MCDERMOTT WILL EMERY LLP Timothy W. Walsh …strettodocs.s3.amazonaws.com/files/448c9abd-2012-4d9a-af...MCDERMOTT WILL & EMERY LLP Timothy W. Walsh Darren Azman Ravi Vohra 340 Madison

MCDERMOTT WILL & EMERY LLP

Timothy W. Walsh

Darren Azman

Ravi Vohra

340 Madison Avenue

New York, New York 10173

Telephone: (212) 547-5615

Facsimile: (212) 547-5444

Counsel to the Debtors and

Debtors in Possession

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

)

In re: ) Chapter 11

)

AGERA ENERGY LLC, et al.,1 )

)

Case No. 19-23802 (RDD)

Debtors.

)

)

(Jointly Administered)

NOTICE OF FILING OF AMENDED PROPOSED ORDER CONFIRMING

MODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION

OF AGERA ENERGY LLC, ET AL., DATED JUNE 12, 2020

PLEASE TAKE NOTICE that on April 1, 2020, Agera Energy LLC and the above-

captioned debtors, as debtors and debtors in possession (collectively, the “Debtors”) in these

chapter 11 cases filed the Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al.

[Docket No. 594] and the Disclosure Statement for Joint Chapter 11 Plan of Liquidation of

Agera Energy LLC, et al. [Docket No. 595] in the United States Bankruptcy Court for the

Southern District of New York.

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

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

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

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

19-23802-rdd Doc 770 Filed 06/12/20 Entered 06/12/20 02:47:38 Main Document Pg 1 of 81

2

PLEASE TAKE FURTHER NOTICE that on May 4, 2020, the Debtors filed the First

Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket No. 666]

and the First Amended Disclosure Statement for First Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al. [Docket No. 667].

PLEASE TAKE FURTHER NOTICE that on May 9, 2020, the Debtors filed the

Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket No.

677] (the “Second Amended Plan”) and the Second Amended Disclosure Statement for Second

Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket No. 678].

PLEASE TAKE FURTHER NOTICE that on June 9, 2020, the Debtors filed the

Modified Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al.,

dated June 9, 2020 [Docket No. 757] (the “Modified Plan”), reflecting certain modifications to

the Second Amended Plan.

PLEASE TAKE FURTHER NOTICE that on June 10, 2020, the Debtors filed the: (a)

Debtors’ Memorandum of Law in Support of Confirmation of the Modified Second Amended

Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., Dated June 9, 2020 [Docket

No. 762]; (b) Declaration of Mark Linzenbold in Support of Confirmation of Modified Second

Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., Dated June 9, 2020

[Docket No. 761]; and (c) proposed form of Order Confirming Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al., Dated June 9, 2020 [Docket No. 763] (the “Proposed

Order”).

PLEASE TAKE FURTHER NOTICE that on June 12, 2020, the Debtors filed the

Modified Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al.,


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dated June 9, 2020 [Docket No. 768] (the “Plan”), reflecting further modifications to the

Modified Plan.

PLEASE TAKE FURTHER NOTICE that the Debtors hereby submit their amended

proposed form of Order Confirming Joint Chapter 11 Plan of Liquidation of Agera Energy LLC,

et al., Dated June 12, 2020 (the “Amended Proposed Order”), which is attached hereto as

Exhibit 1.

PLEASE TAKE FURTHER NOTICE that attached hereto as Exhibit 2 is a redline

comparison of the Proposed Order against the Amended Proposed Order.

PLEASE TAKE FURTHER NOTICE that the hearing to consider confirmation of the

Plan will commence on June 12, 2020, at 2:00 p.m. (prevailing Eastern Time) before the

Honorable Robert D. Drain in the United States Bankruptcy Court, Southern District of New

York (the “Court”), 300 Quarropas Street, Courtroom No. 118, White Plains, NY 10601. Unless

a further General Order of the United States Bankruptcy Court for the Southern District of New

York is issued providing for such hearing to be in person, such hearing shall be conducted

telephonically, with registration through Court Solutions.

