Consummation and occurrence of the Effective Date. Specifically, the Plan shall not be consummated, and the Effective Date shall not occur unless each of the following conditions has been satisfied or waived by the Debtors:

1. The Plan and Confirmation Order shall be in form and substance acceptable to the Debtors.

2. The Bankruptcy Court shall have entered the Confirmation Order in a form and substance acceptable to the Debtors and shall not (a) have been reversed or vacated, (b) be subject to a then-effective stay, or (c) have been modified or amended;


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3. The Plan, including any amendments, modifications, or supplements thereto, and inclusive of any amendments, modifications, or supplements made after the Confirmation Date but before the Effective Date, shall be in form and substance acceptable to the Debtors; and

4. The KP Engineering Liquidation Trust Agreement shall be in form and substance acceptable to the Debtors; and

5. The Exit Financing Documents shall have been executed as of the Effective Date.

Promptly following the satisfaction or the waiver of all conditions set forth in Article IX of the Plan, the Debtors shall file a notice (the “Effective Date Notice”) with the Bankruptcy Court designating the Effective Date. The Debtors shall serve the Effective Date Notice on the Debtors’ Master Service List.

J. Discharge, Exculpation from Liability, Release and Injunction Provisions under the Plan

1. Release and Discharge of Debtors. Pursuant to Bankruptcy Code section 1141(d), and except as otherwise specifically provided in the Plan, KP Engineering Liquidation Trust Agreement, or in any contract, instrument, or other agreement or document created pursuant to the Plan, the distributions, rights, and treatment that are provided for in the Plan shall be in complete satisfaction, discharge, and release, effective as of the Effective Date, of Claims, Interests, and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Interests from and after the Petition Date, whether known or unknown, against, liabilities of, liens on, obligations of, rights against, and Interests in, the Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims and Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any liability (including withdrawal liability) to the extent such Claims or Interests related to services performed by employees of the Debtors prior to the Effective Date and that arise from a termination of warranties issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, in each case whether or not: (1) a Proof of Claim based upon such debt or right is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code; or (2) a Claim or Interest based upon such debt, right, or Interest is Allowed pursuant to section 502 of the Bankruptcy Code. The Confirmation Order shall be a judicial determination of the discharge of all Claims and Interests subject to the occurrence of the Effective Date.

2. Release of Liens. Pursuant to Bankruptcy Code section 1141(d), and except as otherwise specifically provided in the Plan, KP Engineering Liquidation Trust Agreement, or in any contract, instrument, or other agreement or document created pursuant to the Plan, the distributions, rights, and treatment that are provided for in the Plan shall be in complete satisfaction, discharge, and release, effective as of the Effective Date, of Claims, Interests, and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Interests from and after the Petition Date, whether known or unknown, against, liabilities of, liens on, obligations of, rights against, and Interests in, the Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims and Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any liability (including withdrawal liability) to the extent such


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Claims or Interests related to services performed by employees of the Debtors prior to the Effective Date and that arise from a termination of warranties issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, in each case whether or not: (1) a Proof of Claim based upon such debt or right is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code; or (2) a Claim or Interest based upon such debt, right, or Interest is Allowed pursuant to section 502 of the Bankruptcy Code. The Confirmation Order shall be a judicial determination of the discharge of all Claims and Interests subject to the occurrence of the Effective Date.

3. Releases by the Debtors. Pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, each Released Party is deemed released and discharged by the Debtors, the Reorganized Debtors, and the Estates, in each case on behalf of themselves and their respective successors, assigns, and representatives, and any and all other Entities who may purport to assert any Cause of Action, directly or derivatively, by, through, for, or because of the foregoing Entities, from any and all Causes of Action, including any derivative claims, asserted on behalf of the Debtors, that the Debtors, the Reorganized Debtors, or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the Holder of any Claim against, or Interest in, the Debtors or other Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtors’ in- or out-of-court restructuring efforts, the Bankruptcy Cases, the Plan, the KP Engineering Liquidation Trust, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Plan, the Liquidation Trust Agreement, the Filing of the Bankruptcy Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, or the distribution of property under the Plan, Liquidation Trust Agreement, or any other related agreement, or upon any other act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date. Notwithstanding anything contained herein to the contrary, the foregoing release does not release any obligations of any party under the Plan or any document, instrument, or agreement executed to implement the Plan.

For the avoidance of doubt, (i) the release in this Section, and the term Released Party,

specifically excludes those Persons or Entities identified in the chart set forth in Article IV.H. of the Plan; and (ii) except with respect to the release of TCB set forth in Article III.C.2 of the Plan, the release in this Section shall not apply to release or discharge any Person or Entity from any liability whatsoever to the Debtors in connection with the Committee Litigation, or any other Causes of Action identified as KP Engineering Liquidation Trust Assets.

4. Release by Holders of Claims and Interests. As of the Effective Date, each

Releasing Party is deemed to have released and discharged the Debtors, Reorganized Debtors, and Released Parties from any and all Causes of Action, whether known or unknown, including derivative claims, asserted on behalf of the Debtors, that such Entity would have been legally entitled to assert (whether individually or collectively), based on or relating to, or in any manner arising from, in whole or in part, the Debtors’ in- or out-of-court restructuring efforts, the Bankruptcy Cases, the formulation, preparation dissemination, negotiation, or Filing of the Plan, the KP Engineering Liquidation Trust Agreement, or the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, or the distribution of property under the Plan or any other related agreement, or upon any other related act or omission,


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transaction, agreement, event, or other occurrence taking place on or before the Effective Date. Notwithstanding anything contained herein to the contrary, the foregoing release does not release any obligations of any party under the Plan or any document, instrument, or agreement executed to implement the Plan.

For the avoidance of doubt, the term Releasing Party specifically excludes the Committee

and Holders of Class 7 Claims. For the further avoidance of doubt, (i) the release in this Section specifically excludes the release of those certain claims identified in the chart set forth in Article IV.H. of the Plan; and (ii) except with respect to the release of TCB set forth in Article III.C.2 of the Plan, the release in this Section shall not apply to release or discharge any Person or Entity from any liability whatsoever to the Debtors in connection with the Committee Litigation, or any other Causes of Action identified as KP Engineering Liquidation Trust Assets.

5. Exculpation. The Exculpated Parties shall not have or incur any liability to any

Holder of a Claim or Interest, for any act, event, or omission from the Petition Date to the Effective Date in connection with or arising out of the Bankruptcy Cases, the Confirmation of the Plan, the Consummation of the Plan, the administration of the Plan, the creation or transfer of Estate property to the KP Engineering Liquidation Trust, or the assets and property to be distributed pursuant to the Plan or Liquidation Trust (including unclaimed property under the Plan), unless such Entity’s action is determined as: (i) bad faith; (ii) actual fraud; (iii) willful misconduct; or (iv) gross negligence, in each case by a Final Order of a court of competent jurisdiction. Each Entity may reasonably rely upon the opinions of counsel, certified public accountants, and other experts or professionals employed by the Debtors.

With respect to Professionals, the foregoing exculpation from liability provision shall also

include claims of professional negligence arising from the services provided by such Professionals during the Bankruptcy Cases. Any such claims shall be governed by the standard of care otherwise applicable to the standard of negligence claims outside of bankruptcy. The rights granted under Article VIII of the Plan are cumulative with (and not restrictive of) any and all rights, remedies, and benefits that the Exculpated Parties have or obtain pursuant to any provision of the Bankruptcy Code or other applicable law. In furtherance of the foregoing, the Exculpated Parties shall have the fullest protection afforded under section 1125(e) of the Bankruptcy Code and all applicable law from liability for violation of any applicable law, rule or regulation governing the solicitation of acceptance or rejection of a plan or the offer, issuance, sale or purchase or securities. This exculpation from liability provision is an integral part of the Plan and is essential to its implementation. Notwithstanding anything to the contrary contained therein, the provisions of Article VIII of the Plan shall not release, or be deemed a release of, any of the Causes of Action.

6. Injunction. Except as otherwise expressly provided in the Plan or for obligations issued or required to be paid pursuant to the Plan or the Confirmation Order, all Entities who have held, hold, or may hold Claims or Interests that have been satisfied, released, discharged, or are subject to exculpation are permanently enjoined, from and after the Effective Date, from taking any of the following actions against, as applicable, the Debtors, the Reorganized Debtors, the Liquidation Trustee, the Exculpated Parties, or the Released Parties: (1) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests; (2) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or


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in connection with or with respect to any such Claims or Interests; (3) creating, perfecting, or enforcing any encumbrance of any kind against such Entities or the property or the estates of such Entities on account of or in connection with or with respect to any such Claims or Interests; (4) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property of such Entities on account of, in connection with, or with respect to any such Claims or Interests unless such Holder has Filed a motion requesting the right to perform such setoff on or before the Effective Date, and notwithstanding an indication of a Claim or Interest or otherwise that such Holder asserts, has, or intends to preserve any right of setoff pursuant to applicable law or otherwise; and (5) commencing or continuing in any manner any action or other proceeding of any kind on account of, in connection with, or with respect to any such Claims or Interests released or settled pursuant to the Plan.

Upon Confirmation of the Plan, all Holders of Claims and Interests and their respective

current and former employees, agents, officers, directors, principals, and direct and indirect Affiliates shall be enjoined from taking any actions to interfere with the implementation or Consummation of the Plan. Each Holder of any Allowed Claim or Allowed Interest, as applicable, by accepting, or being eligible to accept, distributions under or Reinstatement of such Claim or Interest, as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction provisions set forth in the Plan.

7. Term of Certain Injunctions and Automatic Stay. Unless otherwise provided in the

Plan or in the Confirmation Order, all injunctions or stays in effect in the Bankruptcy Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.

8. No Liability for Tax Claims. Unless a taxing Governmental Unit has asserted a

Claim against the Debtors before the Bar Date for Governmental Units or the Administrative Expense Claim Bar Date established therefore, no Claim of such Governmental Unit shall be Allowed against the Debtors or their respective directors, officers, employees or agents for taxes, penalties, interest, additions to tax or other charges arising out of (i) the failure, if any, of the Debtors, any of its Affiliates, or any other Person or Entity to have paid tax or to have filed any tax return (including any income tax return or franchise tax return) in or for any prior year or period, or (ii) an audit of any return for a period before the Petition Date.

9. Regulatory or Enforcement Actions. Notwithstanding anything to the contrary set forth herein, nothing in the Plan or the Confirmation Order shall restrict any federal government regulatory agency, including the SEC, from pursuing any regulatory or police enforcement action, including for violations of the federal securities laws, or performing its statutory duties against any Person or Entity in any forum, but only to the extent not prohibited by the automatic stay of section 362 of the Bankruptcy Code or discharged or enjoined pursuant to section 524 or 1141(d) of the Bankruptcy Code. K. Modification of Plan


47

The Debtors may modify the Plan at any time prior to the entry of the Confirmation Order provided that the Plan, as modified, and the Disclosure Statement meet applicable Bankruptcy Code and Bankruptcy Rules requirements. Specifically, the Debtors may modify the Plan under Article X.A to satisfy any requirements under section 1145 of the Bankruptcy Code, and any such modifications shall be deemed non-material and to not materially adversely affect the interests, rights, or treatment of any Class of Claims or Equity Interests under the Plan.

After the entry of the Confirmation Order, the Debtors (prior to the Effective Date) or the Reorganized Debtors (on and after the Effective Date) may modify the Plan to remedy any defect or omission herein, or to reconcile any inconsistencies between the Plan and the Confirmation Order, as may be necessary to carry out the purposes and effects of the Plan, provided that (a) the Debtors or the Reorganized Debtors (as the case may be) obtains Bankruptcy Court approval for such modification, after notice and a hearing, and (b) such modification does not materially adversely affect the interests, rights, or treatment of any Class of Claims under the Plan.

Further, the Plan may be modified in a way that materially adversely affects the interests, rights, or treatment of a Class of Claims, provided that (a) the Plan, as modified, meets applicable Bankruptcy Code requirements, (b) the Debtors or the Reorganized Debtors (as the case may be) obtain Bankruptcy Court approval for such modification, after notice to the Class of Claims materially adversely affected and a hearing. Notwithstanding anything to the contrary contained in the Plan, the Plan may not be altered, amended or modified without the written consent of the Debtors (prior to the Effective Date) or the Reorganized Debtors (on and after the Effective Date).

L. Retention of Jurisdiction

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, until the Bankruptcy Cases are closed, the Bankruptcy Court shall retain the fullest and most extensive jurisdiction of the Bankruptcy Cases that is permitted by applicable law, including that necessary to ensure that the purposes and intent of the Plan are carried out, as more fully set forth in Article XI of the Plan.

VIII. CERTAIN FEDERAL INCOME TAX CONSEQUENCES

A. Important Notice

The tax consequences of the Plan to the Debtors and to Holders of Claims and Equity Interests are discussed below. This discussion of the federal income tax consequences of the Plan to the Debtors and Holders under U.S. federal income tax law, including the Internal Revenue Code of 1986, as amended (the “Tax Code”), is provided for informational purposes only. While this discussion addresses certain of the material tax consequences of the Plan, it is not a complete discussion of all such consequences and is subject to substantial uncertainties. Moreover, the consequences to a Holder may be affected by matters not discussed below (including, without limitation, special rules applicable to certain types of persons, such as persons holding non-vested stock or otherwise subject to special rules, nonresident aliens, life insurance companies, and tax-exempt organizations) and by such Holder’s particular tax situation. In addition, this discussion does not address any state, local, or foreign tax considerations that may be applicable to particular Holders.


48

Some of the issues discussed below are complex, and there can be no assurance of the accuracy of this information. The Debtors’ general bankruptcy counsel has no tax expertise and has not researched or analyze tax consequences resulting from the Plan. Accordingly, please take notice that:

HOLDERS OF CLAIMS AND INTERESTS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE TAX CONSEQUENCES TO THEM OF THE TRANSACTIONS CONTEMPLATED BY THE PLAN, INCLUDING STATE, LOCAL AND FOREIGN TAX CONSEQUENCES.

B. Federal Income Tax Consequences to Holders

The following discussion addresses certain of the material consequences of the Plan to Holders. Under the Plan, the tax consequences of the Plan to a Holder will depend, in part, on the type of consideration received in exchange for the Claim or Equity Interest and the tax status of the Holder, such as whether the Holder is an individual, corporation or other entity, whether the Holder is a resident of the United States, the accounting method of the Holder, and the tax classification of the Holder's particular Claim or Equity Interest. For that reason, Holders should consult their own tax advisors with respect to the tax treatment for their particular claims or equity interests. Among the issues the Holders of Claims and/or Equity Interests and their advisors may wish to consider are:

(i) The extent to which the Holder of a Claim and/or Equity Interest is entitled to a bad debt deduction or a worthless securities loss.

(ii) The extent to which the Holder of a Claim or Equity Interest recognizes gain or loss on the exchange of its Claim or Equity Interest for property, debt, and stock of the Debtor and the character of that gain or loss.

(iii) The basis and the holding period for any property, debt, and stock received by the Holder of a Claim or Equity Interest.

(iv) Whether the original issue discount rules, market discount rule, and amortizable bond premium rules apply to any debt received by the Holder of a Claim or Equity Interest.

(v) The treatment of property, stock, or debt, if any, received by the Holder of a Claim or Equity Interest in satisfaction of accrued interest.

(vi) The effect of a Holder of a Claim or Equity Interest receiving deferred distributions or distributions that are contingent in amount.

C. Federal Income Tax Consequences to the Debtors

1. In General. Taxpayers are generally required to recognize taxable income as a result of cancellation of debt. The receipt of borrowed funds is not subject to tax, on the premise that the debtor will repay them. If the debt is cancelled without repayment, the recognition of income takes into account a debtor's receipt of the borrowed funds.


49

Special rules, however, apply to the cancellation of debt in a bankruptcy proceeding. Generally, a debtor in a bankruptcy case is not required to recognize income from the cancellation of debt. However, the debtor has to pay for this exclusion by reducing specified tax attributes, such as any net operating loss ("NOL") incurred by the taxpayer in the year that the debt discharge occurs, any NOL carryovers to that year, and tax credit and capital loss carryforwards.

2. Limitation on NOL Carryforwards and Other Tax Attributes. To deter "trafficking" in NOL carryforwards, section 382 of the Tax Code limits a corporation's ability to use losses incurred before an “ownership change” to offset income earned thereafter. A similar limitation applies to tax credits. In general, an ownership change occurs if more than fifty percent (50%) of the stock of a corporation changes hands within a three-year period.

If an ownership change occurs, the corporation can use pre-change NOL carryforwards to offset only an amount of income each year equal to the value of the stock of the corporation immediately before the ownership change multiplied by a prescribed interest rate. The limitation is intended to estimate the earning power of the corporation's pool of capital at the time of the ownership change. The limitation thus prevents the use of pre-change NOL carryforwards to offset income from new capital contributed by the new owners.

Special rules apply, however, in the case of ownership changes that occur in a bankruptcy proceeding. Under the general rules, the annual limitation usually would be quite low, because the corporation's stock immediately before the ownership change often has little or no value. Essentially eliminating the NOL carryforwards of a corporation in bankruptcy could hinder the corporation's ability to reorganize successfully, contrary to the goals of the federal bankruptcy laws. Therefore, Congress provided special bankruptcy rules in section 382. If an ownership change occurs in bankruptcy, section 382(l)(6) allows the corporation, in computing the annual limitation on the use of NOL carryforwards, to increase its value to reflect the cancellation of claims in the bankruptcy reorganization. The regulations provide for this result by using as the value of corporation the lesser of the value of its gross assets immediately before the ownership change or the value of its stock immediately thereafter. This amount is multiplied by the prescribed interest rate to arrive at the annual limitation on the amount of income that can be offset by pre-change NOL carryforwards.

Another special rule, provided in section 382(l)(5), applies if at least fifty percent (50%) of the corporation's stock immediately after the ownership change is owned by persons who were shareholders or creditors of the corporation immediately before the ownership change. For purposes of computing the fifty-percent threshold, however, stock issued to creditors who own at least five percent (5%) of the corporation's stock after the ownership change is taken into account only if the creditor held its claim for at least eighteen months before filing of the bankruptcy petition or if the claim arose in the ordinary course of the corporation's business and was owned at all times by the same person. When the conditions of section 382(l)(5) are met, the annual limitation on NOL carryovers does not apply. Instead, the corporation is required to reduce its NOL carryforwards by the amount of deductions claimed in the prior three years for interest on debt that is exchanged for stock in the bankruptcy reorganization. The corporation can then use its remaining NOL carryforwards to offset future income without limitation. Even if the corporation qualifies for the special rule of section 382(l)(5), it can still elect to apply instead the general bankruptcy rule of section 382(l)(6), under which an annual limitation applies, but is


50

computed under special rules taking into account the effect of the cancellation of claims on the value of the corporation.

Any limitation on NOL carryforwards that may result from the ownership change will probably also apply to “built-in” losses and deductions that accrued economically before the ownership change but are not taken into account under tax accounting rules until after the ownership change. For the avoidance of all doubt, the Debtors assert that:

PERSONS CONCERNED WITH THE TAX CONSEQUENCES OF THE PLAN SHOULD CONSULT THEIR OWN ACCOUNTANTS, ATTORNEYS AND/OR ADVISORS. THE DEBTORS MAKE THE ABOVE-NOTED DISCLOSURES OF POSSIBLE TAX CONSEQUENCES FOR THE SOLE PURPOSE OF ALERTING READERS TO TAX ISSUES THEY MAY WISH TO CONSIDER. THE DEBTORS CANNOT AND DO NOT REPRESENT THAT THE TAX CONSEQUENCES MENTIONED ABOVE ARE COMPLETELY ACCURATE BECAUSE, AMONG OTHER THINGS, THE TAX LAW EMBODIES MANY COMPLICATED RULES THAT MAKE IT DIFFICULT TO STATE ACCURATELY WHAT THE TAX IMPLICATIONS OF ANY ACTION MIGHT BE.

IX. CONFIRMATION REQUIREMENTS

A. Confirmation and Acceptance by All Impaired Classes

At the Confirmation Hearing, the Bankruptcy Court will confirm the Plan if all of the requirements of Bankruptcy Code section 1129 are met. Among the requirements for confirmation are that the Plan be accepted by all Impaired Classes of Claims and Equity Interests, and satisfaction of the matters described below.

1. Feasibility. A plan may be confirmed only if it is not likely to be followed by the liquidation or the need for further financial reorganization of a debtor. The Debtors believe that they will be able to perform their obligations under the Plan without further financial reorganization due to, inter alia, the Exit Financing and the revenue and value generated from the Debtors’ new EPC projects.

The Plan provides for payment of Allowed Claims, including contingent, unliquidated and Disputed Claims to the extent they become Allowed Claims, in the order of their priority, provided however, it is unknown what recovery will be available to holders of General Unsecured Claims in Classes 3 through 7. At the present time, the Debtors believe that they will have sufficient funds, as of the Effective Date, to pay in full the expected payments required under the Plan to the Holders of Allowed Administrative Expense Claims and Allowed Priority Non-Tax Claims in Class 1.

2. Best Interests Standard. The Bankruptcy Code requires that the Plan meet the "best interest" test, which requires that members of a Class must receive or retain under the Plan, property having a value not less than the amount which the Class members would have received or retained if the Debtors were liquidated under Chapter 7 on the same date. The Debtors believe that distributions to all Impaired Classes of Claims in accordance with the terms of the Plan would far exceed the net distribution that would otherwise take place in Chapter 7. Therefore, the Debtors submit that the interests of creditors are best served by voting to accept the Plan.


51

B. Confirmation Without Acceptance By All Impaired Classes

If one or more of the Impaired Classes of Claims or Equity Interests does not accept the Plan, the Plan may nevertheless be confirmed and be binding upon the non-accepting Impaired Class under the “cram down” provisions of the Bankruptcy Code if the Plan does not “discriminate unfairly” and is “fair and equitable” to the non-accepting Impaired Classes under the Plan.

1. Discriminate Unfairly. The Bankruptcy Code requirement that a plan not “discriminate unfairly” means that a dissenting class must be treated equally with respect to other classes of equal rank. The Debtors believe that the Plan does not “discriminate unfairly” with respect to any Class of Claims or Equity Interests because no Class is afforded treatment which is disproportionate to the treatment afforded other Classes of equal rank.

2. Fair and Equitable Standard. With respect to the Impaired Classes of Unsecured

Claims, Bankruptcy Code section 1129(b)(2)(B) provides that a plan is “fair and equitable” if it provides that (i) each holder of a claim of such class receives or retains on account of such claim, property of a value as of the effective date of the plan equal to the allowed amount of such claim; or (ii) the holder of any claim or interest that is junior to the claims of such class will not receive or retain property under the plan on account of such junior claim or interest. The Debtors believe that the Plan meets these standards.

The Debtors believe that the requirements of Bankruptcy Code 1129(a) and (b) are met

under the Plan. Accordingly, if necessary, the Debtors will seek Confirmation of the Plan under the “cram down” provisions of the Bankruptcy Code and believe it meets the requirements for Confirmation by the Bankruptcy Court notwithstanding (i) the non-acceptance by an Impaired Class of Claims or (ii) the fact that Holders of Equity Interests in Class 8 are receiving their Equity Interests in the Reorganized Debtors. C. Non-Confirmation of the Plan

If the Plan is not confirmed by the Bankruptcy Court, the Bankruptcy Court may permit the Filing of an amended plan, dismiss the Bankruptcy Cases, or convert the Bankruptcy Cases to cases under Chapter 7 of the Bankruptcy Code. In a Chapter 7 case, the Chapter 7 trustee would have to gain an understanding of the nature of the Causes of Action and pursue such Causes of Action for the benefit of the Estates. The Debtors believe that this would result in unnecessary costs and delay.

X. ALTERNATIVES TO CONFIRMATION AND CONSUMMATION OF THE PLAN

If the Plan is not confirmed, the potential alternatives include (a) alternative plans under Chapter 11 (including a liquidation plan), (b) dismissal of the case, or (c) conversion of the case to a case under Chapter 7 of the Bankruptcy Code.

A. Alternative Plans of Reorganization

If the Plan is not confirmed, the Debtors or, subject to further determination by the Bankruptcy Court as to extensions of exclusivity under the Bankruptcy Code, any other party in


52

interest in the Bankruptcy Cases could attempt to formulate and propose a different plan or plans. Such plans might involve a reorganization, an orderly liquidation of the Debtors’ assets, or a combination thereof. The Debtors believe that their Plan will enable creditors to be paid the maximum amount possible for their Allowed Claims.

B. Liquidation under Chapter 7 of the Bankruptcy Code

If the Plan (or any other plan) is not confirmed, the Bankruptcy Cases may be converted to liquidation cases under Chapter 7 of the Bankruptcy Code. In a Chapter 7 case, a trustee would be elected or appointed to liquidate the assets of the Debtors. The proceeds of the liquidation would be distributed to Holders of Claims and Equity Interests of the Debtors in accordance with the priorities established by the Bankruptcy Code.

In general, the Debtors believes that liquidation under Chapter 7 of the Bankruptcy Code would result in a substantial diminution of the value of the interests of the creditors because of (i) additional administrative expenses involved in the appointment of a trustee and attorneys, accountants and other professionals to assist such trustee; (ii) additional expenses and claims, some of which might be entitled to priority, which would arise by reason of the liquidation; (iii) failure to realize the full value of the Debtors’ assets; (iv) the inability to utilize the work product and knowledge of the Debtors and their Professionals; and (v) the substantial delay which would elapse before creditors would receive any distribution on account of their Claims. Accordingly, the Debtors believe that the Plan is far superior to liquidation of the Debtors’ assets under Chapter 7.

XI. SUMMARY AND CONCLUSION

The Plan provides for an orderly and prompt distribution to Holders of Allowed Claims and Allowed Equity Interests against the Debtors. The Debtors believe that their efforts to maximize the return for Holders of Claims and Equity Interests have been full and complete. The Debtors further believe that the Plan meets the requirements of the Bankruptcy Code and is in the best interests of all creditors.


53

Respectfully submitted on the 28th day of February, 2020.

KP ENGINEERING, LP By: /s/ Douglas J. Brickley Douglas J. Brickley Chief Restructuring Officer

KP ENGINEERING, LLC By: /s/ Douglas J. Brickley Douglas J. Brickley Chief Restructuring Officer OKIN ADAMS LLP





EXHIBIT 1

Joint Chapter 11 Plan of Reorganization of KP Engineering, LP and KP Engineering, LLC

[To Be Supplemented]


EXHIBIT 2

Liquidation Analysis



EXHIBIT 3

List of 90 Day Payments or Transfers



Exhibit 4

Schedule of Retained Causes of Action



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EXHIBIT B

Case 19-34698 Document 454-3 Filed in TXSB on 04/01/20 Page 1 of 3Case 19-34698 Document 468-3 Filed in TXSB on 04/06/20 Page 1 of 3


HOUSTON DIVISION


§ Case No. 19-34698 (DRJ)

§ (Jointly Administered) Debtors. § §

GENERAL NOTICE REGARDING DEADLINES

On [x], 2020, the Bankruptcy Court entered its Order Granting Debtors’ Emergency Motion for Entry of an Order Approving (I) Adequacy of the Disclosure Statement; (II) Form of Solicitation Materials; and (III) Procedures for Soliciting and Voting on the Joint Chapter 11 Plan of Reorganization [Doc. No. ___] (the “Order”). Among other things, the Order approved the Disclosure Statement in Support of Joint Chapter 11 Plan of Reorganization of KP Engineering, LP and KP Engineering, LLC [Doc. No. 438] (the “Disclosure Statement”) filed in the above-captioned Bankruptcy Cases. In the Order, the Bankruptcy Court found that the Disclosure Statement filed by the above-referenced Debtors contains adequate information within the meaning of Bankruptcy Code section 1125. You are being provided this Notice with respect to the Joint Chapter 11 Plan of Reorganization filed by the Debtors (the “Plan”). The Bankruptcy Court has set [x], 2020 at [x:xx] [x].m. (prevailing Central Time) as the date and time for hearing on Confirmation of the Plan and to consider any objections to the Plan. The Confirmation Hearing will be held before the Honorable David R. Jones, Chief United States Bankruptcy Judge, in the United States Bankruptcy Court for the Southern District of Texas, Houston Division, 515 Rusk Street, 4th Floor, Courtroom No. 400, Houston, Texas 77002. The Confirmation Hearing may be adjourned from time to time without further notice other than an announcement of the adjourned date(s) at the Confirmation Hearing, and, thereafter at any adjourned hearing(s). In addition, the Plan may be modified without further notice prior to or as a result of the Confirmation Hearing, and, thereafter, as otherwise provided in the Bankruptcy Code. Any objection to Confirmation of the Plan must be filed with the Clerk of the Bankruptcy Court. The Bankruptcy Court has set [x], 2020 as the date by which objections to Confirmation of the Plan must be filed. UNLESS AN OBJECTION IS TIMELY FILED AND SERVED, IT MAY NOT BE CONSIDERED BY THE COURT. To the extent that you hold an impaired claim and have the opportunity to vote to accept or reject the Plan, the Bankruptcy Court has fixed [x], 2020 as the Voting Deadline for the receipt of Ballots evidencing the votes accepting or rejecting the Plan.


You may obtain copies of the pleadings filed in the Bankruptcy Cases without charge by contacting Debtors’ counsel by email at [email protected] or by phone at (713) 228-4100. Dated: [x], 2020.