PLEASE TAKE FURTHER NOTICE that copies of the Plan may be obtained free of

charge by visiting the website of Stretto at http://cases.stretto.com/agera. You may also obtain

copies of any pleadings by visiting the Court’s website at http://www.nysb.uscourts.gov in

accordance with the procedures and fees set forth therein.


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Dated: June 12, 2020 MCDERMOTT WILL & EMERY LLP

New York, New York

/s/ Darren Azman

Timothy W. Walsh

Darren Azman

Ravi Vohra

340 Madison Avenue

New York, NY 10173

Telephone: (212) 547-5615

Facsimile: (212) 547-5444

Email: [email protected]

[email protected]




Exhibit 1

Proposed Confirmation Order




)

In re: ) Chapter 11

)


)

Case No. 19-23802 (RDD)

Debtors.

)

)


ORDER CONFIRMING MODIFIED SECOND AMENDED

JOINT CHAPTER 11 PLAN OF LIQUIDATION OF

AGERA ENERGY LLC, ET AL. DATED JUNE 12, 2020

WHEREAS the above-captioned debtors and debtors in possession (collectively, the

“Debtors”), as “proponent[s] of the plan” within the meaning of section 1129 of title 11 of the

United States Code (the “Bankruptcy Code”) filed the Second Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al., dated May 9, 2020 [Docket No. 677] (such plan, as

transmitted to parties in interest, the “Second Amended Plan,” and as subsequently modified as

reflected in the Modified Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy

LLC, et al., dated June 9, 2020 [Docket No 757] and in the Modified Second Amended Joint

Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., dated June 12, 2020 [Docket No

768], the “Plan”)2 and the Second Amended Disclosure Statement for Second Amended Joint

Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket No. 678] (the “Disclosure

Statement”);

WHEREAS on May 9, 2020, the Bankruptcy Court entered an order (the “Disclosure

Statement Order”) [Docket No. 680], which, among other things, (i) approved the Disclosure




headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510. 2 Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Plan, Disclosure

Statement (as defined below), or Disclosure Statement Order (as defined below).


2

Statement under Bankruptcy Code section 1125 and Rule 3017 of the Federal Rules of

Bankruptcy Procedure (the “Bankruptcy Rules”), (ii) established June 12, 2020 as the date for

the hearing to consider confirmation of the Plan (the “Confirmation Hearing”), (iii) approved the

form and manner of notices, including the notice of the Confirmation Hearing (the

“Confirmation Hearing Notice”), (iv) approved the form of Ballots (as defined below) and Opt-

Out Forms (as defined below), and (v) approved the solicitation materials and solicitation

procedures;

WHEREAS the Affidavit of Publication of the Notice of (A) Hearing to Confirm Plan of

Liquidation and (B) Date by Which to Submit Objections [Docket No. 689] (the “Publication

Affidavit”), sworn to on May 12, 2020, was filed evidencing publication of the Confirmation

Hearing Notice, which included notice of the deadline for filing objections to the Plan, in the

New York Times on May 12, 2020 in accordance with the Disclosure Statement Order;

WHEREAS the Confirmation Hearing Notice and (i) as to holders of Claims in

Class 1B – Prepetition BP Secured Claim, Class 2 – General Unsecured Claims, Class 3 – BP

Deficiency Claim and Allowed BP Subordinated Claim, and Class 4 – Allowed Prepetition

CBLIC Claims entitled to vote, the Disclosure Statement (with the Second Amended Plan

annexed thereto), the Disclosure Statement Order, and an appropriate form of ballot and return

envelope (such ballot and return envelope being referred to as a “Ballot”), (ii) as to holders of

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

Claims, Non-Tax Priority Claims, and Claims in Class 1A – Other Secured Claims and as to the

U.S. Trustee, a Notice of Opt-Out Form to Holders of Claims Deemed to Accept the Second

Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. (the “Deemed to

Accept Opt-Out Form”), (iii) as to holders of Interests in Class 5 – Interests, a Notice of Opt-Out


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Form to Holders of Interests Deemed to Reject the Second Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al. (the “Deemed to Reject Opt-Out Form” and, together

with the Deemed to Accept Opt-Out Form, the “Opt-Out Forms”), and (iv) as to counterparties to

any executory contracts or unexpired leases that were not rejected as of the Voting Record Date

(as defined in the Disclosure Statement Order), the Notice to Contract and Lease Counterparties

(the “Contract/Lease Notice”), were transmitted as set forth in the Affidavit of Service of Clarissa

D. Cu, sworn to on May 14, 2020 [Docket No. 697] (the “Solicitation Affidavit”), evidencing the

timely service of the Disclosure Statement (with the Second Amended Plan annexed thereto),

related solicitation materials, Opt-Out Forms, and Contract/Lease Notice, and such service is in

accordance with the Disclosure Statement Order and adequate as provided by Bankruptcy Rule

3017(d);

WHEREAS the Debtors filed, on June 2, 2020, the Notice of Filing of Supplement to the

Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket No.

736], which included the Liquidation Trust Agreement and a Liquidation Trustee engagement

letter, and on June 9, 2020, the Notice of Filing of Amended Supplement to the Second Amended

Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket No. 752], which

revised the Liquidation Trust Agreement;

WHEREAS Colorado Bankers Life Insurance Company (“CBLIC”) filed an objection to

confirmation of the Second Amended Plan [Docket No. 753] (the “Objection”); and the U.S.

Trustee, ISO New England, Todd Sandford, Mark Linzenbold, and Raima Jamal provided

comments to the Second Amended Plan, which have been incorporated in the Plan;

WHEREAS on June 9, 2020 the Debtors filed (i) the Debtors’ Memorandum of Law in

Support of Confirmation of the Modified Second Amended Joint Chapter 11 Plan of Liquidation


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of Agera Energy LLC, et al. Dated June 9, 2020 (the “Confirmation Brief”) and (ii) the

Declaration of Mark Linzenbold in Support of Plan Confirmation of the Modified Second


(the “Linzenbold Declaration”) [Docket No. 761];

WHEREAS on June 10, 2020, Stretto filed Amended Certification of Stretto Regarding

Tabulation of Votes in Connection with the Second Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al. [Docket No. 760] (the “Voting Certification”), attesting

and certifying the method and results of the tabulation of votes on the Second Amended Plan;

WHEREAS the Confirmation Hearing was held on June 12, 2020, at which time the

Bankruptcy Court considered (a) confirmation of the Plan, (b) the establishment and

administration of the Liquidation Trust (as defined in the Plan) and (c) approval of the Plan’s

injunctive, release, and exculpation provisions, and the record was closed;

WHEREAS the Confirmation Hearing Notice was deemed good and sufficient notice of

the Confirmation Hearing;

NOW, THEREFORE, based on the Publication Affidavit, the Solicitation Affidavit, the

Confirmation Brief, the Linzenbold Declaration, and the Voting Certification; and upon the

entire record of the Bankruptcy Cases, including, without limitation, the record made at the

Confirmation Hearing; and after finding that due, sufficient, and adequate notice of the

Confirmation Hearing has been provided to holders of Claims, Interests and all other parties in

interest herein; and after due deliberation and good and sufficient cause appearing therefor,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

IT IS HEREBY FOUND AND DETERMINED THAT:

A. Findings of Fact and Conclusions of Law. The findings and conclusions set forth

herein, together with the findings of fact and conclusions of law set forth in the record of the


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Confirmation Hearing, constitute the Bankruptcy Court’s findings of fact and conclusions of law

pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy

Rule 9014. To the extent any of the following findings of fact constitute conclusions of law,

they are adopted as such. To the extent any of the following conclusions of law constitute

findings of fact, they are adopted as such.

B. Exclusive Jurisdiction; Venue; Core Proceeding. The Bankruptcy Court has

jurisdiction over the Bankruptcy Cases pursuant to 28 U.S.C. §§ 157(a)–(b) and 1334(b). Venue

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

pursuant to 28 U.S.C. § 157(b)(2)(L), and the Bankruptcy Court has exclusive jurisdiction to

determine whether the Plan complies with the applicable provisions of the Bankruptcy Code and

should be confirmed.