OKIN ADAMS LLP








HOUSTON DIVISION


§ Case No. 19-34698 (DRJ)

§ (Jointly Administered) Debtors. § §

ORDER GRANTING DEBTORS’

EMERGENCY MOTION FOR ENTRY OF AN ORDER APPROVING (I) ADEQUACY OF THE DISCLOSURE STATEMENT; (II) FORM OF

SOLICITATION MATERIALS; AND (III) PROCEDURES FOR SOLICITING AND VOTING ON THE JOINT CHAPTER 11 PLAN OF REORGANIZATION

(Relates to Doc. No. ___)

The Court considered the Emergency Motion for Entry of an Order Approving (I)

Adequacy of the Disclosure Statement; (II) Form of Solicitation Materials; and (III) Procedures for

Soliciting and Voting on the Joint Chapter 11 Plan of Reorganization (the “Motion”)1 filed by KP

Engineering, LP and KP Engineering, LLC, the above-captioned debtors and debtors in

possession (the “Debtors”). The Court having reviewed the Motion, the Disclosure Statement,

and any objections thereto; and based on the matters reflected in the record of the hearing held

on the Motion; finds that: (a) it has jurisdiction to consider the Motion pursuant to 28 U.S.C. §

1334; (b) this matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A); (c) the relief

requested in the Motion is in the best interests of the Debtors, their estates, creditors, equity

security holders, and other parties in interest; (d) proper and adequate notice of the Motion, the

Disclosure Statement, and the hearing thereon has been given and that, except as set forth herein,

no other or further notice is necessary; (e) good and sufficient cause exists for the granting of the

relief requested in the Motion after having given due deliberation upon the Motion, the

1 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Motion.


2

Disclosure Statement, all testimony, evidence, and representations regarding the Disclosure

Statement, and all of the proceedings had before the Court in connection with the Motion and the

Disclosure Statement; and (f) the Motion should be GRANTED. It is therefore hereby

ORDERED that:

Approval of Disclosure Statement and Pertinent Dates

1. The Disclosure Statement is hereby approved as containing information of a kind,

and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the

Debtors and the facts and circumstances of the Bankruptcy Cases, that would enable a

hypothetical investor typical of the Holders of Claims and Equity Interests to make an informed

judgment regarding the Plan (defined below) pursuant to sections 1125(a)(1) and (2) of the

Bankruptcy Code.

2. The Joint Chapter 11 Plan of Reorganization of KP Engineering, LP and KP

Engineering, LLC (the “Plan”) should be transmitted to Holders of Claims and Equity Interests

for consideration and voting, as provided herein.

3. To the extent not withdrawn, settled, or otherwise resolved, any objection(s) to

the Disclosure Statement are hereby overruled.

4. The Confirmation Hearing to consider Confirmation of the Plan shall be held

before the Honorable David R. Jones, Chief United States Bankruptcy Judge, in the United

States Bankruptcy Court for the Southern District of Texas, Houston Division, 515 Rusk Street,

4th Floor, Courtroom No. 400, Houston, Texas 77002 on [x], 2020 at [x:xx] [x].m. (prevailing

Central Time). The Confirmation Hearing may be adjourned from time to time by the Court

without further notice other than an announcement made at the Confirmation Hearing or at any

adjourned hearing thereon. Emergency motions concerning Confirmation of the Plan may be

filed and self-calendared for the Confirmation Hearing.


3

5. [x], 2020 is fixed as the Voting Record Date, which shall be the date for the

determination of Holders of Claims and Equity Interests entitled to receive the Solicitation

Materials and vote to accept or reject the Plan. Holders of Claims and Equity Interests in the

Voting Classes shall be entitled to vote the amount of such Claim held as of the Voting Record

Date.

6. [x], 2020 is fixed as the Mailing Deadline by which the Debtors shall serve the

Solicitation Materials to Holders of Claims and Equity Interests, and other interested parties as

may be required by the Bankruptcy Code, Bankruptcy Rules, Bankruptcy Local Rules or

Complex Case Procedures.

7. [x], 2020 is fixed as the Voting Deadline by which acceptances or rejections of

the Plan must be actually received by the Debtors in order to be counted.

8. [x], 2020 is fixed as the Objection Deadline and shall be the last day for filing

written objections to the Confirmation of the Debtors’ Plan and serving the same via the Court’s

CM/ECF system. Failure to timely file and serve any objections, comments, or responses to the

Plan may result in the waiver of such objections, comments, responses and claims and the Court

may determine not to consider the same.

Approval of Form of General Notice and Ballots

9. The forms of Ballots attached to the Motion as Exhibit A are hereby approved.

10. The form of the General Notice attached to the Motion as Exhibit B is hereby

approved.

11. In accordance with the Complex Case Procedures, the Debtors shall serve a copy

of the Notice of Consensual Releases in the Plan, together with a return addressed envelope, on

non-voting creditors and other parties in interest to indicate their assent or opposition to the

consensual releases contained in the Plan. The Voting Deadline shall apply as the deadline by


4

which the Debtors must actually receive such Person or Entity’s assent or opposition to the

releases in the Plan.

Service of Solicitation Materials

12. No later than the Mailing Deadline, and in accordance with Bankruptcy Rule

2002(b), the Debtors are authorized to cause the Solicitation Materials to be mailed to Holders of

Claims and Interests in Classes 2, 3, 4, 5, 6, 7, and 8 by serving a copy of such Solicitation

Materials on all parties listed on the creditor matrix and claims register.

13. The Solicitation Materials shall include: (i) a copy of this Order; (ii) a copy of the

Disclosure Statement, the Plan and all Exhibits and appendices attached thereto; (iii) the Ballots;

(iv) the General Notice; and (v) a return addressed envelope.

14. Service of this Order, the Disclosure Statement, Plan, and other Solicitation

Materials shall be, at the Debtors’ discretion, by first class mail or overnight delivery, and all

documents will be addressed to the party at the most recent address contained on the Debtors’

matrix or claims register.

Voting Procedures and Requirements

15. If any Holder of a Claim or Interest in a Voting Class does not receive a Ballot for

such Class, if a Ballot is damaged or lost, or if any Holder should have any questions regarding

the procedures for voting on the Plan, such Holder should contact the Debtors by email at

[email protected] or by phone at (713) 228-4100.

16. By enclosing the Ballots with the Solicitation Materials, the Debtors do not make

any representation or admission that a Holder of a Claim or Equity Interest is entitled to vote on

the Plan or that such Claim or Equity Interest is an Allowed Claim or an Allowed Equity Interest.



5

17. The Debtors’ rights to object to any Ballot(s) submitted are specifically reserved

for the Confirmation Hearing, and the Court shall resolve all such objection(s), if any, at the

Confirmation Hearing.

Voting Instructions

18. The Court hereby directs that, in order to be counted for voting purposes, Ballots

for accepting or rejecting the Plan must be actually received by the Debtors prior to the Voting

Deadline and must be submitted via (i) regular mail, (ii) overnight delivery, (iii) hand delivery,

or (iv) email, using the contact information below.

OKIN ADAMS LLP Christopher Adams

James W. Bartlett, Jr. Ryan A. O’Connor

1113 Vine St., Suite 240 Houston, Texas 77002

Tel: 713.228.4100 [email protected] [email protected] [email protected]

19. Except as otherwise provided herein, a Ballot will not be counted if it is received

by the Debtors after the Voting Deadline. Votes cast will be irrevocable after the Voting

Deadline, unless the Court, after application, notice, and hearing, permits a change of vote.

Tabulation of Ballots

20. Solely for purposes of voting on the Plan, each record Holder of a Claim in the

Voting Classes who votes to accept or reject the Plan shall be deemed to have voted its Claim in

the principal amount of its Claim.

21. So as to avoid uncertainty and inconsistent results, Ballots in the following

categories shall not be counted, unless otherwise ordered by the Court:

a. Ballots that partially reject and partially accept the Plan;





6

b. Any Ballot that is illegible or contains insufficient information to permit the identification of the Claim or Interest Holder;

c. Ballots that fail to indicate an acceptance or rejection of the Plan, or that indicate both acceptance and rejection of the Plan;

d. Unless previously authorized in writing by the Debtors, Ballots that are not timely received by the Voting Deadline, including, for the avoidance of doubt, Ballots that are postmarked prior to the Voting Deadline but not actually received by the Debtors until after the Voting Deadline; and

e. If a Holder of a Claim simultaneously casts inconsistent Ballots, such Ballots shall not be counted.

22. Whenever two or more Ballots are cast voting the same Claim or Equity Interest

prior to the Voting Deadline, the last validly completed Ballot received prior to the Voting

Deadline shall be deemed to reflect the voter’s intent and will supersede any prior Ballot(s),

without prejudice to the Debtors’ right to object to the validity of the second Ballot on any basis

permitted by law; and, if the objection to such second Ballot or subsequent Ballot is sustained, to

count the first Ballot for all purposes.

23. Prior to the Confirmation Hearing, the Debtors shall file with the Court a

summary of all Ballots tabulated as of the Voting Deadline.

24. At the Confirmation Hearing, the Debtors and other parties in interest may seek

further clarification from the Court on vote tabulation, and retain the right to object or raise any

issue with respect to any Ballot, including issues pertaining to Impairment of the Classes.

Fiduciaries and Other Representatives

25. If a Ballot is signed by a trustee, executor, administrator, guardian, attorney-in-

fact, officer of a corporation, or another acting in a fiduciary or representative capacity, such

person should indicate such capacity when signing.

Withdrawal of Ballots and Revocation

26. Any Holder of a Claim or Interest in the Voting Classes who has delivered a valid

Ballot to the Debtors for the acceptance or rejection of the Plan may withdraw such acceptance


7

or rejection by delivering a written notice of withdrawal to the Debtors at any time prior to the

Voting Deadline. A notice of withdrawal, to be valid, must: (i) contain the description of the

Ballot(s) to which it relates and the aggregate amount represented by such Claim(s); (ii) be

signed by the withdrawing party in the same manner as the Ballot being withdrawn; (iii) contain

a certification that the withdrawing Holder owns the Claim(s) and possesses the right to

withdraw the vote sought to be withdrawn; and (iv) be received by the Debtors in a timely

manner at the address of the Debtors’ counsel set forth above.

27. A purported notice of withdrawal of a Ballot that is not received in a timely

manner by the Debtors shall not be effective to withdraw a previously cast Ballot.

28. Any party who has submitted a properly completed Ballot to the Debtors prior to

the Voting Deadline may revoke such Ballot and change their vote by submitting to the Debtors,

prior to the Voting Deadline, a subsequent properly completed Ballot for acceptance or rejection

of the Plan. In the case where more than one timely, properly completed Ballot is received, only

the Ballot that bears the latest date shall be counted for purposes of determining whether the

requisite acceptances have been received.

Waivers of Defects and Irregularities

29. Unless otherwise directed by the Court, and subject to Paragraph 23, above, all

questions as to the validity, form, eligibility (including time of receipt), acceptance, and

revocation or withdrawal of Ballots will be determined by the Debtors in their sole discretion.

30. The Debtors’ rights to: (i) contest the validity of any withdrawal of a Ballot;

(ii) reject any and all Ballots not in proper form, the acceptance of which would, in the opinion

of the Debtors or their counsel, violate the procedures set forth in this Order, or otherwise be

unlawful; and (iii) waive any defects or irregularities or conditions of delivery as to any

particular Ballot, are hereby expressly reserved. The interpretation (including of the Ballot and


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the respective instructions thereto) by the Debtors, unless otherwise directed by the Court, will

be final and binding on all parties.

31. Unless waived, any defects or irregularities in connection with the execution and

delivery of Ballots must be cured within such time as the Debtors (or the Court) determine.

Neither the Debtors, their Professionals, nor any other Person or Entity, will be under any duty to

provide notification of defects or irregularities with respect to deliveries of Ballots nor will any

of them incur any liabilities for failure to provide such notification.

32. Unless otherwise directed by the Court, delivery of such Ballots will not be

deemed to have been made until such irregularities have been cured or waived in writing by the

Debtors. Ballots previously furnished, and as to which any irregularities or defects have not

been timely cured or waived, will be invalidated.

Miscellaneous

33. The form and manner of notice approved in this Order is adequate, appropriate,

and satisfies the requirements of the Bankruptcy Code, Bankruptcy Rules, Bankruptcy Local

Rules, Complex Case Procedures, and other Orders of this Court to the extent applicable to

Persons or Entities affected thereby.

34. Prior to mailing, the Debtors may make final, non-substantive edits (consisting

solely of correcting typographical and grammatical errors, making stylistic and formatting

improvements, adding updates of dates and information as may be helpful, and adding revisions

announced on the record at the hearing on the Disclosure Statement) to the Disclosure Statement,

Plan, all notices to be served, and all versions of Ballots and all other notices, which shall be

deemed approved by this Order without further notice or hearing.


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35. To the extent modifications are made by the Debtors, the Debtors shall file the

final versions of the Disclosure Statement, Plan and any other Solicitation Materials on the

Court’s docket prior to service.

36. This Court retains exclusive jurisdiction with respect to all matters arising from or

related to the implementation, interpretation, and enforcement of this Order.

Dated: _________________________, 2020 ________________________________________ THE HONORABLE DAVID R. JONES

UNITED STATES BANKRUPTCY JUDGE



HOUSTON DIVISION


§ Case No. 19-34698 (DRJ)


JOINT CHAPTER 11 PLAN OF REORGANIZATION OF KP ENGINEERING, LP AND KP ENGINEERING, LLC

OKIN ADAMS LLP Christopher Adams Texas Bar No. 24009857 James W. Bartlett, Jr. Texas Bar No. 00795238 Ryan A. O’Connor Texas Bar No. 24098190 1113 Vine St., Suite 240 Houston, Texas 77002 Tel: 713.228.4100 Fax: 888.865.2118 Email: [email protected] Email: [email protected] Email: [email protected]

ATTORNEYS FOR THE DEBTORS Dated: February 28, 2020






TABLE OF CONTENTS

Page

ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, CONSTRUCTION OF TERMS, COMPUTATION OF TIME, AND GOVERNING LAW

A. Defined Terms ............................................................................................................. ..1 B. Rules of Interpretation and Construction of Terms ...................................................... 12

C. Computation of Time ................................................................................................... 13

D. Governing Law ............................................................................................................ 13

E. Reference to Monetary Figures ................................................................................... 13

F. Incorporation of Documents by Reference .................................................................. 13

ARTICLE II. ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS A. Administrative Claims ................................................................................................. 13

B. DIP Loan Claim ........................................................................................................... 14

C. Professional Compensation Claims .............................................................................. 15

D. Priority Unsecured Tax Claims ................................................................................... 15

ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS

A. Classification in General ............................................................................................. 15

B. Summary of Classification of Claims and Interests ..................................................... 16

C. Treatment of Claims and Interests ................................................................................ 16

D. Special Provision Governing Unimpaired Claims ....................................................... 21 E. Elimination of Vacant Classes ...................................................................................... 21

F. Controversy Concerning Impairment ........................................................................... 21

G. Subordinated Claims .................................................................................................... 21

H. No Waiver .................................................................................................................... 22

ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN A. Corporate Existence .................................................................................................... 22

B. Reorganized Debtors .................................................................................................... 22 C. Directors and Officers of the Reorganized Debtors..................................................... 22

D. Vesting of Assets in Reorganized Debtors ................................................................... 22 E. Exit Financing .............................................................................................................. 23 F. Establishment of the KP Engineering Liquidation Trust ............................................... 24 G. Appointment of KP Engineering Liquidation Trustee ................................................. 25

H. Vesting and Transfer of Assets to the KP Engineering Liquidation Trust .................... 25

I. KP Engineering Liquidation Trust Expenses ................................................................. 26

J. Beneficiaries of the KP Engineering Liquidation Trust ................................................. 26 K. Preservation of Right to Conduct Investigations .......................................................... 26

L. Federal Income Tax Treatment of KP Engineering Liquidation Trust ......................... 26

M. Termination of the KP Engineering Liquidation Trust ................................................ 27 N. Corporate Action of the Debtors .................................................................................. 27

O. Effectuating Documents; Further Transactions ............................................................ 28

P. Retained Causes of Action ............................................................................................ 28


ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS & UNEXPIRED LEASES A. Assumption and Rejection of Executory Contracts and Unexpired Leases ................. 28

B. Indemnification Obligations ......................................................................................... 29

C. Claims Based on Rejection of Executory Contracts or Unexpired Leases ................... 29

D. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed ................. 30

E. Preexisting Obligations to the Debtors ......................................................................... 31 F. Modifications, Amendments, Supplements, Restatements, or Other Agreements ......... 31

G. Reservation of Rights ................................................................................................... 31

H. Nonoccurrence of Effective Date ................................................................................. 31

I. Contracts and Leases Entered Into After the Petition Date............................................ 31

ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS

A. Timing and Calculation of Distributions ..................................................................... 32

B. Rights and Powers of Reorganized Debtors to Make Distributions ............................. 32

C. Delivery of Distributions; Undeliverable or Unclaimed Distributions .......................... 32

D. Manner of Payment ...................................................................................................... 33 E. Distributions to Holders of Disputed Claims ................................................................ 33

F. Compliance with Tax Requirements ............................................................................ 34

G. Allocations ................................................................................................................... 34

H. No Post-Petition Interest on Claims ............................................................................. 34

I. Foreign Currency Exchange Rate .................................................................................. 34

J. Setoffs and Recoupment ............................................................................................... 34 K. Claims Paid or Payable by Third Parties ..................................................................... 35

ARTICLE VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS

A. Claims Administration Responsibilities ...................................................................... 36

B. Estimation of Claims and Interests ............................................................................... 36

C. Adjustment to Claims or Interests Without Objection ................................................. 37

D. Time to File Objections to Claims ................................................................................ 37

E. Disallowance of Claims or Interests ............................................................................. 37 F. Amendments to Claims or Interests .............................................................................. 37

G. No Distributions Pending Allowance ........................................................................... 37

H. Distributions After Allowance .................................................................................... 38

ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION & RELATED PROVISIONS

A. Release and Discharge of Debtors ............................................................................... 38

B. Release of Liens ........................................................................................................... 38

C. Releases by the Debtors ............................................................................................... 39

D. Releases by Holders of Claims and Interests ................................................................ 39

E. Exculpation................................................................................................................... 40 F. Injunction ...................................................................................................................... 40 G. Protections Against Discriminatory Treatment ............................................................ 41

H. Reimbursement or Contribution .................................................................................. 41


ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN

A. Conditions Precedent to Confirmation ......................................................................... 41

B. Conditions Precedent to Effectiveness .......................................................................... 41

C. Waiver of Conditions ................................................................................................... 42

D. Effect of Failure of Conditions ..................................................................................... 42

ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN

A. Modifications and Amendments .................................................................................. 42

B. Effect of Confirmation on Modifications ...................................................................... 43

C. Revocation or Withdrawal of Plan ............................................................................... 43

ARTICLE XI. RETENTION OF JURISDICTION..................................................................... .43

ARTICLE XII. MISCELLANEOUS PROVISIONS

A. Immediate Binding Effect ........................................................................................... 45

B. Additional Documents .................................................................................................. 45

C. Payment of Statutory Fees ........................................................................................... 46

D. Reservation of Rights ................................................................................................... 46

E. Successors & Assigns ................................................................................................... 46 F. Notices .......................................................................................................................... 46

G. Term of Injunction or Stays .......................................................................................... 46

H. Entire Agreement ........................................................................................................ 47

I. Exhibits .......................................................................................................................... 47

J. Nonseverability of Plan Provisions ............................................................................... 47

K. Plan Proposed in Good Faith ........................................................................................ 47

L. Closing the Bankruptcy Cases ...................................................................................... 48 M. Waiver or Estoppel ..................................................................................................... 48

N. Controlling Document ................................................................................................. 48


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INTRODUCTION

KP Engineering, LP and KP Engineering, LLC, as Debtors and Debtors-in-Possession in the above-captioned jointly administered Bankruptcy Cases, hereby propose this Plan of reorganization under Bankruptcy Code section 1121 for the resolution of outstanding Claims against, and Interests in, the Debtors.

ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION,

CONSTRUCTION OF TERMS, COMPUTATION OF TIME, AND GOVERNING LAW

A. Defined Terms

For purposes of this Plan, except as expressly provided or unless the context otherwise requires, all capitalized terms not otherwise defined shall have meanings ascribed to them in this Article. Any term used in this Plan that is not defined herein but is defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed to that term in the Bankruptcy Code or Bankruptcy Rules. Whenever the context requires, such terms shall include the plural as well as the singular number, the masculine gender shall include the feminine, and the feminine gender shall include the masculine.

Administrative Claim or Administrative Expense Claims means a Claim, Cause of Action, right, or other liability, or the portion thereof, that is entitled to priority under Bankruptcy Code sections 326, 327, 330, 503(b), 506(c), 507(a)(2), 507(b), and 1103, including: (i) the actual and necessary costs and expenses incurred after the Petition Date of preserving the Estates and/or in connection with operating the Debtors’ businesses (such as wages, salaries, or payments for goods and services); (ii) Professional Compensation Claims; and (iii) all fees and charges assessed against either Estate under 28 U.S.C. § 1930.

Administrative Claim Bar Date means, except as provided in Article II herein, the first Business Day that is thirty (30) days after the Effective Date or such earlier deadline as established by an order of the Bankruptcy Court.

Affiliate has the meaning prescribed in Bankruptcy Code section 101(2).

Allowed means, with respect to any Claim or Interest, except as otherwise provided in the Plan, a Claim or Interest allowable under Bankruptcy Code section 502 that: (i) has been allowed by a Final Order, including but not limited to any Final Order estimating claims for purposes of confirming this Plan; (ii) either has been Scheduled as a liquidated, non-contingent, undisputed Claim in an amount greater than zero in the Debtors’ Schedules, as the same may from time to time be amended in accordance with the Bankruptcy Code, Bankruptcy Rules or order of the Bankruptcy Court, or is the subject of a timely Filed and liquidated Proof of Claim as to which either no objection to its allowance has been Filed (either by way of objection or amendment to the Schedules) within the periods of limitation fixed by the Bankruptcy Code or by any order of the Bankruptcy Court, or any objection to its allowance has been settled, waived through payment, or withdrawn, or has been denied by a Final Order; or (iii) is expressly allowed in a liquidated amount in the Plan; provided, however, that with respect to an Administrative Claim, “Allowed” means an Administrative Claim as to which a timely request for payment has been


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made in accordance with this Plan (if such written request is required) or other Administrative Claim, in each case as to which (a) a timely objection has not been Filed, or (b) a timely objection is Filed and such objection has been settled, waived through payment, or withdrawn, or has been denied by a Final Order.

Aviation Sale Proceeds means the amount of net proceeds in Cash realized from the sale of the 2009 Cessna Citation CJ3 525B-327 airplane by BTS Aviation, LLC, a former subsidiary of KP Engineering, LP and current subsidiary of BTS Enterprises, to C3 AIR, LLC and Southland Amusements & Vending, Inc. during the Bankruptcy Cases.

Avoidance Actions means any and all actual or potential Claims and Causes of Action that have been, or may be, commenced before or after the Effective Date, to avoid a transfer of property or an obligation incurred by either Debtor pursuant to any applicable section of the Bankruptcy Code, including Bankruptcy Code sections 544, 545, 547, 548, 549, 550, 551, 553(b), and 724(a), or under similar or related state or federal statutes and common law.

Bankruptcy Cases means the Chapter 11 bankruptcy cases commenced by the Debtors upon the Filing of the voluntary petitions on the Petition Date; styled In re KP Engineering, LP, Case No. 19-34698-11 (DRJ), and In re KP Engineering, LLC, Case No. 19-34699-11 (DRJ). The Bankruptcy Cases are jointly administered under Case No. 19-34698, and any reference to a document or pleading Filed in the Bankruptcy Case shall mean Case No. 19-34698.

Bankruptcy Code means title 11 of the United States Code, 11 U.S.C. §§ 101-1532.

Bankruptcy Court means the United States Bankruptcy Court for the Southern District of Texas, Houston Division.

Bankruptcy Estate(s) or Estate(s) means the estate of either Debtor created under section 541 of the Bankruptcy Code upon the Filing of the Bankruptcy Cases, and all Estate Property comprising the estates.

Bankruptcy Rules means, collectively, the Federal Rules of Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, the Federal Rules of Civil Procedure, as amended and made applicable to the Bankruptcy Cases or ancillary proceedings, and the Bankruptcy Local Rules of the Bankruptcy Court, as applicable to the Bankruptcy Cases or ancillary proceedings, as the case may be.

Bar Date means January 13, 2020, the date established by the Bankruptcy Court by which Proofs of Claim must be Filed with respect to such Claims, other than Administrative Claims, Claims held by Governmental Units, or other Claims or Interests for which the Bankruptcy Court entered an order excluding Holders of such Claims or Interests from the requirement of Filing Proofs of Claim.

Brandon Steele or Steele means Brandon T. Steele.

BTS Enterprises means BTS Enterprises, Inc., the sole limited partner of KP Engineering, LP.

Business Day means any day other than a Saturday, Sunday, or a “legal holiday” (as defined in Bankruptcy Rule 9006(a)).


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Cash means cash and cash equivalents, including bank deposits, checks, and other similar items in legal tender of the United States of America.

Causes of Action means any claims, interests, damages, remedies, demands, rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, now existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or otherwise. This term also includes: (a) all rights of setoff, counterclaim, or recoupment and claims under contracts or for breaches of duties imposed by law; (b) the right to object to or otherwise contest Claims or Interests; (c) Avoidance Actions; and (d) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy Code.

Channelview Creditors means those certain Holders of Claims against Debtor KPE LP in Class 5 arising from the Channelview Project that have filed Liens against the Channelview Project.

Channelview Creditor Claims means those certain Claims of the Channelview Creditors against Debtor KPE LP.

Channelview Project means Debtor KPE LP’s design, procurement of equipment, and construction of a crude oil splitter in Channelview, Texas pursuant to that certain Agreement for Engineering, Procurement and Construction dated April 15, 2016 between Debtor KPE LP and Targa Terminals, as amended.

Channelview Retainage means the amount that Targa Terminals remained indebted to KPE LP for the retainage under the Channelview Project contract as of the Petition Date.

Chief Restructuring Officer means Douglas J. Brickley, as appointed and employed by the Debtors pursuant to the Bankruptcy Court’s order [Doc. No. 258].

Claim means a claim against any portion of the Bankruptcy Estate(s) of either Debtor, whether or not asserted, as defined in section 105(5) of the Bankruptcy Code.

Claims Register means the official register of Claims.

Class means a category of Claims or Interests as described in the Plan pursuant to Bankruptcy Code section 1122(a).

CM/ECF means the Bankruptcy Court’s Case Management and Electronic Case Filing system.

Confirmation means entry by the Bankruptcy Court of the Confirmation Order confirming this Plan.

Confirmation Date means the date of entry by the Bankruptcy Court of the Confirmation Order.

Confirmation Hearing means the hearing held by the Bankruptcy Court to consider Confirmation of the Plan.


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Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to Bankruptcy Code section 1129.

Consummation means the occurrence of the Effective Date.

Committee means the Official Committee of Unsecured Creditors in the Bankruptcy Cases.

Committee Litigation means the litigation initiated by the Committee against any third party, whether before or after the Filing of this Plan or entry of the Confirmation Order, including, but not limited to, the following adversary proceedings: (1) Official Committee of Unsecured Creditors on Behalf of KP Engineering, LP and KP Engineering, LLC v. Brandon T. Steele, et. al., Case No. 20-03035 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division; and (2) Official Committee of Unsecured Creditors on Behalf of KP Engineering, LP and KP Engineering, LLC v. Texas Capital Bank, National Association, Case No. 20-03030 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division.

Cure Claim means a Claim based upon either Debtor’s default on an Executory Contract or Unexpired Lease at the time such contract or lease is assumed by either Debtor pursuant to Bankruptcy Code section 365.

Current Directors and Officers means the directors and officers of the Debtors who were directors and officers of the Debtors as of the Petition Date.

Debtor means one of the Debtors, as applicable in the context.

Debtors means, collectively, KP Engineering, LP and KP Engineering, LLC.

DIP Collateral means all of KP Engineering, LP’s presently owned or hereafter acquired property and assets, whether such property and assets were acquired before or after the Petition Date, of any kind or nature, whether real or personal, tangible or intangible, wherever located, and the proceeds and products thereof, as specifically defined by the DIP Loan Order.

DIP Facility means the debtor-in-possession secured financing authorized by the DIP Loan Order and advanced by the DIP Lender pursuant to the DIP Note.

DIP Facility Documents means those certain documents evidencing the terms and conditions of the DIP Facility between the Debtor and DIP Lender, including (a) the Interim DIP Loan Order; (b) the Final DIP Loan Order; and (c) the DIP Note and attached Security Agreement.

DIP Liens means those certain valid, binding, and enforceable liens, mortgages and/or security interests granted to the DIP Lender pursuant to Bankruptcy Code sections 363, 364(c), and 364(d), as security for the DIP Facility and other post-petition costs payable under the DIP Note, as specifically defined by the DIP Loan Order.

DIP Lender means BTS Enterprises, Inc.

DIP Loan Claim means a Claim arising under or relating to the DIP Facility, Interim DIP Loan Order or the Final DIP Loan Order, including any and all fees, interest paid in kind, and accrued


5

but unpaid interest and fees arising under the DIP Facility Documents, and all obligations defined thereunder. Pursuant to the Final DIP Loan Order, the DIP Loan Claim is held by Texas Capital Bank, as assignee of BTS Enterprises, in accordance with the terms of that certain Collateral Assignment of Note.

DIP Note means that certain Debtor in Possession Secured Promissory Note between the Debtor and the DIP Lender attached to the DIP Loan Order, including any subsequent amendments, modifications and/or supplements thereto, and the corresponding Security Agreement, as defined therein.