C. Judicial Notice. The Court takes judicial notice of the docket of the Bankruptcy

Cases maintained by the Clerk of the Court and/or its duly-appointed agent, including, without

limitation, all pleadings and other documents filed, all orders entered, and the evidence and

arguments made, proffered, or adduced at the hearings held before the Court during the pendency

of the Bankruptcy Cases, including, but not limited to, the hearing to consider the adequacy of

the Disclosure Statement and the Disclosure Statement Order entered in connection therewith.

D. Chapter 11 Petitions. On October 4, 2019, the Debtors commenced with this

Court voluntary cases under chapter 11 of the Bankruptcy Code. The Debtors are eligible

debtors under Bankruptcy Code section 109, and the Debtors are proper plan proponents under

Bankruptcy Code sections 1121(a) and (c). The Debtors are authorized to continue to operate

their businesses and manage their properties as debtors in possession pursuant to Bankruptcy


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Code sections 1107(a) and 1108. No trustee or examiner has been appointed pursuant to

Bankruptcy Code section 1104.

E. Burden of Proof. As the proponents of the Plan, the Debtors have the burden of

proving that the elements of Bankruptcy Code section 1129(a) and (b) have been met by a

preponderance of the evidence. The Debtors have met such burden by a preponderance of the

evidence.

F. Bankruptcy Rule 3016(a). In accordance with Bankruptcy Rule 3016(a), the Plan

is dated and identifies the Debtors as proponents of the Plan.

G. Transmittal and Mailing of Materials; Notice. The Confirmation Hearing Notice,

Disclosure Statement, Disclosure Statement Order, Second Amended Plan, Ballots, Opt-Out

Forms, and Contract/Lease Notice, which were transmitted and served as set forth in the

Solicitation Affidavit, have been transmitted, served, and published in compliance with the

Disclosure Statement Order, Bankruptcy Code, Bankruptcy Rules, Local Bankruptcy Rules for

the Southern District of New York (the “Local Rules”), and all other applicable laws, rules, and

regulations. Such transmittal, service, and publication were adequate and sufficient, and no other

or further notice is or shall be required.

H. Adequacy of Voting Procedures. The solicitation by the Debtors of votes to

accept or reject the Plan was proposed and conducted in good faith and complied with

Bankruptcy Code sections 1125 and 1126, Bankruptcy Rules 3017 and 3018, the Disclosure

Statement Order, all other applicable provisions of the Bankruptcy Code and Bankruptcy Rules,

and all other applicable laws, rules, and regulations.

I. Good Faith Solicitation. Based on the record before the Court in the Bankruptcy

Cases, the Debtors, their directors, officers, employees, members, agents, advisors, and


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professionals have acted in “good faith” within the meaning of Bankruptcy Code section 1125(e)

in compliance with the applicable provisions of the Bankruptcy Code and Bankruptcy Rules in

connection with all their respective activities relating to the solicitation of acceptances or

rejections of the Second Amended Plan and their participation in the activities described in

Bankruptcy Code section 1125, and are entitled to the protections afforded by Bankruptcy Code

section 1125(e). Such solicitation, including with respect to the injunction, release (including the

third-party release provision), and exculpation provisions of the Plan, also satisfied the

requirements of due process.

J. Voting Results. Pursuant to the Voting Certification, Class 1B – Prepetition BP

Secured Claims, Class 2 – General Unsecured Claims, and Class 3 – BP Deficiency Claim and

BP Subordinated Claim have voted to accept the Plan. Class 4 – Prepetition CBLIC Claims

initially voted to reject the Second Amended Plan, but by virtue of the modifications embodied

in the Plan filed on June 12, 2020 [Docket No. 768], is now deemed to have (i) voted to accept

the plan and (ii) not opted out of the Third Party Release. Class 1A – Other Secured Claims will

be unimpaired under the Plan and is therefore deemed to have accepted the Plan pursuant to

Bankruptcy Code section 1126(f). Class 5 – Interests will receive no Distributions or property

under the Plan and is therefore deemed to have rejected the Plan pursuant to Bankruptcy Code

section 1126(g).

K. Classification of Claims. The classification scheme of Claims and Interests in the

Plan is reasonable and complies with the requirements of Bankruptcy Code sections 1122 and

1123. Claims or Interests in each particular Class are substantially similar to other Claims or

Interests contained in such Class.


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L. Unclassified Claims. Pursuant to Bankruptcy Code section 1123(a)(1), DIP

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

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

under the Plan and shall instead be treated separately as unclassified Claims and fees on the

terms set forth in Article 2 of the Plan.

M. Treatment of Unimpaired Classes. Article 4 of the Plan specifies that Class 1A –

Other Secured Claims, is unimpaired under the Plan, thereby satisfying Bankruptcy Code section

1123(a)(2).

N. Treatment of Impaired Classes. As required by and in compliance with

Bankruptcy Code section 1123(a)(1) and (a)(3), the Plan identifies the Classes of Claims against

or Interests in the Debtors and specifies the treatment of each Class of Claims or Interests under

the Plan. Consistent with Bankruptcy Code section 1123(a)(4), the Plan provides the same

treatment for each Claim or Interest within a particular Class.

O. Implementation. As required by Bankruptcy Code section 1123(a)(5), the Plan

contemplates adequate means for its execution and implementation including, but not limited to:

(a) the substantive consolidation of the Debtors with respect to the treatment of all Claims and

Interests; (b) the establishment of the Liquidation Trust to, inter alia, distribute the Liquidation

Trust Assets; (c) the Distribution of the proceeds derived from the Estates’ Assets; (d) the

procedures governing the Allowed Claims and Distributions; and (e) the dissolution of the

Debtors.

P. No Issuance of Securities. The Plan is a liquidating Plan, and the Debtors will not

be issuing equity securities. Therefore, Bankruptcy Code section 1123(a)(6) is inapplicable in

the Bankruptcy Cases.


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Q. Liquidation Trustee. In conjunction with Bankruptcy Code section 1123(a)(7),

the Notice of Filing of Amended Supplement to the Second Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al. [Docket No. 752] provides for Wilmington Savings

Fund Society, FSB (the “Liquidation Trustee”) to be appointed as the Liquidation Trustee to

administer the Liquidation Trust in accordance with the Liquidation Trust Agreement and take

all actions as set forth in the Plan.

R. Impaired Classes. Consistent with Bankruptcy Code section 1123(b), the Plan

provides for (a) the impairment of Class 1B – Prepetition BP Secured Claim, Class 2 – General

Unsecured Claims, Class 3 – BP Deficiency Claim and BP Subordinated Claim, Class 4 –

Prepetition CBLIC Claims and Class 5 – Interests, (b) leaving unimpaired Class 1A – Other

Secured Claims, (c) the rejection of executory contracts and unexpired leases, (d) the settlement

of various Claims and controversies, (e) the retention of all Causes of Action, except those

expressly released under the Plan and Final DIP Order, and (d) release, injunction, and/or

exculpation of certain parties.

S. Executory Contracts and Unexpired Leases. Consistent with Bankruptcy Code

section 1123(b)(2), Article 6 of the Plan provides for the rejection of each of the Debtors’

executory contracts and unexpired leases, except with respect to the Debtors’ Insurance Policies,

pursuant to Bankruptcy Code section 365, as of the Effective Date of the Plan, to the extent they

have not (i) been previously assumed or rejected pursuant to an order of the Bankruptcy Court or

applicable provisions of the Bankruptcy Code, (ii) expired or otherwise terminated pursuant to

their terms, or (iii) been the subject of a separate assumption motion filed by one of the Debtors.

T. Rejection Damages. Claims created by the rejection of executory contracts or

unexpired leases pursuant to Section 6.2 of the Plan must be filed no later than thirty (30) days


10

after the Effective Date. Any such Claims for which a proof of claim is not filed and served

within such time will be forever barred from assertion and shall not be enforceable against the

Debtors, their Estates, or the Liquidation Trustee.

U. No Objection to Deemed Rejection of Contracts and Leases. No party to an

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

objected to such rejection.