Disputed Claim means a Claim in a particular Class as to which a Proof of Claim has been Filed or is deemed to have been Filed under applicable law or an Administrative Claim as to which an objection has been Filed in accordance with the Plan, the Bankruptcy Code or the Bankruptcy Rules, and such objection has not been withdrawn or determined by a Final Order. For purposes of the Plan, a Claim is a Disputed Claim prior to any objection to the extent that: (a) the amount of a Claim specified in a Proof of Claim exceeds the amount of any corresponding Claim scheduled by the applicable Debtor in the Schedules of Assets and Liabilities; (b) any corresponding Claim scheduled by the applicable Debtor in the Schedules of Assets and Liabilities has been scheduled as disputed, contingent or unliquidated, irrespective of the amount scheduled; (c) no corresponding Claim has been scheduled by the applicable Debtor in the Schedules of Assets and Liabilities; or (d) the Claim is subject to disallowance pursuant to Bankruptcy Code section 502(d).

Distribution Record Date means the Confirmation Date.

Effective Date means the date that is the first Business Day after the Confirmation Date, on which: (a) no stay of the Confirmation Order is in effect; and (b) all conditions precedent to the effectiveness of the Plan have been satisfied or waived as provided in the Plan.

Entity means any Person, estate, trust, Governmental Unit, or United States trustee, as set forth in Bankruptcy Code section 101(15).

Estate Property means all right, title, and interest in and to any and all property of every kind or nature, owned by either Debtor or their Estates on the Petition Date pursuant to, and as defined by, Bankruptcy Code section 541.

Exculpated Parties means, collectively, the Debtors, the DIP Lender, and Texas Capital Bank, and with respect to each of the foregoing Entities, any of their respective current officers, directors, Professionals, advisors, accountants, attorneys, investment bankers, consultants, employees, agents and other representatives (but solely in their capacity as such).

Executory Contract means an executory contract or unexpired lease as such terms are used in Bankruptcy Code section 365, including all operating leases, capital leases, and contracts to which either Debtor is a party or beneficiary. For the avoidance of doubt, this term specifically excludes that certain Settlement Agreement dated as of July 30, 2019 between KPE LP and Praxair.

Exhibit means an exhibit annexed to the Plan, as may be amended, modified or supplemented.


6

Exit Financing means the new financing provided to the Debtors and Reorganized Debtors by the DIP Lender, with funds provided by TCB, upon the Effective Date of the Plan which is to include the DIP Loan Claim and the New Liquidity Financing.

Exit Financing Documents means those certain documents, including the credit agreement, security agreement and/or other loan documents related to or evidencing the loans, liens, collateral, and all terms, conditions, rights and obligations thereunder or in connection therewith, governing the Exit Financing, each in form and substance acceptable to the Debtors, the DIP Lender, and Texas Capital Bank, and to be dated as of the Effective Date.

File, Filed, or Filing means, as to any document or pleading, properly and timely file, filed or filing with the Bankruptcy Court or its authorized designee in the Bankruptcy Case.

Final DIP Loan Order means the Bankruptcy Court’s Final Order (I) Authorizing Debtor to (A) Obtain Postpetition Financing on a Secured, Superpriority Basis and (B) Use Cash Collateral, (II) Granting Adequate Protection, and (III) Granting Related Relief [Doc. No. 235].

Final Order means an order or judgment of the Bankruptcy Court, as entered on the docket in the Debtor’s Bankruptcy Case, the operation or effect of which has not been stayed, reversed, or amended and as to which order or judgment (or any revision, modification, or amendment thereof) the time to appeal or seek review or rehearing has expired and as to which no appeal or petition for review or rehearing was Filed or, if Filed, remains pending.

GAAP means the generally accepted accounting principles as in effect from time to time in the United States.

Geismar VI Creditors means those certain Holders of Claims against Debtor KPE LP in Class 6 arising from the Geismar VI Project that have filed Liens against the Geismar VI Project.

Geismar VI Creditor Claims means those certain Claims of the Geismar VI Creditors against Debtor KPE LP.

Geismar VI Project means Debtor KPE LP’s design, procurement of equipment, and construction to expand Praxair’s carbon monoxide production plant in Geismar, Louisiana pursuant to that certain fixed-price Agreement for Engineering, Procurement and Construction dated on or about October 10, 2016 between Debtor KPE LP and Praxair, as amended.

Geismar VI Retainage means the amount that Praxair remained indebted to KPE LP for the retainage under the Geismar VI Project contract as of the Petition Date.

General Unsecured Claim means an Unsecured Claim that is not: (a) an Administrative Claim; (b) a Professional Compensation Claim; (c) a Priority Tax Claim; (d) a Priority Non-Tax Claim; or (e) a Litigation Trust Claim. For the avoidance of doubt, this term specifically includes any Unsecured Claims arising from the Channelview Project, the Geismar VI Project, and the Johnson Project.

Governmental Unit means any governmental unit, as defined in Bankruptcy Code section 101(27).


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Holder means (a) as to any Claim, (i) the owner or holder of such Claim as such is reflected on the Proof of Claim Filed with respect to such Claim, or (ii) if no Proof of Claim has been Filed with respect to such Claim, the owner or holder of such Claim as such is reflected on the Schedules or the books and records of the Debtors or as otherwise determined by order of the Bankruptcy Court, or (iii) if the owner or holder of such Claim has assigned or transferred the Claim to a third party and the Debtors have received sufficient written evidence of such assignment or transfer, the assignee or transferee; and (b) as to any Equity Interest, the record owner or holder of such Equity Interest as shown on the stock register that is maintained by the Debtors or as otherwise determined by order of the Bankruptcy Court.

Impaired or Impairment means, with respect to a Class of Claims or Interests, a Class of Claims or Interests that is impaired within the meaning of Bankruptcy Code section 1124.

Insider has the meaning set forth in Bankruptcy Code section 101(31).

Interest, Equity Interest, or Membership Interest means any ownership interest in a Debtor, as of the Petition Date, including, but not limited to, an interest in any issued, unissued, authorized or outstanding shares or stock, including ordinary shares, common stock, preferred stock, or other instrument evidencing any fixed or contingent ownership interest in the Debtor, whether or not transferable, together with any warrants, options, or contractual rights to purchase or acquire such interests at any time and all rights arising with respect thereto.

Interim DIP Loan Order means the Fourth Agreed Interim Order (I) Authorizing Debtor to (A) Obtain Postpetition Financing on a Secured, Superpriority Basis and (B) Use Cash Collateral, (II) Granting Adequate Protection, (III) Scheduling a Final Hearing, and (IV) Granting Related Relief [Doc. No. 182] and any other interim orders of the Bankruptcy Court relating to financing.

IRS means the Internal Revenue Service.

Johnson Creditors means those certain Holders of Claims against Debtor KPE LP in Class 4 as a result of the Johnson Project and related Johnson Project Litigation that have filed Liens against the Johnson Project.

Johnson Creditor Claims means those certain Claims of the Johnson Creditors against Debtor KPE LP.

Johnson Interpleaded Funds means the approximately $10 million interpleaded by Targa Pipeline into the registry of the Midland County District Court and characterized by Targa Pipeline as alleged retainage under that certain construction contract between KPE LP and Targa Pipeline.

Johnson Project means Debtor KPE LP’s design, procurement of equipment, and construction of a 200 million cubic foot per day gas cryogenic processing plant in Midland County, Texas pursuant to that certain Agreement for Engineering, Procurement and Construction effective August 3, 2017 between Debtor KPE LP and Targa Pipeline, as amended.

Johnson Project Litigation means that certain litigation between the Debtors, Brandon Steele, the Johnson Creditors, and the owner of the Johnson Project, Targa Pipeline, which was initiated in the Midland County, Texas, District Court, and styled Hancock Mechanical LLC v. KP


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Engineering, LP, Cause No. CV54856. Since the Petition Date, the Johnson Project Litigation was (a) removed to the United States District Court for the Western District of Texas, (b) transferred to the United States District Court for the Southern District of Texas and (c) referred to this Bankruptcy Court.

Judicial Code means title 28 of the United States Code, 28 U.S.C. §§ 1 – 4001.

KPE Assigned Channelview Claims means any and all claims and Causes of Action of the Debtors against Targa Terminals and Saulsbury Industries, Inc. arising from the Channelview Project which shall be assigned to the KP Engineering Liquidation Trust to be pursued and liquidated for the benefit of the Liquidation Trust Beneficiaries.

KPE Assigned Johnson Claims means any and all claims and Causes of Action of the Debtors against Targa Pipeline arising from the Johnson Project which shall be assigned to the KP Engineering Liquidation Trust to be pursued and liquidated for the benefit of the Liquidation Trust Beneficiaries.

KPE Assigned Geismar VI Claims means any and all claims and Causes of Action of the Debtors against Praxair arising from the Geismar VI Project which shall be assigned to the KP Engineering Liquidation Trust to be pursued and liquidated for the benefit of the Liquidation Trust Beneficiaries.

KPE LLC means Debtor KP Engineering, LLC.

KPE LP means Debtor KP Engineering, LP.

KP Engineering Liquidation Trust or Liquidation Trust means the trust established under the Plan pursuant to the Liquidation Trust Agreement. With respect to any action required or permitted to be taken by the KP Engineering Liquidation Trust, the term includes the Liquidation Trustee, or any other person authorized to take such action in accordance with the Liquidation Trust Agreement.

KP Engineering Liquidation Trust Agreement or Liquidation Trust Agreement means the agreement creating the KP Engineering Liquidation Trust to be implemented pursuant to Article IV of the Plan, which terms are consistent with the terms of the Plan. To the extent the Liquidation Trust Agreement is not filed with the Plan, it will be filed in the Bankruptcy Cases prior to the Confirmation Hearing.

KP Engineering Liquidation Trust Assets or Liquidation Trust Assets means the assets transferred to the KP Engineering Liquidation Trust pursuant to the terms of this Plan and the Liquidation Trust Agreement. This term specifically includes: (i) the Debtors’ Avoidance Actions or other Chapter 5 Causes of Action specifically identified in Article IV.H. of the Plan; (ii) Committee Litigation; (iii) KPE Assigned Channelview Claims; (iv) KPE Assigned Johnson Claims; (v) KPE Assigned Geismar VI Claims; (vi) all of the Debtors’ other claims against and interests in the proceeds of the foregoing Causes of Action; and (vii) contingent, reversionary interests in the Channelview Retainage, the Geismar VI Retainage, and the Johnson Interpleaded Funds. For the avoidance of doubt, this term specifically excludes the Committee Litigation or Lienholder Litigation against TCB which are released herein, and all other right, interests, or claims of the Debtors’ Estates that could be asserted as Retained Causes of Action.


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KP Engineering Liquidation Trust Beneficiaries or Liquidation Trust Beneficiaries means a Person or Entity holding a Claim against either Debtor’s Estate which could be satisfied by the funds and proceeds of Committee Litigation, Avoidance Actions or other Chapter 5 Causes of Action, or other litigation benefiting the KP Engineering Liquidation Trust in accordance with their treatment under this Plan and the Liquidation Trust Agreement.

KP Engineering Liquidation Trustee or Liquidation Trustee means the trustee of the KP Engineering Liquidation Trust after his or her appointment pursuant to the Plan and the Liquidation Trust Agreement.

Lien means a lien, security interest, or other interest or encumbrance asserted against any Estate Property as defined in Bankruptcy Code section 101(37).

Lienholder Litigation means the lawsuit initiated by Hancock Mechanical, LLC, Pierce Construction and Maintenance Co., Inc., Bounds Construction II, LLC, Consolidated Electrical Distributors, Inc., and Dealers Electrical Supply Company the Committee against TCB entitled Hancock Mechanical, LLC, et al. v. Texas Capital Bank, National Ass’n, No. 20-03029, in the United States Bankruptcy Court for the Southern District of Texas, Houston Division.

New Liquidity Facility means the additional financing advanced by TCB pursuant to Article IV.E.3. and the Exit Financing Documents

Other Secured Claim means any Secured Claim that is not a DIP Loan claim or Secured Tax Claim. Other Secured Claims shall not include any such claims secured by Liens that are avoidable, unperfected, subject to subordination, or otherwise unenforceable.

Partner Receivable means sum of $13,169,773.12 owed and paid by Steele to KPE LP prior to the Petition Date in connection with certain prepetition transactions between Steele and the Debtors, the proceeds of which were paid by the Debtors to TCB to reduce the outstanding balance under the Prepetition Loan Documents.

Person means and includes natural persons, corporations, limited partnerships, general partnerships, joint ventures, trusts, land trusts, business trusts, unincorporated organizations, or other legal entities, regardless of whether they are governments, agencies, or political subdivisions thereof.

Petition Date means August 23, 2019, the date on which the Debtors commenced the Bankruptcy Cases.

Plan means the Chapter 11 Plan of Reorganization Filed by the Debtors, as such document may be amended, modified or supplemented from time to time.

Plan Documents means, collectively those documents in furtherance of Consummation of the Plan and/or to be executed in order to consummate the transactions contemplated under the Plan, which may be Filed by the Debtors with the Bankruptcy Court.

Praxair means Praxair, Inc.


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Prepetition Loan Documents means that certain Credit Agreement dated May 15, 2017 between Debtor KPE LP, as borrower, and TCB, as prepetition secured lender, as modified by (i) that certain Loan Modification Agreement, dated June 8, 2018 between Debtor KPE, LP and TCB; (ii) that certain Promissory Note dated June 8, 2018 executed by Debtor KPE LP and payable to TCB in the original principal amount of $25,000,000; (iii) that certain Security Agreement dated May 15, 2017 executed by Debtor KPE LP and TCB; (iv) that certain Guaranty Agreement dated May 15, 2017 executed by Brandon Steele in favor of TCB; and (v) all other documents, instruments and agreements executed and/or delivered in connection with the foregoing.

Priority Non-Tax Claim means a Claim asserted under Bankruptcy Code sections 507(a)(3-7 and 9-10).

Priority Tax Claim means a Claim asserted under Bankruptcy Code section 507(a)(8).

Pro Rata means the proportion that an Allowed Claim or an Allowed Interest in a particular Class bears to the aggregate amount of Allowed Claims or Allowed Interests in that Class.

Professional means an Entity: (a) employed pursuant to a Bankruptcy Court order in accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or on the Confirmation Date, pursuant to sections 327, 328, 329, 330, 331, and 363 of the Bankruptcy Code; or (b) awarded compensation and reimbursement by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code. For the avoidance of doubt, this term includes, but is not limited to, Professionals employed by the Debtors and the Committee.

Professional Compensation Claim means a Claim for compensation or reimbursement of expenses of a Professional incurred on and after the Petition Date and prior to the Effective Date, including fees and expenses incurred in preparing final fee applications and participating in hearings on such applications, and requested in accordance with the provisions of Bankruptcy Code sections 326, 327, 328, 330, 331, 502(b) or 1103.

Professional Compensation Claim Bar Date means, except as provided in Article II herein, forty-five (45) days after the Effective Date.

Professional Compensation Claim Objection Deadline means twenty-one (21) days after the Professional Compensation Claim Bar Date.

Proponent(s) means either or both Debtors, as the context requires.

Proof of Claim means a proof of Claim Filed against either Debtor in the Bankruptcy Cases by the applicable Bar Date.

Reinstate, Reinstated, or Reinstatement means, with respect to Claims and Interests, that the Claim or Interest shall be rendered Unimpaired in accordance with Bankruptcy Code section 1124.

Released Party(ies) means, individually and collectively as the context requires, and solely in their capacities as such, the Debtors, and with respect to the Debtors, their Professionals, successors, assigns, subsidiaries, Affiliates, managed accounts and funds, Current Directors and


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Officers, principals, shareholders, members, partners, managers, employees, subcontractors, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, fund advisors, and other professionals, and such Entities’ respective heirs, executors, estates, servants, and nominees. For the avoidance of doubt, this term specifically excludes those Persons or Entities identified in the chart set forth in Article IV.H. of the Plan.

Releasing Party means the Holders of Claims or Interests in Classes 1, 2, 3, 4, 5, 6 and 8 that are entitled to receive distributions under the Plan.

Reorganized Debtors means, collectively, the Debtors, or any successors or assigns, by merger, consolidation, or otherwise, on and after the Effective Date.

Retained Causes of Action means all Causes of Action that belong to the Debtors, but shall not include any action against a Released Party.

Schedules means, collectively, the Schedule of Assets and Liabilities, Schedule of Equity Security Holders, Schedule of Rejected Contracts and Leases, and Schedule of Retained Causes of Action filed by the Debtors in the Bankruptcy Cases.

Schedule of Assets and Liabilities means the schedules of assets and liabilities Filed by the Debtors in the Bankruptcy Cases, as may be amended, modified, or supplemented.

Schedule of Equity Security Holders means the schedule of Interests required to be Filed pursuant to Bankruptcy Rule 1007(a)(3).

Schedule of Rejected Contracts and Leases means the schedule of Executory Contracts and Unexpired Leases to be rejected by the Debtors, to be Filed as an Exhibit to the Plan.

Schedule of Retained Causes of Action means the Retained Causes of Action set forth on the schedule to be Filed as an Exhibit to the Plan.

Secured Claim means a Claim: (a) secured by a Lien on collateral to the extent of the value of such collateral, as determined in accordance with section 506(a) of the Bankruptcy Code or (b) subject to a valid right of setoff pursuant to section 553 of the Bankruptcy Code.

Secured Tax Claim means a Secured Claim for taxes held by a Governmental Unit, including cities, counties, school districts, and hospital districts, (a) entitled by statute to assess taxes based on the value or use of real and personal property and to obtain an encumbrance against such property to secure payment of such taxes or (b) entitled to obtain an encumbrance on property to secure payment of any tax claim specified in Bankruptcy Code section 507(a)(8). Secured Tax Claims shall not include any such Claims secured by liens / security interests that are avoidable, unperfected, subject to subordination, or otherwise unenforceable.

Securities Act means the Securities Act of 1933, as amended, 15 U.S.C. §§ 77a-77aa, or any similar federal, state, or local laws or regulations.

Subordinated Claim means a Claim that is subordinated to General Unsecured Claims pursuant to (a) a contract or agreement, (b) a Final Order declaring that such Claim is subordinated in


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right or payment, or (c) any applicable provision of the Bankruptcy Code, including Bankruptcy Code section 510, or other applicable law. Subordinated Claims specifically include any Claim for punitive damages provided for under applicable law.

Targa Pipeline means Targa Pipeline Mid-Continent WestTex LLC, a subsidiary of Targa Resources Corp.

Targa Terminals means Targa Terminals LLC.

Texas Capital Bank or TCB means Texas Capital Bank, N.A.

TCB Secured Claim means TCB’s Claim for the outstanding balance as of the Petition Date of $8,743,207.21 plus all interest and fees accrued thereon, owed by KPE LP, as borrower, to TCB, as the prepetition secured lender, pursuant those certain Prepetition Loan Documents entered into between KPE LP and TCB.

Unexpired Lease means a lease to which either Debtor is a party that is subject to assumption or rejection under Bankruptcy Code section 365.

Unimpaired means, with respect to a Class of Claims or Interests, a Class of Claims or Interests that is not impaired within the meaning of Bankruptcy Code section 1124.

Unsecured Claim means a Claim that is not a Secured Claim and that is not entitled to priority under Bankruptcy Code section 507(a)(1-9). The term specifically includes, pursuant to Bankruptcy Code section 506(a), any Claim of a creditor against either Debtor to the extent that such creditor’s Claim is greater than the value of the Lien securing such Claim, any Claim for damages resulting from rejection of any Executory Contract or Unexpired Lease under Bankruptcy Code section 365, any tort Claims or contractual Claims or Claims arising from damage or harm to the environment and, and any Claim not otherwise classified under the Plan.

B. Rules of Interpretation and Construction of Terms

For purposes of this Plan: (1) any reference in this Plan to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (2) any reference in this Plan to an existing document or Exhibit Filed or to be Filed means that document or Exhibit as it may have been or may be amended, supplemented, or otherwise modified; (3) unless otherwise specified, all references in this Plan to Sections or Articles are references to Sections or Articles of or to this Plan; (4) the words “herein,” “hereto,” “hereunder,” and other words of similar import refer to this Plan in its entirety rather than to a particular portion of this Plan; (5) captions and headings contained in the Plan are inserted for convenience and reference only, and are not intended to be part of or to affect the interpretation of the Plan; (6) wherever appropriate from the context, each term stated in either the singular or the plural includes the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and neuter gender; (7) any reference to an Entity as a Holder of a Claim or Interest includes the Entity’s successors and assigns; (8) any reference to docket numbers of documents Filed in the Bankruptcy Case are references to docket numbers under the Bankruptcy Court’s CM/ECF system; and (9) the rules of construction set forth in Bankruptcy Code section 102 and the Bankruptcy Rules shall apply.


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C. Computation of Time

All times referenced in this Plan are prevailing Central Time. In computing any period of time, date, or deadline prescribed or allowed in the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply. If the date on which a transaction may or must occur pursuant to the Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day.

D. Governing Law

Subject to the provisions of any contract, certificate of incorporation, by-law, instrument, release, or other agreement or document entered into in connection with the Plan, the rights and obligations arising pursuant to the Plan shall be governed by, and construed and enforced in accordance with, applicable federal law, including the Bankruptcy Code and the Bankruptcy Rules.

E. Reference to Monetary Figures

All references in the Plan to monetary figures shall refer to currency of the United States of America, unless otherwise expressly provided.

F. Incorporation of Documents by Reference

This Plan incorporates by reference certain documents relating to the Debtors that are not presented herein or delivered herewith. The documents that have been Filed in the Bankruptcy Case are incorporated by reference herein in their entirety, including all amendments thereto Filed prior to the date set for Confirmation, including the following documents: (a) the Debtors’ Schedules of Assets and Liabilities and all amendments thereto [Doc. Nos. 191,193, 373 and 374] and (b) the Statements of Financial Affairs, including exhibits [Doc. Nos. 192 and 194]. Documents and pleadings Filed in the Bankruptcy Case may be downloaded from the website maintained by the Debtors’ notice and claim agent, Omni Agent Solutions, at: https://cases.omniagentsolutions.com.

ARTICLE II. ADMINISTRATIVE CLAIMS AND PRIORITY CLAIMS

In accordance with Bankruptcy Code section 1123(a)(1), Administrative Claims, Professional Compensation Claims, the DIP Loan Claim, and Priority Tax Claims have not been classified for purposes of voting on, or receiving distributions under, the Plan, and, thus, are excluded from the Classes of Claims and Interests set forth in Article III hereof. A. Administrative Claims

Unless otherwise agreed to by the Holder of an Allowed Administrative Claim and the

Reorganized Debtors, each Holder of an Allowed Administrative Claim (other than Holders of Professional Compensation Claims, the DIP Loan Claim, and Claims for fees and expenses pursuant to section 1930 of chapter 123 of title 28 of the United States Code) will receive in full and final satisfaction of its Administrative Claim an amount of Cash, including Cash from Aviation Sale Proceeds, equal to the amount of such Allowed Administrative Claim in



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accordance with the following: (i) if an Administrative Claim is Allowed on or prior to the Effective Date, on the Effective Date or as soon as reasonably practicable thereafter; or (ii) if such Administrative claim is not Allowed as of the Effective Date, no later than ten (10) days after the date on which an order allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter. Notwithstanding anything contained in this Article, the Debtors shall continue paying their employees, utilities, insurance finance premiums, and other workforce and insurance obligations in accordance with the Bankruptcy Court’s orders and approved practices. [Doc. Nos. 40, 48, 49, 51 and 52]. For the avoidance of doubt, to the extent a Holder of an Administrative Claim is not being paid by the Debtors in the ordinary course, such Holder must File a request for payment of such Administrative Claim by the Administrative Claim Bar Date as set forth below.

Except for Professional Compensation Claims, and unless previously Filed, requests for

payment of Administrative Claims must be Filed and served on the Reorganized Debtors no later than the Administrative Claim Bar Date. Objections to such requests must be Filed and served on the Reorganized Debtors and the requesting party by the later of (i) thirty (30) days after the Effective Date; or (ii) thirty (30) days after the Filing of the applicable request for payment of the Administrative Claims, if applicable. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts, if any, of Administrative Claims shall be determined by, and satisfied in accordance with a Final Order of, the Bankruptcy Court.

Holders of Administrative Claims that are required to File and serve a request for such

payment of such Administrative Claims that do not File and serve such request by the Administrative Claim Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Claims against the Reorganized Debtors or their property, and such Administrative Claims shall be deemed discharged as of the Effective Date without the need for any objection from the Reorganized Debtors or any action by the Bankruptcy Court.

B. DIP Loan Claim

The DIP Loan Claim shall be Allowed in an amount equal to the amount of such DIP Loan Claim accrued or incurred as of the Effective Date, without setoff, deduction or counterclaim, subject to the provisions of the Interim DIP Loan Order, Final DIP Loan Order, DIP Facility Documents, and this Plan. On the Effective Date, except to the extent that the Holder of the Allowed DIP Loan Claim agrees to a less favorable treatment, the Allowed DIP Loan Claim shall be refinanced and converted into Exit Financing which, in addition to the New Liquidity Facility, shall consist of a $3.25 million post-petition term loan facility pursuant to the terms and conditions of the applicable Exit Financing Documents to be executed between Debtor KPE LP, the DIP Lender, and TCB.

As more fully set forth in Article IV.E – Exit Financing, below, in accordance with the

Exit Financing Documents, and in exchange for the mutual promises and covenants therein, BTS Enterprises shall fund the Reorganized Debtors’ ongoing post-Confirmation operations and expenses through and including the Effective Date. The Exit Financing that is actually funded from the Confirmation Date through and including the Effective Date shall be included in the DIP Loan Claim and subject to all terms and conditions, and secured by the same DIP Liens and


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security interests, that are provided in the Final DIP Loan Order and other DIP Facility Documents. Specifically, TCB, as assignee of the DIP Loan Claim from BTS Enterprises pursuant to the Final DIP Loan Order and that certain Collateral Assignment of Note, shall retain its second priority DIP Liens (subordinated only to the TCB Secured Claim) and security interest in, to and against the applicable collateral for all amounts relating to its DIP Loan Claim. The DIP Loan Claim shall mature and be payable to the DIP Lender in accordance with the terms and conditions of the applicable Exit Financing Documents between Debtor KPE LP and BTS Enterprises.

C. Professional Compensation Claims

All requests for payment of Professional Compensation Claims for services rendered and reimbursement of expenses incurred prior to the Effective Date must be Filed no later than the Professional Compensation Claim Bar Date. Objections to Professional Compensation Claims must be Filed and served on the Reorganized Debtors and the Professional to whose application the objections are addressed no later than the Professional Compensation Claim Objection Deadline. The Bankruptcy Court shall determine the Allowed amounts of such Professional Compensation Claims after notice and hearing in accordance with the procedures established by the Bankruptcy Court, including the Compensation Procedures as set forth and defined in the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals [Doc. No. 369]. Allowed Professional Compensation Claims shall be paid by the Reorganized Debtors in Cash, including Cash from Aviation Sale Proceeds, within ten (10) days of the entry of a Final Order allowing such Claims. D. Priority Tax Claims

Except (a) to the extent that the Holders of Allowed Priority Tax Claims have not already been paid, satisfied or otherwise released prior to the Effective Date, and (b) to the extent that a Holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, then in full and final satisfaction, settlement, release, and discharge of, and in exchange for each Allowed Priority Tax Claim, each Holder of Allowed Priority Tax Claim shall receive from the applicable Reorganized Debtor on the later of (i) the Effective Date; (ii) the date such Priority Tax Claim becomes an Allowed Claim; (iii) the date on which such Allowed Priority Tax Claim first becomes due and payable; or (iv) as soon thereafter as is reasonably practicable, an amount in Cash, including Cash from Aviation Sale Proceeds, equal to the unpaid amount of such Allowed Priority Tax Claim; provided, however, that the applicable Reorganized Debtor shall have the right to pay any Allowed Priority Tax Claim, or the remaining balance of such Claim, in full in Cash at any time on or after the Effective Date, without premium or penalty.

ARTICLE III.

CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS

A. Classification in General

Except for the Claims addressed in Article II of the Plan, all Claims and Interests are classified in the Classes set forth below in accordance with section 1122 and 1123(a)(1) of the Bankruptcy Code. A Claim or an Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in other


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Classes to the extent that any portion of the Claim or Interest qualifies within the description of such other Classes. A Claim or an Interest also is classified in a particular Class for the purpose of receiving distributions under the Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and has not been paid, released, or otherwise satisfied.

B. Summary of Classification of Claims and Interests

The classification of Claims and Interests against the Debtors pursuant to the Plan is as follows:

Class Claims and Interests Status Voting Rights

Class 1 Allowed Priority Non-Tax Unimpaired Not Entitled to Vote

Class 2 Allowed Texas Capital Bank Secured Claim

Impaired Entitled to Vote

Class 3 Allowed Other Secured Claims Impaired Entitled to Vote

Class 4 Allowed Johnson Creditor Claims Impaired Entitled to Vote

Class 5 Allowed Channelview Creditor Claims Impaired Entitled to Vote

Class 6 Allowed Geismar VI Creditor Claims Impaired Entitled to Vote

Class 7 Allowed General Unsecured Claims Impaired Entitled to Vote

Class 8 Allowed Equity Interests Impaired Entitled to Vote

C. Treatment of Claims and Interests

1. Class 1 – Except to the extent that a Holder of an Allowed Priority Non-Tax Claim agrees to a less favorable treatment, each Holder of an Allowed Priority Non-Tax Claim shall receive, on or after the Effective Date, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Priority Non-Tax Claim, (i) payment in full in Cash of its Allowed Class 1 Claim; or (ii) such other treatment as is consistent with the requirements of Bankruptcy Code section 1129(a)(9).