V. Injunction, Exculpation, and Releases. The Bankruptcy Court has jurisdiction

under sections 157(a)–(b) and 1334(a) and (b) of title 28 of the United States Code and authority

under Bankruptcy Code sections 105 and 1141 to approve the injunctions or stays, injunction

against interference with the Plan, releases, and exculpation set forth in Article 8 of the Plan.

(a) The Injunction Provisions. The injunction provisions set forth herein and in

Section 8.1 of the Plan: (a) are essential to the Plan; (b) are necessary to preserve

and enforce the releases set forth in Sections 8.6 and 8.7 of the Plan, the

exculpation provisions in Sections 8.4 and 8.5 of the Plan, and the compromises

and settlements implemented under the Plan; and (c) are appropriately tailored to

achieve that purpose. The injunction provisions set forth herein and in Section

8.1 of the Plan: (a) are within the jurisdiction of this Court under 28 U.S.C.

§§ 157(a)–(b) and 1334(a), 1334(b), and 1334(d); (b) are an essential means of

implementing the Plan pursuant to section 1123(a)(5) of the Bankruptcy Code; (c)

are an integral element of the transactions incorporated into the Plan; (d) confer

material benefits on, and are in the best interests of, the Debtors, the Estates, and

their creditors and other stakeholders; (e) are important to the overall objectives of

the Plan; and (f) are consistent with Bankruptcy Code sections 105, 1123, and

1129, other provisions of the Bankruptcy Code, and other applicable law. The

record of the Confirmation Hearing and the Bankruptcy Cases is sufficient to

support the injunction provisions set forth herein and in Section 8.1 of the Plan.

(b) The Exculpation Provisions. The exculpation provisions set forth herein and in

Sections 8.4 and 8.5 of the Plan were proposed in good faith and are essential to

the Plan. The record in the Bankruptcy Cases fully supports the exculpation

provisions, and such provisions are appropriately tailored to protect the

exculpated parties from inappropriate litigation and to exclude actions determined

by Final Order to have constituted gross negligence or willful misconduct.

(c) CBLIC Release in Favor of BP. CBLIC consented to the release it granted in

favor of BP pursuant to Section 4.2 of the Plan.


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(d) BP Release in Favor of CBLIC. BP consented to the release it granted in favor of

CBLIC pursuant to Section 4.5 of the Plan.

(e) The Debtor Release. The release granted by the Debtors and their Estates

pursuant to Section 8.6 of the Plan (the “Debtor Release”) represents a valid

exercise of the Debtors’ business judgment, and is: (a) consensual; (b) essential to

the Plan; (c) given in exchange for the good and valuable consideration provided

by the Released Parties; (d) a good-faith settlement and compromise of the Claims

and Causes of Action released by the Debtors; (e) materially beneficial to, and in

the best interests of, the Debtors, their Estates, and all holders of Claims and

Interests, and important to the overall objectives of the Plan; (f) fair, equitable,

and reasonable; (g) given and made after due notice and opportunity for a hearing;

(h) not the subject of any objection to the Plan, which Plan was overwhelmingly

accepted by those entitled to vote to accept or reject the Plan; (i) a bar to any of

the Debtors asserting any Claim or Cause of Action released pursuant to the

Debtor Release against any of the Released Parties; and (j) consistent with

Bankruptcy Code sections 105, 524, 1123, 1129, and 1141 and other applicable

provisions.

(f) The Third Party Release.

(i) The release set forth in Section 8.7 of the Plan (the “Third Party Release”),

as has been established based upon the record in the Bankruptcy Cases and

the evidence presented at the Confirmation Hearing, is an essential

provision of the Plan. The Third Party Release is: (a) consensual; (b)

essential to the Plan; (c) given in exchange for the good and valuable

consideration provided by the Released Parties; (d) a good-faith settlement

and compromise of the Claims and Causes of Action released by the Third

Party Release; (e) materially beneficial to, and in the best interests of, the

Debtors, their Estates, and all holders of Claims and Interests, and

important to the overall objectives of the Plan; (f) fair, equitable, and

reasonable; (g) given and made after due notice and opportunity for a

hearing, as well as a clear opportunity to opt-out of such Release; (h) not

the subject of any objection to the Plan, which Plan was overwhelmingly

accepted by those entitled to vote to accept or reject the Plan; (i) a bar to

any of the Releasing Parties asserting any Claim or Cause of Action

released pursuant to the Third Party Release against any of the Released

Parties; and (j) consistent with Bankruptcy Code sections 105, 524, 1123,

1129, and 1141 and other applicable provisions.

(ii) The Third Party Release is an integral part of the Plan. The Third Party

Release facilitated participation in both the Plan and the Debtors’ chapter

11 process generally. The Third Party Release was instrumental in

developing a Plan and reaching an agreement that maximizes value for all

of the Debtors’ stakeholders, and was critical in incentivizing the parties to

support the Plan and preventing potentially significant and time-

consuming litigation regarding the parties’ respective rights and interests.


12

As such, the Third Party Release appropriately offers certain protections to

parties who constructively participated in the Debtors’ restructuring

process by, among other things, supporting the Plan. Furthermore, the

Third Party Release is consensual or is otherwise appropriate under

controlling law.

(iii) The scope of the Third Party Release is appropriately tailored to the facts

and circumstances of the Bankruptcy Cases, and parties in interest

received due and adequate notice of the Third Party Release. Among other

things, the Plan and Disclosure Statement provide appropriate and specific

disclosure and notice with respect to the claims and causes of action that

are subject to the Third Party Release, as well as the opportunity to opt out

of the Third Party Release, and no other disclosure or notice is necessary.

The Third Party Release is specific in language, integral to the Plan, and

given for adequate consideration. In light of, among other things, the

value provided by the Released Parties to the Debtors’ Estates and the

critical nature of the Third Party Release to the Plan, the Third Party

Release is appropriate.

W. Plan Compliance with Bankruptcy Code – 11 U.S.C. § 1129(a)(1). As required

by Bankruptcy Code section 1129(a)(1), the Plan complies with all applicable provisions of the

Bankruptcy Code. As set forth in the Confirmation Brief and discussed herein, (a) the Claims

and Interests are properly classified in accordance with Bankruptcy Code sections 1122 and

1123(a)(1); (b) unimpaired Classes are specified as required under Bankruptcy Code section

1123(a)(2); (c) treatment of impaired Classes is specified pursuant to Bankruptcy Code section

1123(a)(3); (d) the Plan provides for the same treatment for each Claim or Interest in each

respective Class unless the holder of a particular Claim or Interest has agreed to a less favorable

treatment of such Claim or Interest, thereby satisfying Bankruptcy Code section 1123(a)(4); (e)

the Plan provides an adequate and proper means for its implementation as required under

Bankruptcy Code section 1123(a)(5); (f) the Plan complies with section 1123(a)(7) as it contains

only provisions that are consistent with the interests of Creditors and Interest holders and with

public policy with respect to the manner of selection of the Liquidation Trustee; and (g) the

Plan’s additional provisions are appropriate and not inconsistent with the applicable provisions


13

of the Bankruptcy Code. Bankruptcy Code Sections 1123(a)(6) and 1123(a)(8) are inapplicable

in these Bankruptcy Cases.

X. Debtors’ Compliance with Bankruptcy Code – 11 U.S.C. § 1129(a)(2). As

required by section 1129(a)(2), the plan proponents, the Debtors, have complied with all of the

applicable provisions of the Bankruptcy Code, including, without limitation, the disclosure and

solicitation requirements of Bankruptcy Code sections 1125 and 1126. Except as provided for in

the Disclosure Statement Order, the Debtors transmitted solicitation materials, including Ballots,

to the holders of Claims in Class 1B – Prepetition BP Secured Claims, Class 2 – General

Unsecured Claims, Class 3 – BP Deficiency Claim and BP Subordinated Claim, and Class 4 –

Prepetition CBLIC Claim entitled to vote on the Plan, and non-voting materials, including Opt-

Out Forms, to holders of Claims and fees not classified, Class 1A – Other Secured Claims, and

Class 5 – Interests, only after the Bankruptcy Court approved the Disclosure Statement as

containing adequate information. Such materials were distributed in compliance with the

requirements of the Disclosure Statement Order, the Bankruptcy Code, and the Bankruptcy

Rules.