Class 1 is Unimpaired under the Plan. Holders of Allowed Claims in Class 1 are

conclusively presumed to have accepted the Plan, and solicitation of acceptances with respect to such Class is not required.

2. Class 2 – On the Effective Date, except to the extent Texas Capital Bank agrees to

a less favorable treatment, the principal balance, fees and interest of the TCB Secured Claim shall be refinanced and converted into a post-petition term loan pursuant to the terms and conditions of the applicable Exit Financing Documents. As more fully set forth in the Exit Financing Documents, and notwithstanding anything to the contrary therein, payment of the


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Allowed TCB Secured Claim in Class 2 shall consist of the following: (i) Monthly principal and interest payments based on a sixty (60) month amortization

schedule.

(ii) On May 1st of each calendar year after the Effective Date (or, if May 1st is not a Business Day, then the first Business Day thereafter), an annual principal payment equal to seventy-five percent (75%) of the prior year’s excess cash flow of KPE LP, as such excess cash flow may be calculated and determined by the Exit Financing Documents.

(iii) To the extent any portion of the Allowed TCB Secured Claim remains unsatisfied

after payment of the foregoing, such Holder of the Allowed TCB Secured Claim shall receive all remaining principal upon the first Business Day that is the twenty-fourth (24th) month after the Effective Date.

(iv) The Class 2 Claim may be paid, purchased or refinanced by BTS Enterprises, Brandon Steele or any related Entity at any time following closing on terms acceptable to TCB.

As more fully set forth in the Exit Financing Documents, and notwithstanding anything to

the contrary therein, the Exit Financing shall be secured by, among other things, the assets of the Reorganized Debtors, and TCB shall have and retain its first priority lien and security interest in, to and against such collateral for all amounts relating to the Prepetition Loan Documents and the Allowed TCB Secured Claim. All of TCB’s liens granted in the Prepetition Loan Documents shall relate back to the date of their original perfection, without interruption, and without regard to applicable federal, state or local filing and recording statutes, nunc pro tunc, as of the date of Confirmation of the Plan. The current assumption is for the Debtors to emerge from Chapter 11 with an Effective Date of May 31, 2020. The first principal payment would occur by June 30, 2020 (at the end of the quarter post-emergence).

On the Confirmation Date, and in consideration of (i) the undertaking set forth herein; (ii) the agreement to provide Exit Financing; (iii) the release of Liens on the Aviation Sale Proceeds; (iv) the subordination of its Liens to any validly, timely and properly obtained Liens in the Channelview Retainage, the Geismar VI Retainage, and Johnson Interpleaded Funds and the retention of any first Lien in the Debtors’ interest in those funds; and (v) other good and valuable consideration, the Debtors shall automatically and forever remise, release and discharge TCB and each of its subsidiaries and affiliates, corporations, companies, divisions, predecessors, successors and assigns and each and all of their directors, officers, employees, attorneys, accountants, consultants and other agents, of and from any and all claims, demands, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, costs, expenses, accounts, damages, judgments, losses and liabilities of whatever kind or nature, in law, equity or otherwise, whether known or unknown, whether or not concealed or hidden, which they have had, may have had, or now have, or which any of their predecessors, successors or assigns hereafter can, shall or may have, for or by reason of any matter, cause or thing whatsoever, whenever arising to and including the Confirmation Date, including, but without limitation, any and all claims or causes of action which were or might have been asserted in the Bankruptcy


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Cases, or any adversary proceeding that may be commenced or may have been commenced in connection therewith, including any right to surcharge the collateral of TCB under section 506(c) of the Bankruptcy Code. The release shall be immediately effective upon Confirmation of the Plan, without the necessity of any further act and shall be binding upon the Debtors and all of their subsidiaries, affiliates, trustees, receivers, managing agents, disbursing agents, and any subsequent Chapter 7 or Chapter 11 trustee that may be appointed in these Bankruptcy Cases. For the avoidance of all doubt, and notwithstanding anything to the contrary in this this Plan, the foregoing release provisions specifically apply to any Committee Litigation that has been, or could have been, initiated against TCB by the Committee during the Bankruptcy Cases pursuant to the Bankruptcy Court’s order [Doc. No. 399] and to the Lienholder Litigation. Within five (5) Business Days of the Confirmation Date, the Committee Litigation and Lienholder Litigation against TCB shall be dismissed with prejudice to refiling.

Class 2 is Impaired under the Plan. Holders of Allowed Claims in Class 2 are entitled to vote to accept or reject the Plan.

3. Class 3 – Class 3 shall consist of other Secured Claims that are not DIP Loan

Claims, TCB Secured Claims, or Secured Tax Claims. On or after the Effective Date, and except to the extent that a Holder of an Allowed Other Secured Claim agrees to a less favorable treatment, each Holder of an Allowed Other Secured claim shall receive, in fully and final satisfaction, compromise, release, and discharge of and in exchange for each Other Secured Claim, the following:

(i) As relates to any collateral (other than TCB’s collateral) that is subject to a

prepetition agreement and that has not been sold or surrendered during the Bankruptcy Cases, the Debtors shall, solely as relates to such collateral, remain bound by and perform in accordance with the applicable agreement, including, but not limited to, making such payments as remain outstanding under the respective agreements in accordance with the terms and conditions thereof; provided, however, that the maturity of such prepetition agreements shall be extended as set forth in the Exhibits to this Plan, which additional payments shall be made as cure for any payments not made by the Debtors. For the avoidance of doubt, any Lien granted in or to the respective Holder’s collateral pursuant to the respective agreement shall be retained by, and for the benefit of, such Holder of an Allowed other Secured Claim in Class 3, subject to TCB’s Liens arising from the TCB Secured Claim and/or the Exit Financing.

(ii) Except as provided in the Plan with respect to the Aviation Sale Proceeds, as

relates to any collateral that has been sold pursuant to a Bankruptcy Court order during the Bankruptcy Cases, (x) a secured claim in the amount of such sale proceeds, which shall be paid in accordance with the applicable Bankruptcy court order, and (y) a deficiency claim, which shall be treated as a General Unsecured Claim in Class 7.

(iii) For purposes of voting and Confirmation, each Other Secured Claim shall be classified in separate subclasses within Class 3 – i.e. 3(a); 3(b); 3(c); etc.


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4. Class 4 – The members of Class 4 shall consist of the Johnson Creditors as

Holders of Johnson Creditor Claims against the Debtors arising from the Johnson Project and related Johnson Project Litigation. Prior to the Petition Date, the Debtors and Brandon Steele were involved in the Johnson Project Litigation with all, or substantially all, of the Johnson Creditors, and the owner of the Johnson Project, Targa Pipeline. On the Effective Date, and except to the extent that a Holder of an Allowed Johnson Creditor Claim agrees to a less favorable treatment, each Holder of an Allowed Johnson Creditor Claim will receive, receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 4 Claim, the following treatment under the Plan:

(i) Upon (a) the settlement of the Johnson Project Litigation or (b) entry of a final

order in the Johnson Project Litigation, the Johnson Interpleaded Funds will be distributed to Holders of Allowed Johnson Creditor Claims pursuant to the terms of such settlement or final order. The Plan shall not alter the rights, if any, of any of the Johnson Creditors (x) as to the Johnson Interpleaded Funds or (y) against Targa Pipeline or its property.

(ii) To the extent any Allowed Johnson Creditor Claim remains unsatisfied after payment of the foregoing, such Holder of the Allowed Johnson Creditor Claim shall be a Liquidation Trust Beneficiary of the KP Engineering Liquidation Trust and be entitled to an Allowed General Unsecured Claim in Class 7 in the amount of the deficiency.

(iii) To the extent any Johnson Interpleaded Funds remain undistributed after satisfaction of the Allowed Johnson Creditor Claims, such excess Johnson Interpleaded Funds shall be transferred, without further order of the Bankruptcy Court, to the KP Engineering Liquidation Trust and distributed pursuant to the terms of the Liquidation Trust Agreement.

Class 4 is Impaired under the Plan. Holders of Allowed Claims in Class 4 are entitled to

vote to accept or reject the Plan.

5. Class 5 – The members of Class 5 shall consist of the Channelview Creditors as Holders of Channelview Creditor Claims against KPE LP arising from the Channelview Project. Prior to the Petition Date, KPE LP completed all, or substantially all, of the work relating to the Channelview Project, which is owned by Targa Terminals. On the Effective Date, and except to the extent that a Holder of an Allowed Channelview Creditor Claim agrees to a less favorable treatment, each Holder of an Allowed Channelview Creditor Claim will receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 5 Claim, the following treatment under the Plan:

(i) The Channelview Retainage will be distributed to the Channelview Creditors

pursuant to applicable state law. The Plan shall not alter any of the rights of the Channelview Creditors (x) as to the Channelview Retainage or (y) against Targa Terminals or its property.


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(ii) To the extent any Allowed Channelview Creditor Claim remains unsatisfied after payment of the foregoing, such Holder of the Allowed Channelview Creditor Claim shall be a Liquidation Trust Beneficiary of the KP Engineering Liquidation Trust and be entitled to an Allowed General Unsecured Claim in Class 7 in the amount of the deficiency.

(iii) To the extent any portion of the Channelview Retainage remains undistributed after satisfaction of the Allowed Channelview Creditor Claims, such excess Channelview Retainage shall be transferred, without further order of the Bankruptcy Court, to the KP Engineering Liquidation Trust and distributed pursuant to the terms of the Liquidation Trust Agreement.


6. Class 6 – The members of Class 6 shall consist of the Geismar VI Creditors as

Holders of Geismar VI Creditor claims against KPE LP arising from the Geismar VI Project. Prior to the Petition Date, KPE LP completed all, or substantially all, of the work relating to that certain Geismar VI Project, which is owned by Praxair. On the Effective Date, and except to the extent that a Holder of an Allowed Geismar VI Creditor Claim agrees to a less favorable treatment, each Holder of an Allowed Geismar VI Creditor Claim will receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 6 Claim, the following treatment under the Plan:

(i) The Geismar VI Retainage will be distributed to the Geismar VI Creditors

pursuant to applicable state law. The Plan shall not alter any of the rights of the Geismar VI Creditors (x) as to the Geismar VI Retainage or (y) against Praxair or its property.

(ii) To the extent any Allowed Geismar VI Creditor Claim remains unsatisfied after payment of the foregoing, such Holder of the Allowed Geismar VI Creditor Claim shall be a Liquidation Trust Beneficiary of the KP Engineering Liquidation Trust and be entitled to an Allowed General Unsecured Claim in Class 7 in the amount of the deficiency.

(iii) To the extent any portion of the Geismar VI Retainage remains undistributed after satisfaction of the Allowed Geismar VI Creditor Claims, such excess Geismar VI Retainage shall be transferred, without further order of the Bankruptcy Court, to the KP Engineering Liquidation Trust and distributed pursuant to the terms of the Liquidation Trust Agreement.


vote to accept or reject the Plan.

7. Class 7 – Class 7 shall consist of the Allowed General Unsecured Claims of all of the Debtors’ General Unsecured Creditors that are not Johnson Creditors, Channelview Creditors or Geismar VI Creditors. On the Effective Date, except to the extent that a Holder of an Allowed Class 7 Claim agrees to a less favorable treatment, Holders of Allowed Class 7 Claims shall


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receive, in full and final satisfaction, compromise, settlement, release, and discharge of and in exchange for each Class 7 Claim, an interest in the KP Engineering Liquidation Trust in accordance with the Liquidation Trust Agreement. Distributions to such Holders of Allowed Class 7 Claims shall be distributed by the Liquidation Trustee in accordance with the Liquidation Trust Agreement.


vote to accept or reject the Plan. 8. Class 8 – Class 8 shall consist of the Allowed Equity Interests in the Debtors. On

the Effective Date, in exchange for (i) the value provided by agreeing to work for the Debtors during the Bankruptcy Cases (including while being a target of Committee Litigation); (ii) their continued work for the Reorganized Debtors after Confirmation; and (iii) an agreement to contribute $[xxxxxxx] of Cash into the Reorganized Debtors, Holders of Equity Claims and Interests in the Debtors shall receive their equity in the Debtors.


D. Special Provision Governing Unimpaired Claims

Except as otherwise provided in the Plan, nothing under the Plan shall affect the Debtors’ rights with respect to any Unimpaired Claims, including, all rights in respect of legal and equitable defenses to, or setoffs or recoupments against, any such Unimpaired Claims.

E. Elimination of Vacant Classes

Any Class of Claims or Interests that does not have a Holder of an Allowed Claim or Allowed Interest or a Claim or Interests temporarily Allowed by the Bankruptcy Court as of the date of the Confirmation Hearing shall be deemed eliminated from the Plan.

F. Controversy Concerning Impairment

If any controversy arises as to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and hearing, determine such controversy concerning impairment. Failure to timely File an objection in the Bankruptcy Case shall result in such Person or Entity waiving any objection to the Impairment classifications set forth in the Plan.

G. Subordinated Claims

The allowance, classification, and treatment of all Allowed Claims and Allowed Interests and the respective distributions and treatments under the Plan take into account and conform to the relative priority and rights of the Claims and Interests in each Class in connection with any contractual, legal, and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code, or otherwise. Pursuant to section 510 of the Bankruptcy Code, the Reorganized Debtors reserve the


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right to re-classify any Allowed Claim or Interest in accordance with any contractual, legal, or equitable subordination relating thereto.

H. No Waiver

Nothing contained in the Plan shall be construed to waive the Debtors’ or other Person’s right to object on any basis to any Claim or Interest.

ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN

A. Corporate Existence

Except as otherwise provided in the Plan, the Debtors shall continue to exist after the Effective Date as a separate limited partnership and limited liability company, respectively, with all the powers of a limited partnership or limited liability company, as the case may be, pursuant to the applicable law in the jurisdiction in which the Debtors are formed and pursuant to their respective by-laws (or other formation documents) in effect prior to the Effective Date, except to the extent such by-laws (or other formation documents) are amended under the Plan or otherwise. To the extent such documents are amended, they are deemed to be amended pursuant to the Plan and require no further action or approval (other than any requisite filings required under applicable state, or federal law).

B. Reorganized Debtors

On the Effective Date, the Reorganized Debtors shall have the authority to adopt any other agreements, documents, and instruments and to take any other actions contemplated under the Plan as necessary to consummate the Plan and establish the KP Engineering Liquidation Trust.

C. Directors and Officers of the Reorganized Debtors

On the Effective Date, the Current Directors and Officers of the Debtors shall be established as the Directors and Officers of the Reorganized Debtors. D. Vesting of Assets in the Reorganized Debtors

On the Effective Date all property in the Estates, all Retained Causes of Action, and any property acquired by the Debtors pursuant to the Plan shall vest in the respective Reorganized Debtors, free and clear of all Liens, Claims, charges, or other encumbrances, except those Liens granted under any agreement, instrument, or other document incorporated in the Plan, including the Exit Financing Documents, or as otherwise provided for in the Plan; provided, however, that as set forth in Sections G and H, below, the KP Engineering Liquidation Trust Assets shall be transferred to the Liquidation Trust pursuant to the Liquidation Trust Agreement. For the avoidance of doubt, only the claims of the Debtors’ Estates to the proceeds of Committee Litigation, Avoidance Actions, and other Chapter 5 Causes of Action are included in the Liquidation Trust Assets as set forth in Section G, below. All other rights, interests, or claims of


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the Debtors’ Estates that could be asserted pursuant to any state or federal law are Retained Causes of Action that shall vest in the Reorganized Debtors.

On and after the Effective Date, the Reorganized Debtors may operate their businesses

and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Retained Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.

E. Exit Financing

1. In General. On the Effective Date, the Reorganized Debtors, BTS Enterprises and TCB shall execute the Exit Financing Documents. The Exit Financing documents shall be filed as Plan Documents or otherwise attached as Exhibits to the Plan. It shall be a condition precedent to the execution of the Exit Financing Documents by TCB that certain indebtedness of BTS Enterprises and Brandon Steele be restructured as set forth in the Exhibits hereto. To the extent that this Plan is not confirmed with Exit Financing terms acceptable to TCB and/or such restructuring with Brandon Steele and BTS Enterprises is not completed on terms acceptable to TCB, then TCB shall have no obligation under this Plan or the restructuring with Brandon Steele and BTS Enterprises.

2. Conversion of the DIP Facility. In accordance with the Exit Financing Documents, and notwithstanding anything to the contrary therein, TCB, through a new $3.25 million post-petition term loan facility to BTS Enterprises, will provide Exit Financing to Debtor KPE LP. Such Exit Financing shall be used to refinance the existing BTS Enterprises debt to TCB pursuant to the terms and conditions of the applicable Exit Financing Documents. Brandon Steele agrees to execute a new secured guaranty of the Exit Financing provided to KPE LP. The Exit Financing will be cross-pledged and cross-defaulted with all debts of the Reorganized Debtors, KP Realty, LLC, KP Realty II, LLC, BTS Enterprises, and Brandon Steele. BTS Enterprises shall retain its second priority DIP Liens (subordinated only to the TCB Secured Claim) and security interest in, to, and against the applicable collateral for all amounts relating to its DIP Loan Claim, including all rights granted to BTS Enterprises in the DIP Note, DIP Facility Documents, Interim DIP Loan Order, and Final DIP Loan Order, which shall be collaterally assigned to TCB. Payment of the Exit Financing as it relates to the DIP Loan Claim shall consist of the following:

(i) Monthly principal and interest payments based on a sixty (60) month amortization

schedule.

(ii) Beginning on May 1st (or, if May 1st is not a Business Day, then the first Business Day thereafter) of the year the Allowed TCB Secured Claim in Class 2 is paid in full, and on May 1st of each calendar year thereafter, an annual principal payment equal to seventy-five percent (75%) of the prior year’s excess cash flow of KPE LP, as such excess cash flow may be calculated and determined by the Exit Financing Documents. If payment in full of the Allowed TCB Secured Claim in Class 2 occurs after May 1st of any given calendar year, the first excess cash flow payments shall begin on May 1st of the following calendar year.


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(iii) To the extent any portion of the Exit Financing, as it specifically relates to the DIP Loan Claim and conversion of the DIP Facility, remains unsatisfied after payment of the foregoing, such unsatisfied Exit Financing portion shall be paid in a lump sum at maturity pursuant to the terms and conditions of the Exit Financing Documents, or at such other time as the Reorganized Debtors and TCB may agree.

3. New Liquidity Facility. In accordance with the Exit Financing Documents, and

notwithstanding anything to the contrary therein, TCB, through a new $1.5 million revolving credit facility to BTS Enterprises, will provide Exit Financing to Debtor KPE LP. Such Exit Financing shall be used by the Reorganized Debtors as general working capital pursuant to the terms and conditions of the applicable Exit Financing Documents. Brandon Steele agrees to execute a new secured guaranty of the Exit Financing provided to KPE LP. The Exit Financing will be cross-pledged and cross-defaulted with all debts of the Reorganized Debtors, KPE Realty, BTS Enterprises, and Brandon Steele. BTS Enterprises shall have a second priority Lien (subordinated only to the TCB Secured Claim) and security in, to, and against the assets of the Reorganized Debtors securing the amount of the New Liquidity Facility, including all rights granted to BTS Enterprises in the Exit Financing Documents, which shall be collaterally assigned to TCB. Payment of the Exit Financing as it specifically relates to the New Liquidity Facility provided by TCB, shall consist of the following:

(i) Monthly interest payments.

(ii) To the extent any portion of the Exit Financing, as it specifically relates to the

new liquidity facility, remains unsatisfied after payment of the foregoing, such unsatisfied Exit Financing portion shall be paid in a lump sum at maturity pursuant to the terms and conditions of the Exit Financing Documents, or at such other time as the Reorganized Debtors and TCB may agree.

F. Establishment of the KP Engineering Liquidation Trust

On the Effective Date, the Liquidation Trustee shall sign the Liquidation Trust

Agreement and, in his or her capacity as Liquidation Trustee, accept all Liquidation Trust Assets on behalf of the beneficiaries thereof, and be authorized to obtain, seek the turnover, liquidate, and collect all of the Liquidation Trust Assets not in his or her possession. The KP Engineering Liquidation Trust will then be deemed created and effective without any further action by the Bankruptcy Court or any Person as of the Effective Date. Thereupon, and except as expressly provided in the Plan or Liquidation Trust Agreement, the Debtors shall not have any interest in, or with respect to, the Liquidation Trust Assets.

The Liquidation Trust shall be established for the purposes of (i) liquidating the

Liquidation Trust Assets; (ii) prosecuting and resolving the litigation and Causes of Action belonging to the Liquidation Trust; (iii) resolving the Class 7 Claims of General Unsecured Creditors; (iv) maximizing recovery of the Liquidation Trust Assets for the benefit of the beneficiaries thereof; and (v) distributing the proceeds of the Liquidation Trust Assets to the beneficiaries in accordance with this Plan and the Liquidation Trust Agreement, with no objective


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to continue or engage in the conduct of a trade or business, except only in the event and to the extent necessary for, and consistent with, the litigation purposes of the Liquidation Trust.

G. Appointment of KP Engineering Liquidation Trustee

The Liquidation Trustee shall be selected by the Debtors, approved by the Bankruptcy

Court, and appointed pursuant to the Confirmation Order. Following appointment, the Liquidation Trustee shall act only in accordance with the Plan and the Liquidation Trust Agreement, and in such capacity shall have the same powers as the board of directors and officers of the Debtors, subject to the provisions hereof and of the Liquidation Trust Agreement (and all bylaws and related corporate documents are deemed amended by this Plan to permit and authorize the same). The Liquidation Trustee shall continue to perform his or her duties until all proceeds of the Liquidation Trust Assets have been fully liquidated and distributed. The selection of any successor Liquidation Trustee, if necessary, shall be made by the Bankruptcy Court in accordance with the Liquidation Trust Agreement after notice and a hearing.

H. Vesting and Transfer of Assets to the KP Engineering Liquidation Trust

Pursuant to section 1141(b) of the Bankruptcy Code, the KP Engineering Liquidation

Trust Assets shall vest in the Liquidation Trust free and clear of all liens, Claims and Interests, except as otherwise specifically provided in this Plan or in the Confirmation Order. Except as provided herein with respect to Committee Litigation against TCB, the Liquidation Trust Assets shall include all of the Debtors’ claims against, and interests in, the proceeds of all Avoidance Actions and Committee Litigation, including, but not limited to, the following:

Defendant Cause of Action Pursuant to 11 U.S.C. §§ 105, 541, 542, 544,

547, 548, 550, 551 and TUFTA § 24.001 et seq. (as applicable)

Brandon T. Steele Partnership distributions of at least $55.7 million; increases to the Partner Receivable of at least $12.7 million; breach of fiduciary duties; and guaranty of bank loans with TCB for Steele’s benefit

Tony D. Freeman Partnership distributions of at least $4 million Ric Steele Partnership distributions of at least $2.8 million Ken Baxter Partnership distributions of at least $2.5 million BTS Enterprises, Inc. Partnership distributions of at least $3.2 million; transfer of equity

interests in KPE LP’s former subsidiaries Ryno Engineering, LLC Partnership distributions of at least $6 million Steele Resources, LLC Shared services payments of at least $7.8 million and lease

payments of at least $160,000 KP Realty, LLC Lease payments of at least $2.9 million KP Realty II, LLC Lease payments of at least $667,000 BTS Aviation Payments to BTS Aviation related to the airplane of at least $3.2

million West Village Realty, LLC Payments to West Village of at least $5.2 million

Pursuant to the Bankruptcy Court’s order [Doc. No. 399], the Committee has standing to pursue, and has already initiated Committee Litigation related to, some or all of the foregoing


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Causes of Action on behalf of the Debtors’ creditors. For the avoidance of doubt, the foregoing Causes of Action and Committee Litigation constitute the only assets of either Estate to be included in the Liquidation Trust Assets. I. KP Engineering Liquidation Trust Expenses

Subject to the provisions of the Liquidation Trust Agreement, all costs, expenses and obligations incurred by the Trustee in administering the applicable provisions of this Plan, the Liquidation Trust, or in any manner connected, incidental or related thereto, in effecting distributions from the Liquidation Trust shall be a charge against the Trust Assets remaining from time to time in the hands of the Trustee. Such expenses shall be paid in accordance with the provisions of this Plan and the Liquidation Trust Agreement.

J. Beneficiaries of the KP Engineering Liquidation Trust

Except as provided in the Plan and Liquidation Trust Agreement with respect to repayment of the Exit Financing, Holders of Allowed Class 7 Claims entitled to receive distributions shall be the only Liquidation Trust Beneficiaries of the KP Engineering Liquidation Trust. Such Liquidation Trust Beneficiaries shall be bound by the terms and conditions of this Plan and the Liquidation Trust Agreement. The interests of the Liquidation Trust Beneficiaries in the Liquidation Trust shall be uncertificated and nontransferable. Distributions from the Liquidation Trust shall be made from the Liquidation Trust’s cash on hand, including cash from the successful prosecution or settlement of any Causes of Action included in the Liquidation Trust Assets. Distributions shall be made in accordance with the following priorities: (i) payment of the reimbursable expenses of the Liquidation Trustee; and (ii) payment of Allowed Class 7 Claims an amount in Cash equal to the respective Holder’s Pro Rata share of the KP Engineering Liquidation Trust. K. Preservation of Right to Conduct Investigations

The preservation for the Liquidation Trust of any and all rights to conduct investigations pursuant to Bankruptcy Rule 2004 is necessary and relevant to the liquidation and administration of the Liquidation Trust Assets. Accordingly, the Liquidation Trustee shall have the same rights as the Debtors and the Committee to conduct investigations pursuant to Bankruptcy Rule 2004 as those held by the Debtors and Committee prior to the Effective Date. Such powers to investigation pursuant to Bankruptcy Rule 2004 shall vest with the Liquidation Trustee and shall continue until dissolution of the KP Engineering Liquidation Trust. L. Federal Income Tax Treatment of KP Engineering Liquidation Trust

For federal income tax purposes, it is intended that the KP Engineering Liquidation Trust be classified as a liquidating trust under section 301.7701-4 of the Treasury regulations and that such trust be owned by its Liquidation Trust Beneficiaries. Accordingly, for federal income tax purposes, it is intended that the Liquidation Trust Beneficiaries be treated as if they had received a distribution from the Debtors’ Estates of an undivided interest in each of the Liquidation Trust Assets (to the extent of the value of their respective shares in the applicable assets) and then


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contributed such interests to the Liquidation Trust, and the Liquidation Trust Beneficiaries will be treated as grantors and owners thereof.

M. Termination of the KP Engineering Liquidation Trust

The KP Engineering Liquidation Trust shall terminate upon the date on which all of the following events have occurred: (i) the Liquidation Trust Assets, including Causes of Action transferred and assigned to the Liquidation Trust, are fully resolved, abandoned or liquidated in accordance with the Plan and Liquidation Trust Agreement; (ii) the Cash proceeds have been completely distributed in accordance with the Plan and Liquidation Trust Agreement; (iii) all tax returns and any other filings or reports have been filed with the appropriate state or federal regulatory authorities; and (iv) the order closing the Bankruptcy Cases is a Final Order. Upon the occurrence of each of the foregoing events, the duties, responsibilities and powers of the Liquidation Trustee shall terminate, and the Liquidation Trustee shall be discharged. Except in the circumstances set forth below, the Liquidation Trust shall terminate no later than five (5) years after the Effective Date in accordance with IRS revenue procedures.

The Bankruptcy Court may extend the term of the Liquidation Trust one or more times

(not to exceed a total of four extensions, unless the Liquidation Trustee receives a favorable ruling from the IRS that any further extension would not adversely affect the status of the Liquidation Trust as a grantor trust for federal income tax purposes) for a finite period, not to exceed six (6) months per extension, upon a showing of good cause and based on the particular circumstance at issue. Each such extension must be approved by the Bankruptcy Court not less than thirty (30) days prior to the lapse of the term, or extended term, with notice thereof to all of the unpaid Liquidation Trust Beneficiaries. Failure to timely File a request for extension with the Bankruptcy Court shall result in dissolution, rather than automatic termination, and the Liquidation Trustee shall have such “wind-up” powers, both express and implied, as are necessary to, inter alia, (i) continue prosecuting any Causes of Action belonging to the Liquidation Trust; (ii) continue Claim administration responsibilities set forth in Article VII.A.2 of the Plan; and (iii) distribute the Cash proceeds of the Liquidation Trust Assets in a manner consistent with the Liquidation Trust Agreement. In no event shall the Liquidation Trust Beneficiaries be entitled to receive in-kind distributions from the Liquidation Trust. N. Corporate Action of the Debtors

On the Effective Date, all actions contemplated under the Plan shall be deemed authorized and approved in all respects, including (i) the execution of the Liquidation Trust Agreement and transfer of the Liquidation Trust Assets to the Liquidation Trust; (ii) the rejection, assumption, or assumption and assignment, as applicable, of Executory Contracts and Unexpired Leases; and (iii) all other acts or actions contemplated or reasonably necessary or appropriate to promptly consummate the Plan (whether to occur before, on, or after the Effective Date).

All matters provided for in the Plan involving the corporate structure of the Debtors or

the Reorganized Debtors, and any corporate action required by the Debtors or the Reorganized Debtors, as applicable, in connection with the Plan shall be deemed to have occurred and shall be in effect, without any requirement of further action by security holders, directors, or officers of the Debtors or the Reorganized Debtors, as applicable. On or prior to the Effective Date, the


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Directors and Officers of the Debtors shall be authorized and (as applicable) directed to issue, execute, and deliver the agreements, documents, securities, and instruments contemplated under the Plan (or necessary or desirable to effect the transactions contemplated under the Plan) in the name of and on behalf of the Reorganized Debtors. The authorizations and approvals contemplated by Article IV of the Plan shall be effective notwithstanding any requirements under non-bankruptcy law.

O. Effectuating Documents; Further Transactions

Except as otherwise provided for in the Plan, on and after the Effective Date, the Reorganized Debtors, and the Directors and Officers, 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 to effectuate, implement, and further evidence the terms and conditions of the Plan in the name of, and on behalf of, the Reorganized Debtors, without the need for any approvals, authorization, or consents, except for those expressly required pursuant to the Plan.

P. Retained Causes of Action

Except as otherwise provided in the Plan, Plan Documents, Liquidation Trust Agreement, or in any other contract, instrument, release, or other agreement entered into in connection with the Plan, in accordance with Bankruptcy Code section 1123(b)(3), the Reorganized Debtors shall retain and shall have the exclusive right, authority, and discretion to (without further order of the Bankruptcy Court) determine and to initiate, File, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any and all Retained Causes of Action that the Debtors or their Estates may hold against any Entity, whether arising before or after the Petition Date. The Debtors reserve and shall retain the foregoing Retained Causes of Action notwithstanding the rejection of any Executory Contract or Unexpired Lease during the Bankruptcy Cases. For the avoidance of doubt, the foregoing authority to initiate, File, prosecute and litigate expressly excludes those certain claims, Causes of Action and Committee Litigation belonging exclusively to the Liquidation Trust for the benefit of the Liquidation Trust Beneficiaries.

ARTICLE V.

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

A. Assumption and Rejection of Executory Contracts and Unexpired Leases

On the Effective Date, except as otherwise provided in the Plan or Plan Documents, all Executory Contracts or Unexpired Leases that currently exist between the Debtors and another Person or Entity, and are not listed on the Schedule of Rejected Contracts, shall be deemed assumed by the applicable Debtor with a cure amount of zero dollars ($0.00) unless they (i) were previously assumed or rejected by that Debtor; or (ii) are subject to a motion to reject Executory Contracts or Unexpired Leases that is pending on the Confirmation Date.

Entry of the Confirmation Order by the Bankruptcy Court shall constitute an order approving the assumptions or rejections of the Executory Contracts and Unexpired Leases set forth in the Schedule of Rejected Contracts and Leases pursuant to sections 365(a) and 1123 of


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the Bankruptcy Code. Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by the Bankruptcy Court on or after the Effective Date by a Final Order. Each Executory Contract and Unexpired Lease assumed pursuant to Article V of the Plan or by any order of the Bankruptcy Court, which has not been assigned to a third party prior to the Confirmation Date, shall re-vest in and be fully enforceable by the applicable Reorganized Debtor in accordance with its terms, except as such terms are modified by the provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption under applicable federal law. Notwithstanding anything to the contrary in the Plan, the Debtors or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Schedules identified in the Plan at any time prior to the Effective Date.

B. Indemnification Obligations

All indemnification provisions, consistent with applicable law, currently in place (whether in the by-laws, certificates of incorporation or formation, limited liability company agreements, limited partnership agreements, other organizational documents, board resolutions, indemnification agreements, employment contracts, or otherwise) for the Current Directors and Officers, managers, employees, attorneys, accountants, investment bankers, and other Professionals of the Debtors, as applicable, shall be reinstated and remain intact, irrevocable, and shall survive the Effective Date on terms no less favorable to such Current Directors and Officers, managers, employees, attorneys, accountants, investment bankers, and other Professionals of the Debtors than the indemnification provisions in place prior to the Effective Date; provided, however, that all indemnification obligations arising prior to the Effective Date under the foregoing indemnification provisions shall not constitute obligations of the Reorganized Debtors. For the avoidance of all doubt, all indemnification obligations of the Debtors prior to the Effective Date, whether known or unknown, asserted or assertable, shall constitute General Unsecured Claims against the Debtors’ Estates and shall be subject to all terms, conditions and treatment of Class 7 Claims under the Plan.

C. Claims Based on Rejection of Executory Contracts or Unexpired Leases

Unless otherwise provided by a Final Order of the Bankruptcy Court, all Proofs of Claim, with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases, pursuant to the Plan or the Confirmation Order, if any, must be Filed with the Bankruptcy Court within thirty (30) days after the later of (i) the date of entry of any order of the Bankruptcy Court (including the Confirmation Order) approving such rejection; (ii) the effective date of such rejection; or (iii) the Effective Date of the Plan. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not Filed with the Bankruptcy Court within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors or the Reorganized Debtors, the Estates, or their property without the need for any objection by the Reorganized Debtors or further notice to, or action, order, or approval of the Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully satisfied, released, and discharged, notwithstanding anything in the Schedules or a Proof of Claim to the contrary. All Allowed Claims arising from the rejection of either Debtor’s Executory Contracts or Unexpired Leases


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shall be classified as General Unsecured Claims and shall be treated in accordance with Article III.C.7 hereof.

D. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed

Any monetary default under each Executory Contract and Unexpired Lease to be assumed pursuant to the Plan shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the Cure Claim amount in Cash, subject to the limitation described below, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.

Within thirty (30) days of the entry of the Effective Date, any counter-party to an

Executory Contract or Unexpired Lease being assumed by either Debtor asserting a Cure Claim in connection with the assumption of any Unexpired Lease or Executory Contract under Article V (except those counter-parties whose Unexpired Leases or Executory Contracts have been previously assumed by a Final Order of the Bankruptcy Court), must file such Cure Claim with the Bankruptcy Court asserting all alleged amounts accrued or alleged defaults through the Effective Date. Any party that fails to file a Cure Claim by this deadline shall be forever barred from asserting, collecting or seeking to collect any amounts or defaults relating thereto against the Reorganized Debtors. The Reorganized Debtors shall have sixty (60) days from the Effective Date to file an objection to any Cure Claim. Any disputed Cure Claims shall be resolved either consensually or by the Bankruptcy Court. Except as may otherwise be agreed to by the parties, by no later than ninety (90) days following the Effective Date, the Reorganized Debtors shall cure all undisputed Cure Claims. All disputed Cure Claims shall be cured either within one hundred thirty (30) days after the entry of a Final Order determining the amount, if any, of the applicable Debtor’s liability with respect thereto or as may otherwise be agreed to by the parties.

In the event of a dispute regarding (i) the ability of the Reorganized Debtors or any

assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, or (ii) any other matter pertaining to assumption, the cure payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order or orders resolving the dispute and approving the assumption. The Debtors shall provide for notices of proposed assumption and proposed cure amounts and for procedures for objecting thereto and resolution of disputes by the Bankruptcy Court.

Assumption of any Executory Contract or Unexpired Lease pursuant to the Plan or

otherwise 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 such assumption. Any Proofs of Claim Filed with respect to an Executory Contract or Unexpired Lease that has been assumed shall be deemed disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court.


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E. Preexisting Obligations to Debtors

Rejection of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise shall not constitute a termination of preexisting obligations owed to the applicable Debtors or the Reorganized Debtors under such Executory Contracts or Unexpired Leases. In particular, notwithstanding any non-bankruptcy law to the contrary, the Reorganized Debtors expressly reserve and do not waive any right to receive, or any continuing obligation of a counterparty to provide, warranties or continued maintenance obligations on goods previously purchased by the Debtors contracting from non-Debtor counterparties to rejected Executory Contracts or Unexpired Leases.

F. Modifications, Amendments, Supplements, Restatements, or Other Agreements

Unless otherwise provided in the Plan, each Executory Contract or Unexpired Lease that is assumed shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all Executory Contracts and Unexpired Leases related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously rejected or repudiated or is rejected or repudiated under this Plan.

G. Reservation of Rights

Neither the exclusion nor inclusion of any Executory Contract or Unexpired Lease on the Schedule of Rejected Contracts and Leases, nor anything contained in the Plan, shall constitute an admission by either Debtor that any such contract or lease is in fact an Executory Contract or Unexpired Lease or that the applicable Reorganized Debtor has any liability thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption or rejection, the Debtor or Reorganized Debtor, as applicable, shall have thirty (30) days following entry of a Final Order resolving such dispute to alter the treatment of such contract or lease under the Plan.

H. Nonoccurrence of Effective Date

In the event that the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction with respect to any request to extend the deadline for assuming or rejecting Executory Contracts and Unexpired Leases pursuant to section 365(d)(4) of the Bankruptcy Code.

I. Contracts and Leases Entered Into After the Petition Date

Contracts and leases entered into after the Petition Date, if any, including any Executory Contract and Unexpired Leases assumed by either Debtor during the Bankruptcy Cases, will be performed by such Debtor in the ordinary course of business. Accordingly, such contracts and leases (including any assumed Executory Contracts and Unexpired Leases) will survive and remain unaffected by entry of the Confirmation Order.


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ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS

A. Timing and Calculation of Distributions

As soon as reasonably practicable (as determined by the Debtors) after the Effective Date, in accordance with Articles II and III hereof, the Reorganized Debtors shall make distributions to Holders of Allowed Administrative Expense Claims (including Allowed Professional Compensation Claims), Allowed Priority Non-Tax Claims in Class 1, Allowed Other Secured Claims in Class 3, Allowed Johnson Creditor Claims in Class 4, Allowed Channelview Creditor Claims in Class 5, and Allowed Geismar VI Creditor Claims in Class 6.

Unless otherwise provided in the Plan, on the Effective Date or as soon as reasonably

practicable thereafter (or if a Claim is not an Allowed Claim or Allowed Interest on the Effective Date, on the date that such Claim or Interest becomes an Allowed Claim or Allowed Interest), each Holder of an Allowed Claim shall receive the full amount of the distributions that the Plan provides for Allowed Claims or Allowed Interests (as applicable) in the applicable Class. In the event that any payment or act under the Plan is required to made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date. If and to the extent that there are Disputed Claims, distributions on account of any such Disputed Claims shall be made pursuant to the provisions set forth in Article VI.E of the Plan. Except as otherwise provided in the Plan, Holders of Claims or Interests shall not be entitled to interest, dividends, or accruals on the distributions provided for in the Plan, regardless of whether such distributions are delivered on or at any time after the Effective Date.

B. Rights and Powers of the Reorganized Debtors to Make Distributions

Subject to Article IV of the Plan, all distributions under the Plan, except those from the Liquidation Trust, shall be made by the Reorganized Debtors. The Reorganized Debtors shall not be required to give any bond or surety or other security for the performance of their duties unless otherwise ordered by the Bankruptcy Court.

The Reorganized Debtors shall be empowered to: (i) effect all actions and execute all agreements, instruments, and other documents necessary to perform their duties under the Plan; (ii) make all distributions contemplated hereby; and (iii) exercise such powers as may be vested in the Reorganized Debtors by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by the Reorganized Debtors to be necessary and proper to implement the provisions hereof.

C. Delivery of Distributions; Undeliverable or Unclaimed Distributions

1. Record Date for Distribution. As of the close of business on the Distribution Record Date, the various transfer registers for each of the Classes of Claims or Interests as maintained by the Debtors or their respective agents shall be closed, and the Debtors or their respective agents shall not be required to make any further changes in the record holders of any of the Claims or Interests. The Debtors or the Liquidation Trustee (as applicable) shall have no obligation to recognize any transfer of the Claims or Interests occurring on or after the Distribution Record Date. The Debtors or the Liquidation Trustee shall be entitled to recognize


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and deal for all purposes hereunder only with those record holders stated on the transfer ledgers as of the close of business on the Distribution Record Date, to the extent applicable.

2. Delivery of Distributions in General. Except as otherwise provided herein, the Debtors or the Liquidation Trustee (as applicable) shall make distributions to Holders of Allowed Claims and Allowed Interests as of the Distribution Record Date at the address for each such Holder as indicated in the Debtors’ records as of the date of any such distribution; provided, however, that the manner of such distributions shall be determined at the discretion of the Reorganized Debtors or Liquidation Trustee; provided further, however, that the address for each Holder of an Allowed Claim shall be deemed to be the address set forth in any Proof of Claim Filed by that Holder.

3. Minimum Distributions. To the extent Cash is distributed under the Plan, no Cash payment of less than $50.00 shall be made to a Holder of an Allowed Claim on account of such Allowed Claim, and such amounts shall be retained by the Reorganized Debtors or KP Engineering Liquidation Trust, depending on the Class of the Holder’s Claim.

4. Undeliverable Distributions and Unclaimed Property. In the event that any distribution to any Holder of Allowed Claims or Allowed Interests is returned as undeliverable, no distribution to such Holder shall be made unless and until the Debtors or Liquidation Trustee (as applicable) have determined the then-current address of such Holder, at which time such distribution shall be made to such Holder without interest; provided, however, that such distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one (1) year from the Effective Date. After such date, all unclaimed property or interests in property shall revert to the Reorganized Debtors or KP Engineering Liquidation Trust (as applicable) automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal, provincial or state escheat, abandoned, or unclaimed property laws to the contrary), and the Claim of any Holder of Claims and Interests to such property or Interest in property shall be discharged and forever barred. D. Manner of Payment

Any distribution under the Plan to Holders of Allowed Claims, whether from the

Reorganized Debtors or the Liquidation Trustee, shall be made in Cash. At the option of the Reorganized Debtors or Liquidation Trustee, as applicable, any Cash payment to be made hereunder may be made by check or wire transfer or as otherwise required or provided in applicable Plan Documents, Liquidation Trust Agreement, or ancillary agreements.

E. Distributions to Holders of Disputed Claims

Except as otherwise provided in the Plan or Liquidation Trust Agreement, distributions on account of Disputed Claims shall be withheld by the Debtors or Liquidation Trustee until such Claims have been either Allowed or Disallowed. To the extent a Disputed Claim becomes Allowed, the distribution reserved for such Claim shall be distributed to the Holder thereof as soon as practicable in accordance with the Plan. To the extent a Disputed Claim becomes Disallowed, the distribution reserved for such Claim shall revert to the Reorganized Debtors or


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KP Engineering Liquidation Trust (as applicable) automatically and without need for a further order by the Bankruptcy Court.

F. Compliance with Tax Requirements

In connection with the Plan, to the extent applicable, the Reorganized Debtors and Liquidation Trustee shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions made pursuant to the Plan shall be subject to such withholding and reporting requirements. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and Liquidation Trustee shall be authorized to take all actions necessary to comply with such withholding and reporting requirements, including liquidating a portion of the distribution to be made under the Plan to generate sufficient funds to pay applicable withholding taxes, withholding distributions pending receipt of information necessary to facilitate such distributions, or establishing any other mechanisms they believe are reasonable and appropriate. To the extent the Reorganized Debtors or Liquidation Trustee make distributions to Holders of Allowed Claims or Interests, the Reorganized Debtors and Liquidation Trustee reserve their right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances.

G. Allocations

Distributions with respect to Allowed Claims shall be allocated first to the principal amount of such Claims (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claims, to any portion of such Claims for accrued but unpaid interest.

H. No Post-Petition Interest on Claims

Unless otherwise specifically provided for in the Plan or the Confirmation Order, or required by applicable bankruptcy and non-bankruptcy law, post-petition interest shall not accrue or be paid on any prepetition Claims against the Debtors, and no Holder of a prepetition Claim against either Debtor shall be entitled to interest accruing on or after the Petition Date on any such prepetition Claim.

I. Foreign Currency Exchange Rate

Except as otherwise provided in a Bankruptcy Court order, as of the Effective Date, any Claim asserted in currency other than U.S. dollars shall be automatically deemed converted to the equivalent U.S. dollar value using the exchange rate for the applicable currency as published in The Wall Street Journal, National Edition, on the Petition Date.

J. Setoffs and Recoupment

Except as expressly provided in the Plan, including, for the avoidance of doubt, with respect to TCB or DIP Lender, the Reorganized Debtors may, pursuant to section 553 of the Bankruptcy Code, set off and/or recoup against any Plan distributions to be made on account of any Allowed Claim, any and all claims, rights, and Causes of Action that the Reorganized


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Debtors may hold against the Holder of such Allowed Claim to the extent such setoff or recoupment is either (i) agreed in amount by the Reorganized Debtors and Holder of such Allowed Claim or (ii) otherwise adjudicated by the Bankruptcy Court or another court of competent jurisdiction; provided, however, that neither the failure to effectuate a setoff or recoupment nor the allowance of any Claim hereunder shall constitute a waiver or release by either Reorganized Debtor or their successors of any and all claims, rights, and Causes of Action that such Reorganized Debtor or its successor may possess against the applicable Holder. In no event shall any Holder of Claims against, or Interests in, the Debtors be entitled to recoup any such Claim or Interest against any claim, right, or Cause of Action of the Debtors or the Reorganized Debtors, as applicable, unless such Holder has actually performed such recoupment and provided notice thereof in writing to the Debtors in accordance with Article XII.F of the Plan on or before the Effective Date, notwithstanding any indication in any Proof of Claim or otherwise that such Holder asserts, has, or intends to preserve any right of recoupment.

K. Claims Paid or Payable by Third Parties

1. Claims Paid by Third Parties. The Debtors, the Reorganized Debtors or the Liquidation Trustee, as applicable, shall reduce in full a Claim, and such Claim shall be disallowed without a Claim objection having to be Filed and without any further notice to or action, order, or approval of the Bankruptcy Court, to the extent that the Holder of such Claim receives payment in full on account of such Claim from a party that is not the Debtors, Reorganized Debtors or Liquidation Trustee. Subject to the last sentence of this paragraph, to the extent a Holder of a Claim receives a distribution under the Plan on account of such Claim and receives payment from a third party that is not the Debtors, Reorganized Debtors or Liquidation Trustee on account of such Claim, such Holder shall, within fourteen (14) days of receipt thereof, repay or return the distribution received from the Reorganized Debtors or KP Engineering Liquidation Trustee, as applicable, to the extent the Holder’s total recovery on exceeds the amount of such Holder was entitled to receive under the Plan on account of the Claim. The failure of such Holder to timely repay or return such distribution shall result in the Holder owing the applicable Reorganized Debtor or KP Engineering Liquidation Trust annualized interest at the Federal Judgment Rate on such amount owed for each Business Day after the 14-day grace period specified above until the amount is repaid.

2. Claims Payable by Third Parties. 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 the underlying claim forming the basis of the Claim against either Debtor is adjudicated by a court of competent jurisdiction), then immediately upon such insurers’ agreement to satisfy all or part of the Claim, the applicable portion of such Claim against either Debtor shall be deemed expunged without a Claims objection having to be Filed and without any further notice to or action, order, or approval of the Bankruptcy Court.

3. Applicability of Insurance Policies. Except as otherwise provided in the Plan,

distributions to Holders of Allowed Claims shall be in accordance with the provisions of any applicable insurance policy. Nothing contained in the Plan shall constitute or be deemed a waiver of any Cause of Action that a Debtor or any Entity may hold against any other Entity,


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including insurers under any policies of insurance, nor shall anything contained herein constitute or be deemed a waiver by such insurers of any defenses, including coverage defenses, held by such insurers.

ARTICLE VII. PROCEDURES FOR RESOLVING

CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS

A. Claims Administration Responsibilities

1. Rights of the Reorganized Debtors. Except as otherwise specifically provided in the Plan or KP Engineering Liquidation Trust Agreement, after the Effective Date, the Reorganized Debtors, with respect to all Claims and Interests in Classes 1, 3, and 8, shall have the authority to: (i) File, withdraw, or litigate to judgment, objections to Claims or Interests; (ii) settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court; and (iii) administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court. After the Effective Date, the Reorganized Debtors shall have and retain any and all rights and defenses the Debtors had with respect to any Interests or Claims, other than General Unsecured Claims in Class 7, immediately prior to the Effective Date.

2. Rights of the Liquidation Trustee. Except as otherwise specifically provided in

the Plan or Liquidation Trust Agreement, after the Effective Date, the Liquidation Trustee, with respect to all Claims in Classes 4, 5, 6, and 7, shall have authority to: (i) File, withdraw, or litigate to judgment, objections to Claims; (ii) settle or compromise any Disputed Claim without any further notice to or action, order, or approval by the Bankruptcy Court; and (iii) administer and adjust the Claims Register to reflect any such settlements or compromises without any further notice to or action, order, or approval by the Bankruptcy Court. After the Effective Date, the Liquidation Trustee shall have and retain any and all rights and defenses the Debtors had with respect to any Class 7 Claim immediately prior to the Effective Date.

B. Estimation of Claims and Interests

Before or after the Effective Date, the Debtors or Liquidation Trustee (as applicable) may at any time request that the Bankruptcy Court estimate any Disputed Claim or Disputed Interest that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously objected to such Claim or Interest or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim or Interest, including during the litigation of any objection to any Claim or Interest and any appeal relating to such objection. Notwithstanding any provision to the contrary in the Plan or Liquidation Trust Agreement, a Claim or Interest that has been expunged from the Claims Register, but that either is subject to appeal or has not been the subject of a Final Order, shall be deemed to be estimated at zero dollars ($0.00) unless otherwise ordered by the Bankruptcy Court. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim or Interest, that estimated amount shall constitute a maximum limitation on such Claim or Interest for all purposes under the Plan (including for purposes of distributions), and the Reorganized Debtors or Liquidation Trustee may elect to pursue any supplemental proceedings to object to any ultimate distribution on such Claim or Interest.


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C. Adjustment to Claims or Interests Without Objection

Any Claim or Interest that has been paid or satisfied, or any Claim or Interest that has been amended or superseded, may be adjusted or expunged on the Claims Register by the Reorganized Debtors or Liquidation Trustee, as applicable, without any further notice to or action, order, or approval of the Bankruptcy Court.

D. Time to File Objections to Claims

Except as otherwise specifically provided in the Plan, any objections to Claims shall be Filed on or before the later of: (i) one hundred twenty (120) days after the Effective Date, or (ii) such other period of limitation as may be specifically fixed by a Final Order of the Bankruptcy Court for objecting to such Claims.

E. Disallowance of Claims or Interests

Except as otherwise specifically provided in the Plan, including, for the avoidance of doubt, with respect to those certain Causes of Action and Committee Litigation belonging to the KP Engineering Liquidation Trust, any Claims or Interests held by Entities from which property is recoverable under section 542, 543, 550, or 553 of the Bankruptcy Code, or that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code, shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code, and Holders of such Claims or Interests may not receive any distributions on account of such Claims until such time as any objection to those Claims or Interests have been settled or a Bankruptcy Court order with respect thereto has been entered.

Except as provided herein or otherwise agreed, any and all Proofs of Claim Filed after the Bar Date shall be deemed disallowed and expunged as of the Effective Date without any further notice to or action, order, or approval of the Bankruptcy Court, and Holders of such Claims may not receive any distributions on account of such Claims, unless on or before the Confirmation Hearing such late Claim has been deemed timely Filed by a Final Order.

F. Amendments to Claims or Interests

On or after the Effective Date, a Claim or Interest may not be Filed or amended without the express prior authorization of the Bankruptcy Court or the Reorganized Debtors and any such new or amended Claim or Interest that is Filed shall be deemed disallowed in full and expunged without any further action.

G. No Distributions Pending Allowance

If any objection to a Claim or Interest or portion thereof is Filed as set forth in Article VII.D hereof, no payment or distribution provided under the Plan shall be made on account of such Claim or Interest or portion thereof unless and until such Disputed Claim or Interest becomes an Allowed Claim or Interest.


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H. Distributions After Allowance

To the extent that a Disputed Claim ultimately becomes an Allowed Claim or Allowed Interest, distributions (if any) shall be made to the Holder of such Allowed Claim or Allowed Interest (as applicable) in accordance with the provisions of the Plan. As soon as practicable after the date that the order or judgment of the Bankruptcy Court allowing any Disputed Claim or Disputed Interest becomes a Final Order, the Debtors (or the Liquidation Trustee as the case may be) shall provide to the Holder of such Claim or Interest the distribution (if any) to which such Holder is entitled under the Plan as of the Effective Date, without any interest, dividends, or accruals to be paid on account of such Claim or Interest unless required under applicable bankruptcy law.

ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS

A. Release and Discharge of Debtors

Pursuant to Bankruptcy Code section 1141(d), and except as otherwise specifically provided in the Plan, KP Engineering Liquidation Trust Agreement, or in any contract, instrument, or other agreement or document created pursuant to the Plan, the distributions, rights, and treatment that are provided for in the Plan shall be in complete satisfaction, discharge, and release, effective as of the Effective Date, of Claims, Interests, and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Interests from and after the Petition Date, whether known or unknown, against, liabilities of, liens on, obligations of, rights against, and Interests in, the Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims and Interests, including demands, liabilities, and Causes of Action that arose before the Effective Date, any liability (including withdrawal liability) to the extent such Claims or Interests related to services performed by employees of the Debtors prior to the Effective Date and that arise from a termination of warranties issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, in each case whether or not: (1) a Proof of Claim based upon such debt or right is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code; or (2) a Claim or Interest based upon such debt, right, or Interest is Allowed pursuant to section 502 of the Bankruptcy Code. The Confirmation Order shall be a judicial determination of the discharge of all Claims and Interests subject to the occurrence of the Effective Date.

B. Release of Liens

Except as otherwise provided in the Plan, or any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to the Plan and, in the case of a Secured Claim, satisfaction in full of the portion of the Secured Claim that is Allowed as of the Effective Date, except for Secured Claims that the Debtors elect to Reinstate, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estate shall be fully released and discharged, and all of the right, title, and interest of any Holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Reorganized Debtor and its successors and assigns. On and after the Effective Date, any Holder of such Secured Claim (and


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the applicable agents for such Holder), at the expense of the Reorganized Debtors, shall be authorized and directed to release any collateral or other property of either Debtor (including any Cash collateral and possessory collateral) held by such Holder (and the applicable agents for such Holder), and to take such actions as may be reasonably requested by the Reorganized Debtors to evidence the release of such Lien, including the execution, delivery, and filing or recording of such releases. The presentation or Filing of the Confirmation Order to or with any federal, state, provincial, or local agency or department shall constitute good and sufficient evidence of, but shall not be required to effect, the termination of such Liens.

C. Releases by the Debtors

Pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, each Released Party is deemed released and discharged by the Debtors, the Reorganized Debtors, and the Estates, in each case on behalf of themselves and their respective successors, assigns, and representatives, and any and all other Entities who may purport to assert any Cause of Action, directly or derivatively, by, through, for, or because of the foregoing Entities, from any and all Causes of Action, including any derivative claims, asserted on behalf of the Debtors, that the Debtors, the Reorganized Debtors, or the Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the Holder of any Claim against, or Interest in, the Debtors or other Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtors’ in- or out-of-court restructuring efforts, the Bankruptcy Cases, the Plan, the KP Engineering Liquidation Trust, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Plan, the Liquidation Trust Agreement, the Filing of the Bankruptcy Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, or the distribution of property under the Plan, Liquidation Trust Agreement, or any other related agreement, or upon any other act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date. Notwithstanding anything contained herein to the contrary, the foregoing release does not release any obligations of any party under the Plan or any document, instrument, or agreement executed to implement the Plan.

For the avoidance of doubt, (i) the release in this Section, and the term Released Party, specifically excludes those Persons or Entities identified in the chart set forth in Article IV.H.; and (ii) except with respect to the release of TCB set forth in Article III.C.2, the release in this Section shall not apply to release or discharge any Person or Entity from any liability whatsoever to the Debtors in connection with the Committee Litigation, or any other Causes of Action identified as KP Engineering Liquidation Trust Assets.

D. Releases by Holders of Claims and Interests

As of the Effective Date, each Releasing Party is deemed to have released and discharged the Debtors, Reorganized Debtors, and Released Parties from any and all Causes of Action, whether known or unknown, including derivative claims, asserted on behalf of the Debtors, that such Entity would have been legally entitled to assert (whether individually or collectively), based on or relating to, or in any manner arising from, in whole or in part, the Debtors’ in- or out-of-court restructuring efforts, the Bankruptcy Cases, the formulation, preparation dissemination, negotiation, or Filing of the Plan, the KP Engineering Liquidation Trust Agreement, or the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the


40

Plan, or the distribution of property under the Plan or any other related agreement, or upon any other related act or omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date. Notwithstanding anything contained herein to the contrary, the foregoing release does not release any obligations of any party under the Plan or any document, instrument, or agreement executed to implement the Plan.

For the avoidance of doubt, the term Releasing Party specifically excludes the Committee and Holders of Class 7 Claims. For the further avoidance of doubt, (i) the release in this Section specifically excludes the release of those certain claims identified in the chart set forth in Article IV.H.; and (ii) except with respect to the release of TCB set forth in Article III.C.2, the release in this Section shall not apply to release or discharge any Person or Entity from any liability whatsoever to the Debtors in connection with the Committee Litigation, or any other Causes of Action identified as KP Engineering Liquidation Trust Assets.

E. Exculpation

The Exculpated Parties shall not have or incur any liability to any Holder of a Claim or Interest, for any act, event, or omission from the Petition Date to the Effective Date in connection with or arising out of the Bankruptcy Cases, the Confirmation of the Plan, the Consummation of the Plan, the administration of the Plan, the creation or transfer of Estate property to the KP Engineering Liquidation Trust, or the assets and property to be distributed pursuant to the Plan or Liquidation Trust (including unclaimed property under the Plan), unless such Entity’s action is determined as: (i) bad faith; (ii) actual fraud; (iii) willful misconduct; or (iv) gross negligence, in each case by a Final Order of a court of competent jurisdiction. Each Entity may reasonably rely upon the opinions of counsel, certified public accountants, and other experts or professionals employed by the Debtors.

F. Injunction

Except as otherwise expressly provided in the Plan or for obligations issued or required to be paid pursuant to the Plan or the Confirmation Order, all Entities who have held, hold, or may hold Claims or Interests that have been satisfied, released, discharged, or are subject to exculpation are permanently enjoined, from and after the Effective Date, from taking any of the following actions against, as applicable, the Debtors, the Reorganized Debtors, the Liquidation Trustee, the Exculpated Parties, or the Released Parties: (1) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests; (2) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or in connection with or with respect to any such Claims or Interests; (3) creating, perfecting, or enforcing any encumbrance of any kind against such Entities or the property or the estates of such Entities on account of or in connection with or with respect to any such Claims or Interests; (4) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property of such Entities on account of, in connection with, or with respect to any such Claims or Interests unless such Holder has Filed a motion requesting the right to perform such setoff on or before the Effective Date, and notwithstanding an indication of a Claim or Interest or otherwise that such Holder asserts, has, or intends to preserve any right of setoff pursuant to applicable law or otherwise; and (5) commencing or continuing in any manner


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any action or other proceeding of any kind on account of, in connection with, or with respect to any such Claims or Interests released or settled pursuant to the Plan.

Upon Confirmation of the Plan, all Holders of Claims and Interests and their respective current and former employees, agents, officers, directors, principals, and direct and indirect Affiliates shall be enjoined from taking any actions to interfere with the implementation or Consummation of the Plan. Each Holder of any Allowed Claim or Allowed Interest, as applicable, by accepting, or being eligible to accept, distributions under or Reinstatement of such Claim or Interest, as applicable, pursuant to the Plan, shall be deemed to have consented to the injunction provisions set forth in the Plan.

G. Protections Against Discriminatory Treatment

Consistent with section 525 of the Bankruptcy Code and the Supremacy Clause of the U.S. Constitution, all Entities, including Governmental Units, shall not discriminate against the Reorganized Debtors or deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, the Reorganized Debtors, or another Entity with whom the Reorganized Debtors have been associated, solely because the Reorganized Debtors have been debtors under chapter 11 of the Bankruptcy Code, have been insolvent before the commencement of the Bankruptcy Cases (or during the Bankruptcy Cases but before the Debtors are granted or denied a discharge), or have not paid a debt that is dischargeable in the Bankruptcy Cases.

H. Reimbursement or Contribution

If the Bankruptcy Court disallows a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy Code, then to the extent that such Claim is contingent as of the time of allowance or disallowance, such Claim shall be forever disallowed and expunged notwithstanding section 502(j) of the Bankruptcy Code, unless prior to the Confirmation Date: (i) such Claim has been adjudicated as non-contingent; or (ii) the relevant Holder of a Claim has Filed a non-contingent Proof of Claim on account of such Claim and a Final Order has been entered prior to the Confirmation Date determining such Claim is no longer contingent.

ARTICLE IX. CONDITIONS PRECEDENT TO

CONFIRMATION AND CONSUMMATION

A. Conditions Precedent to Confirmation

The following are conditions precedent to Confirmation of the Plan that shall be satisfied or waived in writing in accordance with Article IX.C. of the Plan:

1. The Plan and Confirmation Order shall be in form and substance acceptable to the Debtors.

B. Conditions Precedent to Effectiveness

1. The Bankruptcy Court shall have entered the Confirmation Order in a form and


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substance acceptable to the Debtors and shall not (a) have been reversed or vacated, (b) be subject to a then-effective stay, or (c) have been modified or amended;

2. The Plan, including any amendments, modifications, or supplements thereto, and inclusive of any amendments, modifications, or supplements made after the Confirmation Date but before the Effective Date, shall be in form and substance acceptable to the Debtors; and

3. The KP Engineering Liquidation Trust Agreement shall be in form and substance acceptable to the Debtors; and

4. The Exit Financing Documents shall have been executed as of the Effective Date.

C. Waiver of Conditions

The conditions to Confirmation and the Effective Date set forth in this Article may be waived only with the prior written consent of the Debtors without notice, leave, or order of the Bankruptcy Court or any formal action other than proceedings to confirm or consummate the Plan.

D. Effect of Failure of Conditions

If Consummation does not occur, then the Plan and Liquidation Trust Agreement shall be null and void in all respects and nothing contained in the Plan shall: (i) constitute a waiver or release of Claims, Interests, or Causes of Action by the Debtors; (ii) prejudice in any manner the rights of the Debtors, any Holders of Claims or Interests, or any other Person or Entity; or (iii) constitute an admission, acknowledgement, offer, or undertaking by the Debtors, any Holders of Claims or Interests, or any other Person or Entity.

ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN

A. Modifications and Amendments

Except as otherwise specifically provided in the Plan, the Debtors reserve the right to

modify the Plan, whether such modification is material or immaterial, and seek Confirmation consistent with the Bankruptcy Code. Subject to those restrictions on modifications set forth in the Plan and the requirements of section 1127 of the Bankruptcy Code, Bankruptcy Rule 3019, and, to the extent applicable, sections 1122, 1123 and 1125 of the Bankruptcy Code, the Debtors expressly reserve their rights to revoke or withdraw, or, to alter, amend, or modify the Plan, one or more times, after Confirmation, and, to the extent necessary may initiate proceedings in the Bankruptcy Court to so alter, amend, or modify the Plan, or remedy any defect or omission, or reconcile any inconsistencies in the Plan, or the Confirmation Order, in such matters as may be necessary to carry out the purposes and intent of the Plan.


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B. Effect of Confirmation on Modifications

Entry of a Confirmation Order shall mean that all modifications or amendments to the Plan made pursuant Section A., above, are approved pursuant to Bankruptcy Code section 1127(a) and do not require additional disclosure under Bankruptcy Rule 3019.

C. Revocation or Withdrawal of Plan

The Debtors reserve their rights to revoke or withdraw the Plan prior to the Confirmation Date and to File subsequent plans of reorganization. If the Debtors revoke or withdraw the Plan, then: (i) the Plan shall be null and void in all respects; (ii) any settlement or compromise embodied in the Plan (including the fixing or limiting to an amount certain of any Claim or Interests or Class of Claims or Interests), assumption or rejection of Executory Contracts and Unexpired Leases effected under the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (iii) nothing contained in the Plan shall (a) constitute a waiver or release of any Claims or Interests; (b) prejudice in any manner the rights of the Debtors or any other Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors or any other Person or Entity.

ARTICLE XI. RETENTION OF JURISDICTION

Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective

Date, on and after the Effective Date, the Bankruptcy Court shall retain exclusive jurisdiction over all matters arising out of, or relating to, the Bankruptcy Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:

1. Allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including the resolution of any requests for payment of any Administrative Claim and the resolution of any objections to the secured or unsecured status, priority, amount, or allowance of Claims or Interests;

2. Decide and resolve all matters related to the granting and denying, in whole or in

part, any applications for allowance of compensation or reimbursement of expenses to Professionals authorized pursuant to the Bankruptcy Code or the Plan;

3. Resolve any matters related to: (a) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which either Debtor is a party or with respect to which either Debtor may be liable and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Cure Claims pursuant to section 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed; (c) the Reorganized Debtors amending, modifying, or supplementing, after the Effective Date, pursuant to Article V hereof, the Schedules of Executory Contracts and Unexpired Leases to be assumed or rejected or otherwise; and (d) any dispute regarding whether a contract or lease is or was executory or expired;


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4. Ensure that distributions to Holders of Allowed Claims and Allowed Interests (as applicable) are accomplished pursuant to the provisions of the Plan and Liquidation Trust Agreement;

5. Adjudicate, decide, or resolve any motions, adversary proceedings, any other

contested or litigated matters, and grant or deny any applications involving the Debtors that may be pending on the Effective Date;

6. Adjudicate, decide, or resolve all matters related to section 1141 of the

Bankruptcy Code; 7. Enter and implement such orders as may be necessary to execute, implement, or

consummate the provisions of the Plan, the Liquidation Trust Agreement, and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan;

8. Enter and enforce any order for the sale of property pursuant to sections 363,

1123, or 1146(a) of the Bankruptcy Code; 9. Resolve any cases, controversies, suits, disputes, or Causes of Action that may

arise in connection with the Consummation, interpretation, or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;

10. Issue injunctions, enter and implement other orders, or take such other actions as

may be necessary to restrain interference by any Person or Entity with respect to Consummation or enforcement of the Plan;

11. Resolve any cases, controversies, suits, disputes or Causes of Action with respect

to the releases, injunctions, and other provisions contained in Article VIII hereof and enter such orders as may be necessary to implement such releases, injunctions and other provisions;

12. Resolve any cases, controversies, suits, disputes, or Causes of Action with respect

to the repayment or return of distributions and the recovery of additional amounts owed by the Holder of a Claim or Interest for amounts not timely repaid pursuant to Article VI.K hereof;

13. Enter and implement such orders as are necessary if the Confirmation Order is for

any reason modified, stayed, reversed, revoked, or vacated; 14. Determine any other matters that may arise in connection with or related to the

Plan, the Liquidation Trust Agreement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Plan;

15. Enter an order closing the Bankruptcy Cases; 16. Adjudicate any and all disputes arising from or relating to distributions under the

Plan;


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17. Consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any Court order, including the Confirmation Order;

18. Determine requests for the payment of Claims and Interests entitled to priority

pursuant to section 507 of the Bankruptcy Code; 19. Hear and determine disputes arising in connection with the interpretation,

implementation, or enforcement of the Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Plan;

20. Hear and determine matters concerning state, local, and federal taxes in

accordance with sections 363, 505, and 1146 of the Bankruptcy Code; 21. Hear and determine all disputes involving the existence, nature, scope, or

enforcement of any exculpations, discharges, injunctions and releases granted in the Plan, including under Article VIII hereof, regardless of whether such termination occurred prior to or after the Effective Date;

22. Enforce all orders previously entered by the Bankruptcy Court; and 23. Hear any other matter not inconsistent with the Bankruptcy Code.

ARTICLE XII.

MISCELLANEOUS PROVISIONS A. Immediate Binding Effect

Subject to Article IX hereof, and notwithstanding Bankruptcy Rules 3020(e), 6004(h),

7062, or otherwise, upon the occurrence of the Effective date, the terms of the Plan shall be immediately effective and enforceable and deemed binding upon: (1) the Estates; (2) the Reorganized Debtors; (3) all Holders of Claims or Interests (regardless of whether such Holders are deemed to have accepted the Plan); (4) all Entities that are parties to or are subject to the settlements, compromises, releases, discharges, and injunctions described in the Plan; (5) each Entity acquiring property under the Plan or Liquidation Trust Agreement; and (6) any and all non-Debtor parties to Executory Contracts and Unexpired Leases.

B. Additional Documents

On or before the Effective Date, the Debtors may file with the Bankruptcy Court such Plan Documents, including Exit Financing Documents, and other documents or agreements as may be necessary to effectuate and further evidence the terms and conditions of the Plan or KP Engineering Liquidation Trust Agreement. The Debtors or the Reorganized Debtors, as applicable, and all Holders of Claims or Interests receiving distributions pursuant to the Plan and Liquidation Trust Agreement 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.


46

C. Payment of Statutory Fees

All fees payable pursuant to section 1930(a) of the Judicial Code, as determined by the Bankruptcy Court at a hearing pursuant to section 1128 of the Bankruptcy Code, shall be paid by the Reorganized Debtors for each quarter (including any fraction thereof) until the Bankruptcy Cases are converted, dismissed, or closed—whichever occurs first.

D. Reservation of Rights

Except as expressly set forth in the Plan, the Plan shall have no force or effect unless the Bankruptcy Court shall enter the Confirmation Order, and the Confirmation Order shall have no force or effect if the Effective Date does not occur. None of the Filing of the Plan, any statement or provision contained in the Plan, or the taking of an action by the Debtors with respect to the Plan, or the Liquidation Trust Agreement shall be, or shall be deemed to be, an admission or waiver of any rights of the Debtors with respect to the Holders of Claims or Interests prior to the Effective Date.

E. Successors & Assigns

The rights, benefits, and obligations of any Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, Affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each Entity.

F. Notices

All notices, requests, and demands to or upon the Debtors to be effective shall be in writing (including any facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered, or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:

OKIN ADAMS LLP Christopher Adams

James W. Bartlett, Jr. Ryan A. O’Connor

1113 Vine St., Suite 240 Houston, Texas 77002

Tel: 713.228.4100 Fax: 888.865.2118

[email protected] [email protected] [email protected]

G. Term of Injunctions or Stays

Unless otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays in effect in the Bankruptcy Cases pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any






47

injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.

H. Entire Agreement

Except as otherwise indicated, the Plan (including, for the avoidance of doubt, the Plan Documents) supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which are deemed merged and integrated into the Plan.

I. Exhibits

All Exhibits and documents attached to the Plan are incorporated into and are a part of the Plan as if set forth in full in the Plan. After the Exhibits and documents are Filed, copies of such Exhibits and documents shall be available upon written request to the Debtors’ counsel at the address set forth herein or by downloading such Exhibits and documents from the Court’s CM/ECF filing system or the website maintained by the Debtors’ notice and claim agent, Omni Agent Solutions, at https://cases.omniagentsolutions.com. To the extent any Exhibit or document is inconsistent with the terms of the Plan, unless otherwise ordered by the Bankruptcy Court, the non-exhibit or non-document portion of the Plan shall control.

J. Nonseverability of Plan Provisions

If, prior to Confirmation, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. 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 Debtor’s consent; and (3) nonseverable and mutually dependent.

K. Plan Proposed in Good Faith

Upon entry of the Confirmation Order, the Debtors will be deemed to have proposed the Plan in good faith and in compliance with the Bankruptcy Code, and pursuant to section 1125(e) of the Bankruptcy Code, the Debtors and each of their Affiliates, agents, representatives, members, principals, shareholders, officers, directors, employees, advisors, and attorneys will be deemed to have participated in good faith and in compliance with the Bankruptcy Code, and, therefore, neither any of such individuals or Entities or the Reorganized Debtors will have any liability for the violation of any applicable law, rule, or regulation governing the proposal of the Plan or participation in the Bankruptcy Cases.



48

L. Closing the Bankruptcy Cases

The Reorganized Debtors shall, promptly after the administration of the Bankruptcy Cases, File with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court to close the Bankruptcy Cases.

M. Waiver or Estoppel

Each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any arguments, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, secured or not subordinated by virtue of an agreement made with the Debtors, Liquidation Trustee, or their counsel, or any other Entity, if such agreement was not disclosed in the Plan or papers Filed with the Bankruptcy Court prior to the Confirmation Date.

N. Controlling Document

In the event of an inconsistency between the Confirmation Order and the Plan, the Confirmation Order shall control.


49

Respectfully submitted on the 28th day of February, 2020.

KP ENGINEERING, LP By: /s/ Douglas J. Brickley Douglas J. Brickley Chief Restructuring Officer

KP ENGINEERING, LLC By: /s/ Douglas J. Brickley Douglas J. Brickley Chief Restructuring Officer OKIN ADAMS LLP







Recipient Address 1 Address 2 City St Zip Date Distribution Reason for Payment or Transfer

Ascension Parish Sales and Use Tax Authority P.O. Box 1718 Gonzales LA 70707 57,121.22$

7/22/2019 41,031.92$ Other: Louisiana Sales Tax

8/12/2019 16,089.30$ Other: Louisiana Sales Tax

Business Solutions Mgmt 5380 Old Bullard Road Suite 600-237 Tyler TX 75703 24,775.80$

6/7/2019 24,775.80$ Services

CalTech Software Systems 940 Arroyo St. San Angelo TX 76903 70,525.57$

6/18/2019 23,282.01$ Services

7/19/2019 23,734.36$ Services

8/21/2019 23,509.20$ Services

Construction Management Group 10065 County Road 321 Sweeny TX 77480 23,259.85$

6/7/2019 23,259.85$ Supplier or Vendor

Daigle Automation 19122 CR 178 Flint TX 75762 1,004,949.58$

6/3/2019 1,004,949.58$ Supplier or Vendor

David G. Peake, Trustee P. O. Box 2158 Memphis TN 38101-2158 13,292.34$

5/31/2019 2,215.39$ Other: Employee Payroll Garnishment






Dental Select P. O. Box 301680 Dallas TX 75303-1680 16,307.07$

7/12/2019 16,307.07$ Services

Direct Energy P. O. Box 660749 Dallas TX 75266 7,739.41$

6/24/2019 3,591.07$ Services

8/6/2019 4,148.34$ Services

Fabwell Corporation PO Box 9340 Tulsa OK 74157 12,000.00$


HSA Bank P.O. Box 939 Sheboygan WI 53082-0939 7,430.80$

6/18/2019 7,107.70$ Other: HSA Funding

7/2/2019 107.70$ Other: HSA Funding

7/16/2019 107.70$ Other: HSA Funding

8/13/2019 107.70$ Other: HSA Initial Funding

Hunton Andrews Kurth LLP 1445 Ross Avenue Ste. 3700 Dallas TX 75202 356,105.20$

8/14/2019 237,059.54$ Services

8/22/2019 119,045.66$ Services

IPFS Corporation P. O. Box 15089 Worcester MA 01615-0889 245,301.79$

6/12/2019 77,875.41$ Insurance Premium



Knight Janitorial Services 4200 Soujourn Dr Addison TX 75001 18,484.76$

8/2/2019 18,484.76$ Services

Kvaerner Field Development, Inc. 11757 Katy Freeway Suite 1200 Houston TX 77079 75,072.09$

6/21/2019 25,024.03$ Other: Houston Rent



Lesniewski & Parker Insurance 2210 Three Lakes Parkway Suite 155 Tyler TX 75703 29,224.07$

7/29/2019 29,224.07$ Services

Okin & Adams 1113 Vine St #240 Houston TX 77002 25,000.00$

8/20/2019 25,000.00$ Services

Omni Management Group 5955 Desoto Avenue Suite 100 Woodland Hills CA 91367 10,000.00$

8/12/2019 10,000.00$ Services

PriceWaterhouse Coopers P.O. Box 952282 Dallas TX 75395-2282 25,000.00$

7/26/2019 25,000.00$ Services

Risk Strategies Company P. O. Box 970069 Boston MA 02297 8,333.33$

7/12/2019 8,333.33$ Services

Salcido Lawn P O Box 9586 Tyler TX 75711 9,339.81$

7/16/2019 9,339.81$ Services

Steele Resources - past due Tulsa Rent 5555 Old Jacksonville Hwy Tyler TX 75703 21,865.54$

8/21/2019 21,865.54$ Other: Paydown of rent

Summit Electric Supply P O Box 848345 Dallas TX 75284-8345 9,298.62$

8/15/2019 9,298.62$ Services

Superheat FGH Services, Inc. 313 Garnet Dr. New Lenox IL 60451 50,000.00$


TASC P.O. Box 88278 Milwaukee WI 53288-0001 16,922.51$

6/4/2019 3,590.31$ Other: FSA Reimbursement





Texas Capital Bank 2350 Lakeside Blvd. Suite 800 Richardson TX 75082 13,173,047.50$

6/10/2019 29.99$ Other: Bank Service Charge








8/12/2019 1,025.30$ Other: Bank Service Charge

8/21/2019 13,169,773.12$ Secured Debt

The Claro Group 711 Louisiana St Suite 2100 Houston TX 77002 60,000.00$

8/20/2019 60,000.00$ Services

The Lincoln National Life Insurance Company P. O. Box 0821 Carol Stream IL 60132-0821 10,291.86$

7/12/2019 10,291.86$ Services

90 Day Payments/Transfers to Creditors

Case 19-34698 Document 468-6 Filed in TXSB on 04/06/20 Page 1 of 2

UMR P.O. Box 30541 Salt Lake City UT 84130 713,279.06$

5/24/2019 57,416.48$ Other: Heathcare Claims



6/14/2019 375.97$ Other: Heathcare Claims

6/21/2019 43,364.92$ Other: Health Insurance Premium & Fees


6/27/2019 237.16$ Other: Heathcare Claims











Total

Payments/Transfers 16,093,967.78$


Schedule of Retained Causes of Action1

Except as otherwise provided in the Plan, or in any contract, instrument, or other agreement or document entered into in connection with the Plan, in accordance with section 1123(b) of the Bankruptcy Code, the Reorganized Debtors shall retain and may enforce, sue on, settle, compromise, otherwise resolve, discontinue, abandon, or dismiss all claims, rights, Causes of Action, suits, and proceedings, including those described in this exhibit (collectively, the “Retained Causes of Action”), whether at law or in equity, whether known or unknown, that the Debtors or their Estates may hold against any entity, without the approval of the Bankruptcy Court, and any contract, instrument, release, indenture, or other agreement entered into in connection herewith.

For the avoidance of all doubt, the Retained Causes of Action specifically exclude the

Committee Litigation and all other Causes of Action constituting KP Engineering Liquidation Trust Assets identified in the Plan, including the following litigation and related Causes of Action: (1) Official Committee of Unsecured Creditors on Behalf of KP Engineering, LP and KP Engineering, LLC v. Brandon T. Steele, et. al., Case No. 20-03035 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division; (2) Official Committee of Unsecured Creditors on Behalf of KP Engineering, LP and KP Engineering, LLC v. Texas Capital Bank, National Association, Case No. 20-03030 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division; (3) all claims and Causes of Action identified in Article IV.H. of the Plan; (4) all claims and Causes of Action the Debtors Estates hold against Targa Resources Corp., Targa Pipeline Mid-Continent WestTex LLC, Targa Channelview LLC, or Targa Terminals LLC; and (5) all claims and Causes of Action the Debtors’ Estates hold against the Current Directors and Officers, as defined in the Plan.

No Person or Entity may rely on the absence of a specific reference in the Plan, the Disclosure Statement or any related Plan Documents to any Retained Causes of Action against it as any indication that the Reorganized Debtors will not, or may not, pursue any and all available Retained Causes of Action against it. The Reorganized Debtors expressly reserve all rights to prosecute any and all Retained Causes of Action against any Person or Entity. Unless any Retained Causes of Action against a Person or Entity is expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan or a Bankruptcy Court order, the Reorganized Debtors expressly reserve all Retained Causes of Action for later adjudication, 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 such Retained Causes of Action upon, after, or as consequence of, Confirmation or Consummation of the Debtors’ Plan. For the avoidance of doubt, all claims, Causes of Action, suits, and proceedings of the Debtors that are not Retained Causes of Action or KP Engineering Liquidation Trust Assets are waived as of the Effective Date. Notwithstanding such additional Retained Causes of Action as may be described within this exhibit, the following described claims and Causes of Action and litigation proceedings shall be Retained Causes of Actions:

1 Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan.


Active Litigation:

Except as set forth in the Plan or this exhibit, the Debtors reserve the right to pursue any and all claims, rights and Causes of Action in regard to active litigation matters against the parties referenced in the Debtors’ SOFAs, including in response to Question 7 thereof. The subject matter of the various active litigation matters currently involving each Debtor is listed in the SOFAs which are incorporated by reference pursuant to Article I.F. of the Plan. State Law Breach of Contract Claims:

Except as set forth in the Plan or this exhibit, any and all Causes of Action assertable by the Debtors for breach of contract or breach of warranty against any of the Debtors’ contract counter-parties, including—without limitation—any Cause of Action arising out of work performed on the Johnson Project, Channelview Project or Geismar VI Project. Preference Claims and Avoidance Actions: Except as set forth in the Plan or this exhibit, any and all Causes of Action pursuant to 11 U.S.C. §§ 105, 541, 542, 544, 5457, 548, 550 and 551, and the Texas Uniform Fraudulent Transfer Act § 24.001 et seq. (as applicable). Insurance Policy Claims:

Except as set forth in the Plan or this exhibit, any and all Causes of Action against any insurer of the Debtors arising out of such insurer’s obligations under the Debtors’ insurance policies. Rights Under Assumed Contracts:

Any rights, claims defenses, audit rights or Causes of Action arising under any executory contract or unexpired lease assumed during the Bankruptcy Cases pursuant to section 365 of the Bankruptcy Code. General Litigation:

Except as set forth in the Plan or this exhibit, the Debtors reserve the right to pursue potential litigation against any of the Debtors’ or any of the above-referenced Persons’ or Entities’ respective present or former owners, officers, directors, employees, consultants, financial advisors, attorneys, accountants and other representatives, to the extent they are not otherwise released pursuant to Article VIII of the Plan. Claims against these Persons or Entities include, but are not limited to, fraud, fraudulent transfer, breach of contract, fraudulent inducement, rescission, any declaratory action to remove any cloud to title of real property, breach of warranty, tortious interference, negligent misrepresentation, breach of fiduciary duty, piercing the corporate veil, alter ego, negligence, conspiracy to commit any of the forgoing torts or aiding and abetting in the commission of any of the foregoing torts.


LE FOLEY GARDERE FOLEY & LARDNER LLP

ATTORNEYS AT LAW

1000 LOUISIANA STREET, SUITE 2000 HOUSTON, TX 77002-2099 713.276.5500 TEL 713.276.5555 FAX WWW.FOLEY.COM

WRITER'S DIRECT LINE 713.276.5727 j me lko@fo ley.com EMAIL

January 3, 2020

Via e-mail: dalunkewicz hzinionak.com David Zdunkewicz, Esq. Hunton Andrews Kurth LLP 600 Travis Street, Suite 4200 Houston TX 77002

Via e-mail: [email protected] Chris Adams, Esq. Okin Adams LLP 1113 Vine St., Suite 240 Houston, TX 77002

Re: In re KP Engineering, LP, et al., Debtors: Jointly Administered under Case No. 19-34698 [Pending in the United States Bankruptcy Court for the Southern District of Texas]

Dear Mr. Zdunkewicz and Mr. Adams,

As you are aware, we represent the Official Committee of Unsecured Creditors (the "Committee") in the KP Engineering, LP, et al bankruptcy cases. Pursuant to the Official Committee of Unsecured Creditors' Notice of Rule 2004 Examination of KP Engineering, LP's Corporate Representative and Request for Production of Documents and Subpoena Duces Tecum [Docket No. 167] and the Official Committee of Unsecured Creditors' Notice of Rule 2004 Examination of KP Engineering, LLC's Corporate Representative and Request for Production of Documents and Subpoena Duces Tecum [Docket No. 168], the Committee has been, and continues to investigate the Debtors and non-debtor insiders.1 The Committee has been evaluating whether sufficient cause exists to initiate certain causes of action against such persons. The review thus far has led the Committee to conclude that there exists sufficient grounds for the Debtors to bring causes of action.

1 The Committee's review is ongoing. The Committee reserves the right to supplement this letter or any pleading filed with the Court with any additional information identified or any other issues discovered.

AUSTIN DETROIT MEXICO CITY SACRAMENTO TAMPA BOSTON HOUSTON MIAMI SAN DIEGO WASHINGTON, D.C. CHICAGO JACKSONVILLE MILWAUKEE SAN FRANCISCO BRUSSELS DALLAS LOS ANGELES NEW YORK SILICON VALLEY TOKYO DENVER MADISON ORLANDO TALLAHASSEE


January 3, 2020 David Zdunkewicz Chris Adams Page 2

The Committee hereby demands that the Debtor promptly consent to the Committee's authority and standing to investigate, commence, prosecute and, if appropriate, compromise (subject to Bankruptcy Court approval) potential claims and causes of action as to the following persons (the "Committee's Demand"):

Defendant Causes of Action Pursuant to 11 U.S.0 § 105, 541, 542, 544, 547, 548, 550, 551

TUFTA § 24.001 et seq.(as applicable) Brandon T. Steele Partnership distributions of at least $55.7million;

increases to the Partner Receivable of at least $12.7 million;2 breach of fiduciary duties; and guaranty of bank loans with Texas Capital Bank for Steele's benefit

Tony D. Freeman Partnership distributions of at least $4 million

Ric Steele Partnership distributions of at least $2.8 million

Ken Baxter Partnership distributions of at least $2.5 million

BTS Enterprises, Inc. Partnership distributions of at least $3.2 million; transfer of equity interests in KP Engineering, LP's former subsidiaries.

Ryno Engineering, LLC Partnership distributions of at least $6 million

Steele Resources, LLC Shared services payments of at least $7.8 million and lease payments of at least $160,000

KP Realty, LLC Lease payments of at least $2.9 million

KP Realty II, LLC Lease payments of at least $667,000.

BTS Aviation Payments to BTS Aviation related to the airplane of at least $3.2 million

West Village Realty, LLC Payments to West Village of at least $5.2 million.

The Debtors are conflicted from pursuing these third party causes of actions as described above, as such causes of action involve either potential defendants that are or were insiders of the Debtors, or causes of action for which insiders of the Debtors were materially involved in the underlying transactions. Consequently, the Debtors are not in a position to pursue such causes of

2 The Committee reserves all rights regarding the nature and characterization of the amounts attributable to the Partner Receivable.


January 3, 2020 David Zdunkewicz Chris Adams Page 3

action on behalf of the estate and its creditors, and the Committee is the only fiduciary of the Debtors' estates in a position to do so.

In order to maximize the potential value to the Debtors' estates and their stakeholders, it is imperative that the causes of action be pursued immediately. Please inform us by no later than 5:00 p.m. Central on January 6, 2020, if the Debtors consent to the Committee's Demand.

Please be advised that if the Debtors do not consent to the Committee's Demand, the Committee intends on filing a motion with the Bankruptcy Court seeking such relief.

—John P. Melko

4821-7694-5328.2



HOUSTON DIVISION


§ Case No. 19-34698 (DRJ)


ORDER (I) EXTENDING EXCLUSIVE PERIOD FOR DEBTORS TO FILE

AND OBTAIN ACCEPTANCES OF A PLAN OF REORGANIZATION AND (II) GRANTING LIMITED STANDING TO THE COMMITTEE

(Relates to ECF # 331)

The Court considered the Debtors’ Expedited Motion to Extend Exclusivity Period

Pursuant to 11 U.S.C. § 1121 and Request for Hearing (the “Motion”),2 filed by KP Engineering,

LP and KP Engineering, LLC, the above-captioned debtors and debtors in possession (the

“Debtors”). The Court, having reviewed the Motion and any objections thereto; and based on

the matters reflected in the record of the hearing held on the Motion; it appearing that the Court

has jurisdiction over this matter pursuant to 28 U.S.C. § 1334; that this is a core proceeding

pursuant to 28 U.S.C. § 157(b); that notice of the Motion was sufficient; and it appearing that the

relief requested is in the best interests of the Debtors, their estates, creditors, and other parties in

interest, and that good cause has been shown therefore, finds that the Motion should be

GRANTED with the additional relief described below. It is therefore hereby ORDERED that:

1. The Debtors’ exclusive period to file a plan of reorganization pursuant to 11

U.S.C. § 1121 is hereby extended to and including February 28, 2020.


2 Capitalized terms used but not defined herein shall have meanings ascribed in the Motion.

ENTERED 01/31/2020


2

2. The Debtors’ exclusive period to obtain acceptances of a plan of reorganization

pursuant to 11 U.S.C. § 1121 is hereby extended to and including April 28, 2020.

3. The Official Committee of Unsecured Creditors is hereby granted standing to

bring claims held by the Debtors against the insiders as identified on page two of the

Committee’s demand letter sent to the Debtors on January 3, 2020.

4. The relief granted in this Order is without prejudice to the Debtors’ rights to seek

additional extensions upon sufficient cause shown therefor.

Dated: _________________________, 2020

Signed: ____________________________________ DAVID R. JONES UNITED STATES BANKRUPTCY JUDGE

January 30, 2020.



HOUSTON DIVISION

IN RE: § Chapter 11 § KP ENGINEERING, LP et. al.1

§ § §

CASE NO. 19-34698 (DRJ) Jointly Administered

OBJECTION TO PROOF OF CLAIM OF TARGA PIPELINE MID-CONTINENT WESTTEX LLC

(PROOF OF CLAIM NO. 59) THIS IS AN OBJECTION TO YOUR CLAIM. THIS OBJECTION ASKS THE COURT TO DISALLOW THE CLAIM THAT YOU FILED IN THIS BANKRUPTCY CASE. IF YOU DO NOT FILE A RESPONSE WITHIN 30 DAYS AFTER THE OBJECTION WAS SERVED ON YOU, YOUR CLAIM MAY BE DISALLOWED WITHOUT A HEARING. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEYS. TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE: BTS Enterprises, Inc. (“BTS ), a creditor and party in interest, files this Objection to Proof

of Claim (“Objection to Claim”) filed by Targa Pipeline Mid-Continent WestTex LLC (“Targa”

or “Claimant”) in the amount of $83,099,253.76 (the “Claim”), and in support thereof would

respectfully show the Court as follows:

SUMMARY

1. BTS objects to the Claim filed by the Claimant in the amount of $83,099,253.76

because the claim is disputed, unliquidated, and the amounts sought are either contractually barred

or invalid as a matter of law. In support of this Objection to Claim, BTS submits the Declaration

of Brandon Steele (the “Steele Declaration”).



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JURISDICTION, VENUE AND CONSTITUTIONAL AUTHORITY

2. This Court has jurisdiction by virtue of 28 U.S.C. §§ 157 and 1334. This matter is

a core proceeding pursuant to 28 U.S.C. §§ 157(b)(1), (b)(2)(B). The statutory predicates for the

relief requested are 11 U.S.C. §502 and Bankruptcy Rule 3007. Venue is proper in this district

pursuant to 28 U.S.C. §1408(1). The Court has constitutional authority to enter a final order

regarding relief related to the disallowance of proofs of claim. Claimant filed a proof of claim

pursuant to 11 U.S.C. §501(a). The objection to a proof of claim is an express provision of the

Bankruptcy Code and is central to the public bankruptcy scheme. Therefore, the relief requested

falls within the Court’s authority and this Court may enter a final order granting the relief

requested.

RELIEF REQUESTED AND LEGAL AUTHORITY

A. Objection to Claim: Claimant’s Proof of Claim 59.

3. BTS hereby objects to the proof of claim filed by Claimant described in Paragraph

1 and requests the Claim be disallowed in its entirety. BTS has reviewed the claim and relevant

documents and determined that the Claim should be disallowed and expunged in its entirety.

B. Legal Authority

4. A properly filed proof of claim carries with it the presumption of validity. 11 U.S.C.

§502; Fed. R. Bankr. P. 3001(f). If a party objects to the proof of claim, the objection becomes a

contested matter of law under Fed. R. Bankr. P. 9014. The objecting party must merely rebut the

initial presumption of validity to disallow the claim. In re Rockefeller Ctr. Props., 272 B.R. 524,

539 (Bankr. S.D.N.Y., 2000). The ultimate burden to prove the validity of the claim then re-vests

upon the creditor. Id.


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5. Fed. R. Bankr. P. 9014 incorporates some of the rules from Part VII of the

Bankruptcy Rules. While not among those rules listed in the statute, Fed. R. Civ. P. Rule 12(e),

which requires a clear statement of the facts and allows dismissal for failure to clearly state a claim,

is often used to gauge allowance of the claim on its face. See In re Rimsat, Ltd., 223 B.R. 345,

346 (Bankr. N.D. Ind. 1998) (Rule 12(e) motion granted on facially deficient claim, discussing

standard for judging claims on their face).

6. Under Federal Rules of Civil Procedure Rules 8 and 12, the claimant must state a

claim with sufficient detail to apprise the reasonable person of the reason the Debtor owes the

amount indicated. See In re Grocerland Co-Op., Inc., 32 B.R. 427, 437 (Bankr. N.D. Ill. 1983)

(under former Rule 301 "for [the] court to approve a proof of claim, facts of sufficient particularity

must be supplied to put the trustee on notice.").

7. Further Federal Rule of Bankruptcy Procedure Rule 3001(a) provides that a proof

of claim is “‘a written statement setting forth a creditor’s claim’ [which] contemplates that the

creditor provide some kind of factual context for the origin of debtor’s liability to it.” In re Rimsat,

Ltd., 223 B.R. at 348.

8. In this case, the Proof of Claim filed by Targa should be disallowed for the

foregoing reasons. Targa’s claims against KP Engineering, LP, et al. (“KPE”) arise from an

executed contract between the parties which expressly limits KPE’s liability to $20,000,000.00.

However, Targa’s proof of claim makes an unsecured claim for $83,099,253.76 in direct

contravention of the limitation of liability, and Targa has no basis or argument for asserting any

claim in excess of the contractual liability cap. In addition, Targa improperly asserts a Trust Fund

claim under Texas statutes that explicitly do not allow Targa to assert such claims. Further, Targa’s

remaining claim, if any, is offset by damages KPE suffered as a result of Targa’s fraud. Finally,


of 21

Targa improperly claims entitlement to $591,762.50 in attorneys’ fees, which it cannot recover

from KPE, a limited partnership, under Texas law.2 For these reasons, as further described below,

Targa’s proof of claim should be disallowed.

C. Background

9. Targa is a subsidiary of Targa Resources Corp., a publicly traded, $15 billion

provider of midstream services and one of the largest independent midstream companies in North

America. Targa owns, operates, acquires, and develops midstream energy assets, including

facilities for gathering, compressing, treating, processing, and selling natural gas and storing,

fractionating, treating, transporting, and selling NGL and NGL products. According to Targa’s

publicly disseminated information, it controls the largest natural gas gathering and processing

system in the Permian Basin, selling more than 1 billion cubic feet of gas per day. That includes

the gas processed and to be processed at two plants designed and constructed by KPE as described

below. In all, Targa’s public documents state that it owns and operates 47 natural gas processing

plants, including those publicly announced and under construction, 27,000 miles of pipeline, and

5 crude oil terminals.

10. Targa became one of the dominant players in the Permian Basin market as a result

of expansion efforts that it began in or before 2016 through the rapid construction of a number of

cryogenic natural gas processing plants that, according to Targa’s forecasts, would almost double

its annual earnings to approximately $2 billion per year. As part of its expansion, Targa required

an engineering and construction contractor who could design and build up to 12 of those multi-

million dollar plants. Targa first recruited KPE to design and build a cryo plant in Upton County,

2 “(U)nder the plain language of section 38.001(8), a person may not recover attorney's fees against a partnership.” Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 576 (Tex. App. – Houston [14th Dist.] 2014, pet. denied).


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Texas – a 200 million cubic feet per day (200MM cf/d) facility known as the Joyce Project – based

on the representation and promise that KPE would be awarded more than 10 future, and similar

projects on lucrative financial terms. KPE designed, built, and completed the Joyce Project for

approximately $93 million. Although KPE incurred a significant loss on the Joyce Project – a loss

that KPE was not required to incur under the terms of the applicable agreement – Targa executives

assured KPE that its profits on future projects would more than cover that loss. The Joyce Project

has been fully operational since early 2018, likely generating millions of dollars in revenue per

day to Targa.

11. During the construction of the Joyce Project, KPE contracted with Targa to design

and build a second, 200MM cf/day gas cryogenic plant in Midland County known as the Johnson

Project. The notice of intent to proceed for this second project was sent by Targa project executive

David Scarborough, on Targa’s behalf, in July 2017. On August 3, 2017, KPE agreed to design

and build the Johnson Project for approximately $116 million, subject to changes ordered by Targa

that could impact both the cost and project schedule. To formalize this agreement, Targa and KPE

executed an Agreement for Engineering, Procurement, and Construction (the “Johnson Project

Agreement”). Under the agreement, the parties agreed to a Contract Price of $116 million and a

substantial completion deadline of August 1, 2018 – 12 months as Targa demanded – based on the

scope of the project as set forth in the Agreement. KPE’s ability to complete the project timely

and within budget, and KPE’s agreement to do so, necessarily required that Targa timely comply

with its obligations under the Johnson Project Agreement and afford KPE the ability to design and

construct the plant without interference, delays, and hindrances caused by Targa. Targa named

David Scarborough its project manager and gave him executive authority over both the Joyce and

Johnson Projects.


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12. The Johnson Project is the third project between the parties. The first project,

located in Channelview, Texas (the “Channelview Project”), is a crude oil splitter designed and

built by KPE, achieving substantial completion in August 2018. The second project – the Joyce

Project – is a natural gas cryogenic unit in Upton County, Texas. KPE designed and built the

Joyce Project, and that plant has been fully operational since the first quarter of 2018.

13. Almost immediately after the execution of the Johnson Project Agreement, and

despite what Targa recognized to be an extremely difficult schedule, Targa began to delay the

project and fail to comply with its obligations under the Johnson Project Agreement. For example,

the Johnson Project Agreement required Targa to obtain all necessary construction permits no later

than November 1, 2017. Targa, however, failed to obtain the permits timely, delaying the start of

construction by 40 days. Pursuant to the terms of the agreement, not only was Targa’s failure to

obtain the permits timely a breach of its obligations, but also it automatically extended the

substantial completion deadline to at least September 12, 2018.3

14. Targa’s refusal to grant KPE the 40 day schedule extension to which it was entitled

loomed large as the Johnson Project continued. Indeed, much of the cost incurred by KPE from

mid-May through August 3, 2018, on the Johnson Project related to accelerated manpower

requirements needed to try to meet the August 3, 2018, original substantial completion date. Many,

if not most, of these costs would not have been necessary had Targa extended the schedule as the

Johnson Project Agreement required.

15. By refusing to pay the amounts owed to KPE for the additional and accelerated

work, Targa left KPE with inadequate project revenue to pay its subcontractors and suppliers

3 Section 5.2(A) entitled KPE to a 40 day schedule extension without a formal change order. Targa, however, never granted this extension.


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timely. Understandably, some of those subcontractors sent notices of liens to Targa. Targa used

those lien notices as a pretext to suspend all payments to KPE. To add insult to injury, Targa then

claimed on July 13, 2018, that KPE had defaulted under the Johnson Project Agreement by

“[f]ailing to pay Subcontractors” and “[f]ailing to prosecute the Work in a diligent and efficient

manner in accordance with the Project Schedule . . . ,” and it afforded KPE a mere 10 days to

“cure” its alleged default. To be clear, Targa demanded that KPE pay all of its subcontracts at the

same time that Targa, unjustifiably and without excuse, was refusing to pay KPE for the work KPE

had already performed and continued to perform and for the construction costs that KPE had

incurred on Targa’s behalf. In short, Targa placed the full economic burden of building the

Johnson plant on KPE.

16. As a result of Targa’s actions, KPE became unable to pay its various subcontractors,

many of whom recorded liens against the Johnson Project. Many of the subcontractors and

suppliers filed lawsuits against KPE, asserting breach of contract and other claims, and seeking to

foreclose liens on the Johnson Project. KPE, already in a difficult position due to a Targa affiliate

delaying its payments for work performed on the Channelview Project, simply could not sustain

the Johnson Project and its accelerated schedule when Targa wrongfully denied KPE payments

necessary to fund the ongoing construction efforts. Targa’s actions eventually forced KPE to seek

bankruptcy protection in the present case.

D. Arguments & Authorities

Limitations of Liability

17. As a threshold matter, Targa’s liability is expressly limited to a maximum of

$20,000,000.00—rather than the $83,099,253.76 stated in Targa’s Proof of Claim.4

4 See Claim #59 – Targa Proof of Claim, page 4.


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18. In the Proof of Claim, Targa admits that its claims against KPE “are predicated on

the Agreement [between Targa and KPE] and the obligations set forth therein.”5 Targa is also

forced to admit that the Agreement upon which Targa seeks recovery contains a limitation of

liability provision that states “[i]n no event will [KPE’s] cumulative liability be in excess of

Twenty Million Dollars ($20,000,000.00).”6

19. Despite this explicit limitation of KPE’s liability, Targa then asserts that the

limitation does not apply because KPE’s actions fall within an exception related to “claims for

willful misconduct, fraud or gross negligence.”7

20. However, Targa does not allege any facts or circumstances that support willful

misconduct, fraud, or gross negligence. Targa’s allegations against KPE are simply that KPE

breached the Agreement with Targa. Under Texas law, even in the contractual context, willful

misconduct requires evidence of a specific intent to cause substantial injury.8 Targa does not allege

the existence of such evidence; indeed, it cannot, since no such evidence exists.

21. Targa claims that lien waivers signed by KPE constitute “fraud,” but Targa makes

no effort to link the timing of such waivers with the lien claims on the Johnson Project. In fact,

nearly all the lien claims are asserted by subcontractors and suppliers who were not paid because

Targa quit paying KPE, after Targa refused to extend the Guaranteed Substantial Completion Date

despite Targa delaying the Johnson Project by 40 days due to its inability to get required permits.9

5 See Claim #59 – Targa Proof of Claim, page 5. 6 See Claim #59 – Targa Proof of Claim, page 6; Johnson Project Agreement, §19.2. 7 See Claim #59 – Targa Proof of Claim, page 6. 8 See IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 898 (Tex. App. – Houston [1st Dist.] 2003, pet. denied). 9 Targa did not get permits for the Johnson Project until December 11, 2017, 40 days past its deadline in the Contract.


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22. The limitation of liability clause in Section 19.2 of the Johnson Project Agreement

is broad: “(i)n no event” will contractor’s cumulative liability exceed $20M.10 It does not contain

an exception for indemnity claims. In fact, it does not contain any exception at all. Targa’s

construction argument, which seeks to construe the limitation of liability clause as somehow not

limiting indemnity obligations, rewrites the Agreement to add a carve out for indemnity which is

not present or otherwise expressed in the Agreement itself. This would render the limitation of

liability clause, in part, meaningless since indemnity is one of the biggest liability risks facing a

party to a construction contract. Additionally, because the limitation of liability provision makes

clear that it does not apply to “willful misconduct, fraud or gross negligence,” under the expressio

unius est exclusio alterius principle of contract interpretation, that the expression of one thing

implies the exclusion of others, no other exclusions from the limitation of liability exist.11

Targa Is Not Entitled to Attorneys’ Fees.

23. Targa is not entitled to the $591,762.50 in attorneys’ fees it seeks, because the

Johnson Project Agreement does not contain a provision allowing such an award in the event of a

dispute. Therefore, Targa has no contractual basis to recover attorneys’ fees. Targa has no statutory

basis either. KPE is a limited partnership. It is well settled in Texas that Section 38.001 of the

Texas Civil Practices & Remedies Code, which creates a statutory right to attorneys’ fees in certain

breach of contract actions, does not grant recovery of fees against limited partnerships like KPE.12

Thus, Targa may not recover attorneys’ fees.

10 See Johnson Project Agreement, §19.2. 11 See OXY USA, Inc. v. Sw. Energy Prod. Co., 151 S.W.3d 277, 282 (Tex. App.—Corpus Christi 2005, pet. denied). 12 Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 576 (Tex. App. – Houston [14th Dist.] 2014, pet. denied).


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24. Targa may not recover attorneys’ fees under its Trust Fund Act claim either. The

Texas Supreme Court has clearly stated that such a recovery in not permitted under the Trust Fund

Act.13

Targa Has No Standing on Trust Fund Claims

25. Next, Targa alleges trust fund violations by KPE. This allegation makes no sense,

because Targa has no trust fund claim under Texas law. Under the Trust Fund Act, only

downstream beneficiaries of construction trust funds may pursue claims against the alleged trustee

(or holder) of these funds.

26. Under the Texas Trust Fund Act, “(c)onstruction payments are trust funds . . . if the

payments are made to a contractor . . . under a construction contract for the improvement of specific

real property in this state.”14 Targa, of course, was the owner of the subject projects on which

KPE worked; it made, or rather should have made, the construction payments.

27. Targa was not a beneficiary under the Trust Fund Act. A beneficiary is defined by

the Act as an “artisan, laborer, mechanic, contractor, subcontractor, or materialman who labors or

who furnishes labor or material for the construction or repair of an improvement on specific real

property.”15 Targa, as the owner, is not in any of these categories.

28. The statutory claim may only be asserted by a beneficiary where a trustee

“intentionally or knowingly or with intent to defraud, directly or indirectly retains, uses, disburses

or otherwise diverts trust funds without first fully paying all current or past due obligations

incurred by the trustee to the beneficiaries of the trust funds.”16

13 Dudley Construction, Ltd. v. Act Pipe and Supply, Inc., 545 S.W.3d 532, 541 (Tex. 2018). 14 Tex. Prop. Code §162.001(a). 15 Tex. Prop. Code §162.003(a). 16 Tex. Prop. Code §162.005(1).


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29. Targa claims that “(t)hrough assignment” it has the right to assert Trust Fund Act

claims and that these claims are tantamount to fraud claims. That is not correct. There are a great

many categories of proper expenses of funds that are not violations of the Trust Fund Act –

including expenditures necessary to keep the business running, general overhead, and project-

related costs – and the statute “does not criminalize poor business acumen or misfortune.”17 Targa

has not alleged any facts demonstrating that KPE’s alleged Trust Fund Act violations are the

equivalent of fraud sufficient to defeat the Agreement’s Limitation of Liability clause in Section

19.2.

30. Moreover, Targa has not provided any evidence of any assignment that would

entitle it to be equitably subrogated to any Trust Fund Claims against KPE that any beneficiary

might have standing to assert.

31. Equitable subrogation only applies where one party, acting involuntarily, “has paid

a debt for which another was primarily liable and which in equity should have been paid by the

latter.”18 Targa neither alleges nor demonstrates that it has paid any debt for which KPE was liable

under the Texas Trust Fund Act. Even if Targa had made such payments, payments issued pursuant

to the Trust Fund Act do not give rise to equitable subrogation claims.19

Targa Failed to Make Payments, So Trust Fund Claims Fail as a Matter of Law.

32. Even if Targa could assert Trust Fund Act claims, it has not alleged sufficient facts

to demonstrate any such claims related to work performed in the relevant time period which could

even arguably give rise to them. Any purported Trust Fund Act claims arising out of work

17 In re Pledger, 592 Fed. Appx. 296, 302-303 (5th Cir. 2015). 18 Frymire Eng’g Co., Inc. ex. Rel. Liberty Mutual Inc. Co. v. Jomar Int’l, Ltd., 259 S.W.3d 140, 143 (Tex. 2008). 19 Robax Corp. v. Prof'l Parks, Inc., CIV.A.3:07-CV-1399-D, 2008 WL 3244150, at *6 (N.D. Tex. Aug. 8, 2008); see also Matter of Monaco, 839 F.3d 413, 416 (5th Cir. 2016) (overturning bankruptcy court holding that the Trust Fund Act created equitable subrogation claim).


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performed or materials provided after June 28, 2018 on the Johnson Project fail as a matter of law,

because that is the last date of any Targa payment to KPE on the project.

33. Under the Trust Fund Act, Beneficiaries may only assert claims against a trustee

where a trustee intentionally, knowingly or with intent to defraud, “retains, uses, disburses or

otherwise diverts trust funds without first fully paying all current or past due obligations incurred

by the trustee to the beneficiaries of the trust funds.”20 The phrase “current or past due obligations”

is defined in the statute as “those obligations incurred or owed by the trustee for labor or materials

furnished in the direct prosecution of the work under the construction contract prior to the receipt

of the trust funds and which are due and payable by the trustee no later than 30 days following the

receipt of the trust funds.”21

34. There are two relevant deadlines for a valid Trust Fund Claim then: (a) the claim

must relate to labor or materials furnished before the trustee receives the trust funds; and (b) the

claim must relate to invoices which are due and payable by the trustee no later than 30 days

following the receipt of the trust funds. There is no violation of the Trust Fund Act unless a

claimant demonstrates with evidence that the amounts sought fall within this framework.22

35. Targa made its last payment to KPE for the Johnson Project on June 28, 2018. As

a matter of law, any trust fund claims against KPE related to labor or materials furnished on or

after that date fail.

36. For this reason, KPE does not (and did not) possess construction trust funds as

defined by the Trust Fund Act.23

Targa’s Claims are Offset by Fraud Damages

20 Tex. Prop. Code §162.031. 21 Tex. Prop. Code §162.005(2). 22 Choy v. Graziano Roofing of Texas, Inc., 322 S.W. 3d 276, 291 – 92 (Tex. App.—Houston [1st Dist.] 2009, no pet.). 23 See Tex. Prop. Code§ 162.001, et. seq.


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37. Targa’s string-along fraud drove KPE into bankruptcy. The elements of fraud are:

(1) a party makes a material misrepresentation; (2) the representation was false; (3) when the

representation was made, the maker knew the representation was false or asserted it recklessly

without any knowledge of its truth; (4) the party that made the false representation intended for

the other party to act on it; (5) the other party acted in reliance on the misrepresentation; and (6)

suffered injury as a result.24 In this case, the fraud came after the Johnson Project Agreement,

when Targa repeatedly misrepresented its intentions to KPE, to induce KPE to continue working,

and to continue having its subcontractors and suppliers work, despite Targa never intending to pay

KPE what it was owed or to provide KPE with schedule relief, with the end result that KPE was

left broke and facing its creditors empty-handed.25

38. Targa and its representatives repeatedly urged KPE to continue working on the

Johnson Project, represented that KPE would be paid for the work it performed, and encouraged

KPE to increase manpower on the Johnson Project, all the while intending to terminate KPE, deny

KPE the valid change orders to which KPE was entitled, and to drive up subcontractor costs on

KPE’s tab. KPE believed and acted upon Targa’s misrepresentations, encouraging its

subcontractors and suppliers to increase their work and deliveries. Targa, in turn, quit paying KPE,

causing KPE to seek bankruptcy protection.

39. The timeline of events shows that in early March 2018, Targa executives failed in

their efforts to get American State Bank, a financial institution owned by Brandon Steele26 to

extend a non-recourse loan to a company that the executives partially owned and directed (which

was not affiliated with Targa at that time). When American State Bank insisted that the request

24 See DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.1990). 25See Kajima Int'l, Inc. v. Formosa Plastics Corp., USA, 15 S.W.3d 289 (Tex.App. Corpus Christi 2000, pet. denied). 26 As described in the attached Declaration, Mr. Steele is the only manager of the Board of Managers of KP Engineering, LLC, (the “General Partner”), which is the general partner of KP Engineering, L.P.


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be evaluated as all arm’s length loans should be, Targa’s executive team responded with

vengeance. The executives had another company that they controlled, Targa Natural Resources,

extinguish the debt. From that point forward, Targa’s executives actively pursued a policy

intended to destroy KPE and its ultimate beneficial owner, Brandon Steele.

40. Targa has continued its wrongful conduct by inflating its claim in this bankruptcy

proceeding in an effort to drive up costs and prevent KPE from successfully emerging reorganized

from bankruptcy. Most importantly, evidence of Targa’s fraud, which KPE can demonstrate,

should be considered to offset Targa’s claims.

41. In early 2018, Targa’s conduct shows that it intended to deny KPE the schedule

extension to which the Johnson Project Agreement entitled KPE, and that it intended to use KPE

as a liability shield to get free labor and materials from KPE’s subcontractors on the Johnson

Project. Targa, however, hid its intention from KPE, encouraging KPE to continue to increase

manpower by: (a) sending “put it on my tab” emails through March 2018; (b) signing one of four

requested change orders in April 2018, furthering the impression more change orders would be

signed later; (c) continuing to hold meetings with KPE management, demanding KPE complete

the project under the original schedule without regard to escalating costs; and (d) continually

interfering, behind KPE’s back, with KPE’s subcontractors, including explicitly promising those

contractors “that Targa management will ensure that they are taken care of” well before Targa

terminated KPE.27 The motivation for these actions is set forth below.

42. KPE’s commercial relationship with Targa’s parent company, the publicly traded

Targa Resources Corporation (“TGRP” here and on the New York Stock Exchange) began with

the signing of the contract for the Channelview Splitter Project on April 15, 2016, a lump sum

27 See the July 10, 2018 email from David Scarborough to Barry Stucky and Clark White (Exhibit 1).


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contract in the amount of $116,257,799.00, signed by Joe Bob Perkins, then the chief executive

officer of both Targa and its publicly-traded parent company.28 In its Form 10-Q for the period

ended March 31, 2016, Targa stated, “(t)he Channelview Splitter is expected to be completed by

early 2018 and has an estimated total cost of approximately $140 million.”29

43. KPE later signed two more contracts with Targa, one for the Joyce cryo plant, a

lump sum contract for approximately $88,000,000 signed on January 17, 2017, and a lump sum

Johnson Project contract for approximately $116,000,000 signed on August 3, 2017.

44. One month before the Joyce contract was signed, on December 15, 2016, a

company called Sajet Resources, LLC (“Sajet”), along with two of its affiliates, entered into a

loan agreement with American State Bank for a loan. Sajet borrowed $10,000,000, with Brandon

Steele, personally, participating in making $3,900,000 of the loan. The loan was secured by real

property and had an interest rate of prime plus 6%, with a maturity date of December 14, 2019.

On December 15, 2016, KPE made a $2,500,000 distribution to Brandon Steele, which he directed

to be wired to Targa, as part of the proceeds to fund the loan.

45. Sajet had originally been spun off from TGRP, and according to Targa’s Form 10-

K for the year ended December 31, 2016, “Rene Joyce and James Whalen, directors of Targa

[were] also directors of Sajet” and “Joe Bob Perkins, James Whalen, Michael Heim, Jeffrey

McFarland, Paul Chung and Matthew Meloy, executive officers of Targa, [were] also executive

officers of Sajet.”30 In addition, that same 10-K states elsewhere “(f)ormer holders of our pre-IPO

common equity, including certain of our executive managers and directors own a controlling

interest in Sajet Resources, LLC.”31

28 See Claim #62, Exhibit B. 29 Page 41, Targa Form 10-Q for the period ended March 31, 2016 (Exhibit 2). 30 Page 126, Targa Form 10-K for the year ended December 31, 2016 (Exhibit 3). 31 Note 18, Targa Form 10-K for the year ended December 31, 2016 (Exhibit 3).


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46. Targa’s project manager on both the Joyce and Johnson Projects was David

Scarborough (“Scarborough”). Mr. Scarborough communicated directly with KPE personnel,

including engineers. On the Joyce Project, which had a substantial completion date of February

15, 2018, Mr. Scarborough directed or signed 24 different change orders.

47. On the Johnson Project, which had a substantial completion date of August 1, 2018,

Scarborough only signed four formal change orders, the last in early April 2018. Rather than sign

actual change orders, Scarborough sent at least six emails requesting changes from KPE and telling

its personnel to “put it on my tab.”32 However, Scarborough would later refuse to sign formal

change orders memorializing these requests.

48. Targa’s behavior changed significantly from the Joyce Project to the Johnson

Project, despite the two projects having substantial completion dates only six months apart,

although KPE would not learn of Targa’s new intentions until after the Johnson Project was already

significantly underwater.

49. In early March 2018, when the Joyce Project was winding down and nearing

completion,33 Targa executives asked Brandon Steele to consent to the 81% majority equity owner

of Sajet selling its interest in Sajet to a Targa affiliate. Mr. Steele referred the matter to American

State Bank, and American State Bank informed the Sajet/Targa executives that approval of such a

transaction would be contingent on the execution of personal guarantees by the Sajet/Targa

executives.

50. On March 19, 2018, Targa or one of its affiliate companies directly wired American

State Bank the payoff of the entire amount that Sajet had borrowed, including the amount of the

32 See attached Scarborough emails (Exhibit 4). 33 Page 38 of Targa’s Form 10-Q for the period ended March 31, 2018 states that the Joyce Project “began operations in the first quarter of 2018.” (Exhibit 5).


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loan in which Brandon Steele personally had participated. Targa’s Form 10-Q for the period ended

March 31, 2018 states the following:

Note 17 – Related Party Transactions Relationship with Sajet Resources LLC In December 2010, immediately prior to Targa’s initial public offering, Sajet Resources LLC (“Sajet”) was spun-off from Targa. Certain directors and executive officers of Targa are also directors and executive officers of Sajet. The primary assets of Sajet are real property. Sajet also holds (i) an ownership interest in Floridian Natural Gas Storage Company, LLC through a December 2016 merger with Tesla Resources LLC, (ii) an ownership interest in Allied CNG Ventures LLC and (iii) certain technology rights. Former holders of our pre-IPO common equity, including certain of our current and former executives, managers and directors collectively own an 18% interest in Sajet. In March 2018, we acquired the 82% interest in Sajet that was held by Warburg Pincus sponsored funds for $5.0 million in cash (the “Warburg Funds Transaction”) and extinguished Sajet’s third-party debt in exchange for a promissory note from Sajet of $9.9 million. Minority shareholders had the right to join the transaction and sell up to 100% of their membership interests in Sajet to us at substantially the same terms and price as the Warburg Funds Transaction (the “Tag-Along Rights”). Minority shareholders who currently hold, or formerly held, executive positions at Targa, and minority shareholders who are board members of Targa, agreed not to exercise their Tag-Along Rights resulting from the Warburg Funds Transaction. Certain minority shareholders chose to sell interests totaling 1.6% for approximately $0.1 million in April 2018. 51. TGRP did not disclose in its public filings that American State Bank was the lead

lender (or that Brandon Steele personally participated in the loan) to Sajet. Mr. Steele, in addition

to owning American State Bank, was also the indirect, beneficial owner of KPE, the company with

which Targa had contracted for over $300,000,000 in construction projects. TGRP did not disclose

in its public filings that it paid off Sajet’s debt to American State Bank and participant Brandon

Steele as part of its acquisition of Sajet.

52. The March 2018 date is critical to understanding the Johnson Project. Up through

that time, there were no lien claims on the Johnson Project. KPE was timely paying subcontractors


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and suppliers. On information and belief, all of the claims asserted in bankruptcy by

subcontractors and suppliers on the Johnson Project were incurred after May 1, 2018.

53. From that time forward, Targa had no intention of extending the schedule or signing

the extensive change orders to which KPE was entitled. However, Targa did just enough to keep

KPE engaged on the Johnson Project, encouraging it to continue to incur significant costs.

54. On April 4, 2018, David Scarborough signed Change Order #4 on the Johnson

Project, increasing the contract value by $242,721.00. Consistent with Scarborough’s course of

conduct on the Joyce Project, the change order merely formalized work and changes that

Scarborough had previously, informally, directed. The continuation of this system, one where

formal change orders were signed after informal directions were given, induced KPE to continue

to rely on representations made to it by Scarborough.

55. Targa issued Purchase Orders for over $4,000,000.00 to KPE, for Schwob

Mechanical and Gregg Insulators, directing them to work night shifts to increase manpower on the

Johnson Project. Targa did not, however, increase the Johnson Project Agreement value or permit

KPE compensation (much less profit) for its additional overhead.

56. Beginning in late April 2018, Clark White, a Targa executive with responsibility

over the construction of west Texas cryogenic facilities, met repeatedly with KPE’s President,

William Preston. These meetings continued through July, and Mr. White repeatedly led Mr.

Preston to believe that Targa intended to increase the value of the Johnson Project Agreement.

David Scarborough admitted as much in his July 10, 2018 email to Barry Stucky, Clark White,

Chris Lemoine and Kerry Stanley, in which he wrote:


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Speculating he is buying time to allow Clark and Bill to talk on Thursday. Richard also said that the topic of weekly invoicing by KPE to Targa may be on the table for Thursday’s lunch.34 57. Simultaneously, and without KPE’s knowledge, Targa was actively entering into

separate contracts with various subcontractors who were providing labor and supplies to KPE on

the Johnson Project. Emails with ROWC and ICG, two subcontractors on the Johnson Project,

show Targa working to enter into separate agreements with KPE’s subcontractors almost a month

before Targa improperly terminated KPE.35 A large amount of the monetary claims asserted

against KPE in this bankruptcy relate to work performed after Targa was actively undercutting

KPE’s position as general contractor and informing KPE’s subcontractors that Targa would make

sure they were “taken care of.”36

58. On August 3, 2018, having accomplished its goal of using KPE as a liability shield

from the claims of subcontractors and suppliers, Targa terminated KPE from the Johnson Project.

59. If Targa had extended the Johnson Project schedule by 40 days, as was required by

the Johnson Project Agreement, then the guaranteed substantial completion date for the Johnson

Project would have been September 12, 2018. On page 40 of Targa’s Form 10-Q for the period

ended September 30, 2018, Targa disclosed the following:

Recent Developments Gathering and Processing Segment Expansion Permian Midland Processing Expansions

34 See David Scarborough’s July 10, 2018 e-mail to Barry Stucky and Clark White. (Exhibit 1) 35 David Scarborough’s July 12, 2018 e-mail to Randy Patin, of ROWC, regarding direct payment. (Exhibit 6). See also David Scarborough’s July 10, 2018 e-mail to Barry Stucky and Clark White regarding secret offsite meetings with Richard Bacon of ROWC for “development of the MSA.” (Exhibit 1). 36 David Scarborough’s July 10, 2018 e-mail to Barry Stucky and Clark White. (Exhibit 1).


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In May 2017, we announced plans to build a 200 MMcf/d cryogenic natural gas processing plant, known as the Johnson Plant, which began operations in the third quarter of 2018.37

Thus, Targa appears to have completed the Johnson Project consistent with the schedule extension

of 40 days that KPE should have received.

60. Targa’s motivation for driving up KPE’s costs in this bankruptcy, asserting a

wildly inflated claim for compensation to ensure its placement as the chairperson of the Official

Committee of Unsecured Creditors, and generally obstructing the reorganization of KPE is merely

a continuation of Targa’s primary plan, which is preventing KPE from holding it to account for

what it did on the Johnson Project.

NOTICE

61. Pursuant to Bankruptcy Rule 3007(a)(2) and Local Rule 9013-1(e), notice of this

Objection has been provided by first-class mail to the Claimant as indicated on the Claim. BTS

submits that, in light of the nature of the relief requested, no other or further notice need be given.

WHEREFORE, BTS Enterprises, Inc., prays that this Court disallow and expunge the

Claim in its entirety and grant such other and further relief as is just and proper, in law or equity.

DATED: April 6, 2020

37 Page 40 of Targa’s Form 10-Q for the period ended September 30, 2018 (Exhibit 7).


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Respectfully submitted, ANDREWS MYERS, P.C. /s/ T. Josh Judd T. Josh Judd State Bar No. 24036866 [email protected] 1885 Saint James Place, 15th Floor Houston, Texas 77056 (713) 850-4200 – Telephone (713) 850-4211 – Facsimile & T. CHAMPE FITZHUGH State Bar No. 2404587 [email protected] 919 Congress Avenue, Suite 1050 Austin, Texas 78701 Telephone: (512) 900-3012 Facsimile: (512) 900-3082 Attorneys for Brandon Steele

CERTIFICATE OF SERVICE I hereby certify that on April 6, 2020, a true and correct copy of the foregoing Objection to Claim was served via US Mail to the parties listed below at the addresses listed. Amy K. Wolfshohl c/o Porter Hedges LLP 1000 Main Street, 36th Floor Houston, Texas 77002 Counsel for Claimant Christopher Adams 1113 Vine St., Suite 240 Houston, Texas 77002 Tel: 713.228.4100 Fax: 888.865.2118 Attorneys for the Debtors /s/ T. Josh Judd T. JOSH JUDD



HOUSTON DIVISION

IN RE: § Chapter 11 § KP ENGINEERING, LP et. al.1

§ § §

CASE NO. 19-34698 (DRJ) Jointly Administered

OBJECTION TO PROOF OF CLAIM OF TARGA CHANNELVIEW LLC (PROOF OF CLAIM NO. 62)

THIS IS AN OBJECTION TO YOUR CLAIM. THIS OBJECTION ASKS THE COURT TO DISALLOW THE CLAIM THAT YOU FILED IN THIS BANKRUPTCY CASE. IF YOU DO NOT FILE A RESPONSE WITHIN 30 DAYS AFTER THE OBJECTION WAS SERVED ON YOU, YOUR CLAIM MAY BE DISALLOWED WITHOUT A HEARING. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEYS. TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE: BTS ENTERPRISES, INC. (“BTS”), a creditor and party in interest, files this Objection to

Proof of Claim (“Objection to Claim”) filed by Targa Channelview LLC (“”Targa” or “Claimant”)

in the amount of $27,003,892.21 (the “Claim”), and in support thereof would respectfully show

the Court as follows:

SUMMARY

1. BTS objects to the Claim filed by the Claimant in the amount of $27,003,892.21

because: (1) there is a valid limitation of liability clause in the Contract and no exceptions apply;

(2) Targa does not have a Trust Fund Claim of any sort; (3) Saulsbury’s supposed lien is limited

by the Texas Property Code, and even the maximum permitted amount would be inflated, so

Targa’s Claim is likewise inflated; (4) Targa has withheld at least $7,858,877.74 from KPE, which



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even Targa acknowledges should offset any claim Targa might have; and (5) Targa is not entitled

to any award of attorneys’ fees under the Contract or any statute.

2. When taken all together, the maximum claim that Targa could assert, prior to other

offsets related to work performed which are legally owed to KPE, is $11,625,779.90 for indemnity

for Saulsbury’s claim (and this number is improperly inflated by Saulsbury) plus $2,000,000 in

the maximum permissible amount of liquidated damages for delay, plus the $2,311,134.09 Targa

alleges it is due as a result of defective work, minus the $7,858,877.74 in funds that Targa owes

KPE but is withholding2, for a total maximum possible claim of $8,078,036.25.3 In support of this

Objection to Claim, BTS submits the Declaration of Brandon Steele (the “Steele Declaration”).

JURISDICTION, VENUE AND CONSTITUTIONAL AUTHORITY

3. This Court has jurisdiction by virtue of 28 U.S.C. §§ 157 and 1334. This matter is

a core proceeding pursuant to 28 U.S.C. §§ 157(b)(1), (b)(2)(B). The statutory predicates for the

relief requested are 11 U.S.C. §502 and Bankruptcy Rule 3007. Venue is proper in this district

pursuant to 28 U.S.C. §1408(1). The Court has constitutional authority to enter a final order

regarding relief related to the disallowance of proofs of claim. Claimant filed a proof of claim

pursuant to 11 U.S.C. §501(a). The objection to a proof of claim is an express provision of the

Bankruptcy Code and is central to the public bankruptcy scheme. Therefore, the relief requested

falls within the Court’s authority and this Court may enter a final order granting the relief

requested.

RELIEF REQUESTED AND LEGAL AUTHORITY

A. Objection to Claim: Claimant’s Proof of Claim 62.

2 See Claim #62 – Targa Proof of Claim, footnote 1. 3 BTS does not believe this amount is proper either; Targa created the problems on the Channelview Project and Saulsbury compounded them.


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4. BTS hereby objects to the proof of claim filed by Claimant described in Paragraph

1 and requests the Claim be reduced to a maximum amount of $8,078,036.25. BTS has reviewed

the claim and relevant documents and determined that the Claim 62 is objectionable.

5. The Claim should be disallowed except as provided above.

B. Legal Authority

6. A properly filed proof of claim carries with it the presumption of validity. 11 U.S.C.

§502; Fed. R. Bankr. P. 3001(f). If a party objects to the proof of claim, the objection becomes a

contested matter of law under Fed. R. Bankr. P. 9014. The objecting party must merely rebut the

initial presumption of validity to disallow the claim. In re Rockefeller Ctr. Props., 272 B.R. 524,

539 (Bankr. S.D.N.Y., 2000). The ultimate burden to prove the validity of the claim then re-vests

upon the creditor. Id.

7. Fed. R. Bankr. P. 9014 incorporates some of the rules from Part VII of the

Bankruptcy Rules. While not among those rules listed in the statute, Fed. R. Civ. P. Rule 12(e),

which requires a clear statement of the facts and allows dismissal for failure to clearly state a claim,

is often used to gauge allowance of the claim on its face. See In re Rimsat, Ltd., 223 B.R. 345,

346 (Bankr. N.D. Ind. 1998) (Rule 12(e) motion granted on facially deficient claim, discussing

standard for judging claims on their face).

8. Under Federal Rules of Civil Procedure Rules 8 and 12, the claimant must state a

claim with sufficient detail to apprise the reasonable person of the reason the Debtor owes the

amount indicated. See In re Grocerland Co-Op., Inc., 32 B.R. 427, 437 (Bankr. N.D. Ill. 1983)

(under former Rule 301 "for [the] court to approve a proof of claim, facts of sufficient particularity

must be supplied to put the trustee on notice.").

9. Further Federal Rule of Bankruptcy Procedure Rule 3001(a) provides that a proof


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of claim is “‘a written statement setting forth a creditor’s claim’ [which] contemplates that the

creditor provide some kind of factual context for the origin of debtor’s liability to it.” In re Rimsat,

Ltd., 223 B.R. at 348.

10. In this case, the Proof of Claim filed by Targa should be disallowed for the

foregoing reasons. Targa’s proof of claim makes an unsecured claim for $27,003,892.21, most of

which is based on its claim that it is entitled to indemnity from KPE, despite Targa admittedly

withholding $6,425,109.98 in retainage and $1,433,767.76 in contract funds from KPE4, which

should offset any claim that Targa Channelview makes. The bulk of Targa’s “claims” are related

to an inflated $22,635,550.10 claim made by Saulsbury, which exceeds the statutory limits for a

proper lien claims and should not, therefore, be counted in full. Targa’s claim also includes a

purported $2,000,000.00 in liquidated damages, despite the fact that Targa was the cause of delay

on the Project, since Targa failed to properly start up the Project or operate it safely. Targa also

claims it is entitled to $58,208.02 in attorneys’ fees, which it cannot recover from KPE, a limited

partnership, under Texas law.5 For these reasons, as further described below, the bulk of Targa’s

proof of claim should be summarily disallowed.

C. Background

11. Targa is a subsidiary of Targa Resources Corp., a publicly traded, $15 billion

provider of midstream services and one of the largest independent midstream companies in North

America. Targa owns, operates, acquires, and develops midstream energy assets, including

facilities for gathering, compressing, treating, processing, and selling natural gas and storing,

fractionating, treating, transporting, and selling NGL and NGL products. According to Targa’s

4 See Claim #62 – Targa Proof of Claim, footnote 1. 5 “(U)nder the plain language of section 38.001(8), a person may not recover attorney's fees against a partnership.” Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 576 (Tex. App. – Houston [14th Dist.] 2014, pet. denied).


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publicly disseminated information, it controls the largest natural gas gathering and processing

system in the Permian Basin, selling more than 1 billion cubic feet of gas per day. That includes

the gas processed and to be processed at two plants designed and constructed by KPE as described

below. In all, Targa’s public documents state that it owns and operates 47 natural gas processing

plants, including those publicly announced and under construction, 27,000 miles of pipeline, and

5 crude oil terminals.

12. Targa and KPE entered into an Agreement for Engineering, Procurement and

Construction dated April 15, 2016 (the “Contract”) for KPE to design and build a crude oil splitter

in Channelview, Texas (the “Channelview Project”). KPE entered into a May 2, 2016 subcontract

with Saulsbury Industries, Inc. (“Saulsbury”) for much of the construction work on the

Channelview Project. See Exhibit 1.

13. The original Contract date for substantial completion was February 20, 2018. That

date was extended once to April 12, 2018, and should have been extended further. In addition to

the delays that Targa caused, which were significant and related to Targa’s failure to provide

permanent power and fulfill other material obligations of the Contract, the Channelview Project

was also impacted by Hurricane Harvey.

14. Pursuant to the Contract, “Start-Up” of the Channelview Project was defined as the

date hydrocarbons are introduced into the System. Under the Contract, Start-Up and

Commissioning can only occur after Substantial Completion. On June 4, 2018, Patrick Babineaux

of Targa sent an email to KPE noting that Targa had introduced 100,000 barrels of oil into the

Channelview Project, thereby accomplishing Start-Up. Nevertheless, Targa refused to sign a

certificate of substantial completion with KPE until 2019.

15. KPE received its last payment from Targa on the Channelview Project on February


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7, 2018. Targa, however, directly paid the following subcontractors after it made its last payment

to KPE:

• $7,528,168.60 to Saulsbury on or around August 24, 2018;

• $2,716,992.38 to Saulsbury in early October 2018;

• $1,379,253.99 to American Tank and Vessel in early October 2018;

• $33,729.52 to Turner Industries in early October 2018;

• $9,286.00 to Innovative Industrial in early October 2018.

16. As of today, Targa owes KPE at least $6,415,823.97 in retainage for the work on

the Channelview Splitter. That amount derives from subtracting the October 2018 payments to

subcontracts from the $10,992,593.24 balance on the Contract, which consists of the

$2,805,338.69 KPE is owed for a final progress payment and $8,187,254.55 KPE is owed for

retention on completed work.

17. In addition, and more pertinent here, Targa only asserts two direct claims against

KPE: (a) one for the maximum $2,000,000.00 in liquidated damages for delay;6 and (b)

$2,311,134.09 in claims for defective work. All of the other claims that Targa makes related to

the Channelview Project arise out of indemnity claims for liens filed by non-Targa entities.

D. Arguments & Authorities

Limitation of Liability

18. As a threshold matter, all of Targa’s claims against KPE are expressly limited to a

maximum of $20,000,000.00—rather than the $27,003,892.21 stated in Targa’s Proof of Claim.7

6 Section 5.2(c) of the Contract, the applicability of which Targa admits in Paragraph 12 of Claim 62. 7 See Claim #62 – Targa Proof of Claim, paragraph 7.


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19. In the Proof of Claim, Targa admits that its claims against KPE “are predicated on

the Agreement [between Targa and KPE] and the obligations set forth therein.”8 However, Targa

is also forced to admit that the Agreement upon which Targa seeks recovery contains a limitation

of liability provision, in Section 19.2, that states “[i]n no event will [KPE’s] cumulative liability

be in excess of Twenty Million Dollars ($20,000,000.00).”9

20. Despite this explicit limitation of KPE’s liability, Targa then asserts that the

limitation does not apply because KPE’s actions fall within an exception “because Targa

Channelview’s claims result from the Debtor’s willful misconduct demonstrated by its intentional

refusal to perform its obligations along with trust fund violations.”10 In other words, Targa claims

KPE breached the Contract – and Targa tries to characterize the breach as willful misconduct.

21. However, Targa does not allege any facts or circumstances that support willful

misconduct, fraud, or gross negligence. As such, Targa cannot avoid the contractual limitation of

liability. Under Texas law, even in the contractual context, willful misconduct requires evidence

of a specific intent to cause substantial injury.11 Targa does not even allege the existence of such

evidence; indeed, it cannot, no such evidence exists.

22. The limitation of liability clause in Section 19.2 here is broad: “(i)n no event” will

contractor’s cumulative liability exceed $20,000,000. It does not contain an exception for

indemnity claims. Targa’s construction argument, which seeks to construe the limitation of

liability clause as not limiting indemnity obligations, rewrites the Contract to add a carve-out for

indemnity which is not present or otherwise expressed in the Contract. This would render the

8 See Claim #62 – Targa Proof of Claim, paragraph 9. 9 See Claim #62 – Targa Proof of Claim, paragraph 10; Exhibit A to Claim #62, §19.2. 10 See Claim #62 – Targa Proof of Claim, paragraph 10. 11 See IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 898 (Tex. App. – Houston [1st Dist.] 2003, pet. denied).


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limitation of liability clause, in part, meaningless since indemnity is one of the biggest

obligations/risks for which a party to a Project construction contract would want to limit

liability. Additionally, because the limitation of liability provision makes clear that it does not

apply to “willful misconduct, fraud or gross negligence,” under the expressio unius est exclusio

alterius principle of contract interpretation, that the expression of one thing implies the exclusion

of others, no other exclusions from the limitation of liability exist.12

23. Section 16.3 of the Contract expressly refers to “Lien Indemnification.” This

section could have carved out an exception to the Limitation of Liability in Section 19.2, if that

was the intent of the Parties. It does not, because the Parties intended the Limitation of Liability

to cover all potential damages.

24. Thus even if everything else in Targa’s statement of claim was correct, and it is not,

its claim against KPE cannot be larger than $20,000,000.00.

Targa Has No Standing on Trust Fund Claims

25. Targa confusingly alleges that KPE’s purported “trust fund violations” entitle Targa

to an exception to Section 19.2 of the Contract’s Limitation of Liability. But Targa has no standing

to assert trust fund violations against KPE, because Targa has no trust fund claim under Texas law.

Under the Trust Fund Act, only downstream beneficiaries of construction trust funds may pursue

claims against the alleged trustee (or holder) of these funds.

26. The Texas Trust Fund Act states that “(c)onstruction payments are trust funds . . .

if the payments are made to a contractor . . . under a construction contract for the improvement of

specific real property in this state.” TEX. PROP. CODE ANN § 162.001(a). Targa, of course,

12 See OXY USA, Inc. v. Sw. Energy Prod.Co., 151 S.W.3d 277, 282 (Tex. App.—Corpus Christi 2005, pet. denied).


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was the owner of the subject project on which KPE worked; it made, or rather should have made,

the construction payments.

27. Targa was not a beneficiary under the Trust Fund Act. A beneficiary is defined by

the Act as an “artisan, laborer, mechanic, contractor, subcontractor, or materialman who labors or

who furnishes labor or material for the construction or repair of an improvement on specific real

property.”13 Targa, as the owner, does not fit within any of these categories.

Targa Failed to Make Payments, So Trust Fund Claims Fail as a Matter of Law.

28. In addition, any purported Trust Fund Act claims arising out of work performed or

materials provided after February 7, 2018 on the Channelview Project fail as a matter of law,

because that is the last date of any Targa payment to KPE on the Channelview Project.

29. Under the Trust Fund Act, Beneficiaries may only assert claims against a trustee

where a trustee intentionally, knowingly or with intent to defraud, “retains, uses, disburses or

otherwise diverts trust funds without first fully paying all current or past due obligations incurred

by the trustee to the beneficiaries of the trust funds.”14 The phrase “current or past due obligations”

is defined in the statute as “those obligations incurred or owed by the trustee for labor or materials

furnished in the direct prosecution of the work under the construction contract prior to the receipt

of the trust funds and which are due and payable by the trustee no later than 30 days following the

receipt of the trust funds.”15

30. There are two relevant deadlines for a valid Trust Fund Claim then: (a) the claim

must relate to labor or materials furnished before the trustee receives the trust funds; and (b) the

claim must relate to invoices which are due and payable by the trustee no later than 30 days

13 Tex. Prop. Code §162.003(a). 14 Tex. Prop. Code §162.005(1). 15 Tex. Prop. Code §162.005(2).


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following the receipt of the trust funds. There is no violation of the Trust Fund Act unless a

claimant demonstrates with sufficient evidence that the amounts sought fall within this

framework.16

31. Targa made its last payment to KPE for the Channelview Project on February 7,

2018. Any trust fund claims against KPE related to labor or materials furnished on the

Channelview Project after February 7, 2018 fail as a matter of law.

32. On the Channelview Project, for example, Smith & Loveless, Inc. is asserting that

KPE (through its principals), violated the Trust Fund Act, based entirely on invoices that were sent

in June, July and October of 2018, each of which is for work performed after February 7, 2018,

and none of which were due and payable within 30 days of February 7, 2018. The claim fails as a

matter of law, and any claim that Targa makes based on these claims fails for the same reason.

33. Saulsbury Industries, Inc. also alleges that KPE and its principals violated the Texas

Trust Fund Act, again based on labor and materials furnished to the Channelview Project after

February 7, 2018, most of which not only exceeds the arguable contract balance for its subcontract

work, but is a part of a lump sum delay claim that it did not “invoice” until sometime in 2019, over

a year and a half past the time in which such an invoice could even arguably be payable and due

sufficient to sustain a Trust Fund Act claim. In fact, on information and belief, Targa paid

Saulsbury $10,245,161.00 between August and October 2018, without any of those funds being

paid first to KPE. Targa, despite the contractual limitation on damages, appears to be also claiming

that it is damaged in the same inflated amount as Saulsbury’s improper claims. Thus Saulsbury’s

inflated and unsubstantiated $22,000,000+ Trust Fund Act claim, which it ginned up with an expert

report, and which is doubled by Targa also claiming for the same amount, is largely, if not entirely,

16 Choy v. Graziano Roofing of Texas, Inc., 322 S.W. 3d 276, 291 – 92 (Tex. App.—Houston [1st Dist.] 2009, no pet.).


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foreclosed as a matter of law due to the timing of the work on which the claim is based and the

date on which such work was invoiced.17

34. Simply put, KPE does not (and did not) possess construction trust funds as defined

by the Trust Fund Act on the Channelview Project because KPE cannot be liable for Trust Fund

Act claims on monies that Targa never paid it. See TEX. PROP. CODE ANN § 162.001, et. seq.

Saulsbury’s Lien Claims Are Inflated.

35. The bulk of Targa’s claims are based on its assertion that KPE must indemnify it

for Saulsbury’s lien claims. But even Targa asserts that its lien liability under the Texas Property

Code should be limited to 10% of the Contract’s value under Section 53.105 of the Texas Property

Code, which would be, according to Targa, $11,625,779.90. Thus, any amount for which Targa

claims against KPE in excess of indemnity for that amount should be disallowed.

Targa’s Claims Should Be Offset by the $7,858,877.74 It Has Withheld from KPE.

36. In footnote 2 of Targa Channelview LLC’s Proof of Claim Breakdown18, it admits:

“Targa Channelview currently holds approximately $6,425,109.98 in retainage and $1,433,767.76

in contract funds due to outstanding lien claims.” It then states, “(t)hese amounts may offset

Debtor’s liability.”19 And indeed, they do. These amounts were withheld from KPE. Targa should

not be permitted to claim it is owed $27,003,892.21 while burying in a footnote that it owes over

a quarter of that money back.

Targa May Not Recover Attorneys’ Fees from KPE.

37. Targa is not entitled to attorneys’ fees because the contract does not contain a

provision allowing such an award in the event of a dispute and KPE is a limited partnership. It is

17 To the extent Saulsbury asserts a lien claim for this amount, that claim also fails as a matter of law because it exceeds the retainage on the Channelview Project, so any doubling of the amount by Targa remains unfounded and dubious. 18 Exhibit A to Claim #62 – Targa Proof of Claim. 19 Exhibit A to Claim #62 – Targa Proof of Claim.


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well settled in Texas that Section 38.001 of the Texas Civil Practices & Remedies Code, which

creates a statutory right to attorneys’ fees in certain breach of contract actions, does not apply

against limited partnerships like KPE.20 Thus, Targa may not seek attorneys’ fees.

38. Targa may not recover attorneys’ fees under its Trust Fund Act claim either. The

Texas Supreme Court has clearly stated that such a recovery in not permitted under the Trust Fund

Act.21

NOTICE

39. Pursuant to Bankruptcy Rule 3007(a)(2) and Local Rule 9013-1(e), notice of this

Objection has been provided by first-class mail to the Claimant as indicated on the Claim. BTS

submits that, in light of the nature of the relief requested, no other or further notice need be given.

E. Conclusion.

40. In summation, Targa’s claim for $27,003,892.21 is inflated and should be pared

back to a maximum of $8,078,036.25. Even that amount is contested, as Targa’s direct claims are

unfounded and Saulsbury’s lien claim is inflated at even $11,625,779.90. Accordingly, Targa’s

claim should be disallowed as identified herein.

20 Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560, 576 (Tex. App. – Houston [14th Dist.] 2014, pet. denied). 21 Dudley Construction, Ltd. v. Act Pipe and Supply, Inc., 545 S.W.3d 532, 541 (Tex. 2018).


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Respectfully submitted, ANDREWS MYERS, P.C. /s/ T. Josh Judd T. Josh Judd State Bar No. 24036866 [email protected] 1885 Saint James Place, 15th Floor Houston, Texas 77056 (713) 850-4200 – Telephone (713) 850-4211 – Facsimile & T. CHAMPE FITZHUGH State Bar No. 2404587 [email protected] 919 Congress Avenue, Suite 1050 Austin, Texas 78701 Telephone: (512) 900-3012 Facsimile: (512) 900-3082 Attorneys for Brandon Steele

CERTIFICATE OF SERVICE I hereby certify that on April 6, 2020, a true and correct copy of the foregoing Objection to Claim was served via US Mail to the foregoing parties: Amy K. Wolfshohl c/o Porter Hedges LLP 1000 Main Street, 36th Floor Houston, Texas 77002 Counsel for Claimant Christopher Adams 1113 Vine St., Suite 240 Houston, Texas 77002 Tel: 713.228.4100 Fax: 888.865.2118 Attorneys for the Debtors /s/ T. Josh Judd T. JOSH JUDD


WITNESS AND EXHIBIT LIST UNITED STATES BANKRUPTCY … · KP Engineering, LP and KP Engineering,...

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