Y. Plan Proposed in Good Faith – 11 U.S.C. § 1129(a)(3). As required by section

1129(a)(3), the Plan has been proposed in good faith and not procured by fraud or any means

forbidden by law. The Debtors have valid and legitimate business reasons in proposing the Plan

including, inter alia, providing recoveries in satisfaction of Claims to its various stakeholders.

Z. Payments for Services or Costs and Expenses – 11 U.S.C. § 1129(a)(4). As

required by Bankruptcy Code section 1129(a)(4), any payment made or to be made by the

Debtors for services or for costs and expenses in connection with the Bankruptcy Cases, or in

connection with the Plan, other than those incurred in the ordinary course of business, has been


14

approved, or is subject to the approval of, the Bankruptcy Court, as reasonable. Each

Professional who holds or asserts a Professional Fee Claim for services rendered before the

Effective Date is required to file an application for final allowance of compensation and

reimbursement no later than the first Business Day after the thirtieth (30th) day after the

Effective Date.

AA. Directors, Officers and Insiders – 11 U.S.C. § 1129(a)(5). In accordance with

Bankruptcy Code section 1129(a)(5)(A), the Debtors have disclosed the identity of Wilmington

Savings Fund Society, FSB as the Liquidation Trustee. To the extent the Liquidation Trustee

would fall within the ambit of section 1129(a)(5), the Plan satisfies the requirements of such

section as the Liquidation Trustee has been identified under the Plan. This appointment is

consistent with the interests of Creditors and holders of Interests and with public policy.

BB. No Rate Changes – 11 U.S.C. § 1129(a)(6). Bankruptcy Code section 1129(a)(6)

is inapplicable because the Debtors are winding down their affairs and no longer charging rates

that are the subject of any regulatory commission with jurisdiction.

CC. Best Interests of Creditors – 11 U.S.C. § 1129(a)(7). As required by Bankruptcy

Code section 1129(a)(7), with respect to all impaired Classes of Claims or Interests, each holder

of a Claim or Interest of such Class has either accepted the Plan or will receive or retain under

the Plan on account of such Claim property of a value, as of the Effective Date, that is not less

than the amount such holder would receive or retain if the Debtors were liquidated on the

Effective Date under chapter 7 of the Bankruptcy Code. For this reason, the Debtors have

demonstrated by a preponderance of the evidence that the Plan satisfies section 1129(a)(7).

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

The requirements of Bankruptcy Code section 1129(a)(8) are satisfied with respect to Classes 1B


15

and 2, and 3, which have accepted the Plan. The Plan is fair and equitable with respect to

Classes 1B, 2, and 3. The rejecting Classes consist of Class 4 – Prepetition CBLIC Claims and

Class 5 – Interests. Class 4 – Prepetition CBLIC Claims voted to reject the Plan. Class 5 –

Interests will receive no Distributions and retain no property under the Plan and is thus deemed

to have rejected the Plan. Because the requirements of section 1129(a)(8) are not satisfied with

respect to Class 4 and Class 5, the Debtors have requested that the Bankruptcy Court confirm the

Plan under section 1129(b) as to these Classes. The Plan is fair and equitable with respect to the

Class 4 Claims and Class 5 Interests because no Class junior to these Classes under the Plan will

receive or retain any property under the Plan on account of such junior interest. The Plan does

not discriminate unfairly with respect to holders of Claims in Class 4 or Interests in Class 5.

EE. Treatment of Administrative Expense and Priority Claims – 11 U.S.C.

§ 1129(a)(9). The Plan provides for the treatment of Allowed DIP Financing Claims, Allowed

Administrative Expense Claims, Allowed Professional Fee Claims, Allowed Priority Tax

Claims, Allowed Non-Tax Priority Claims pursuant to Bankruptcy Code section 507(a), in

accordance with Bankruptcy Code section 1129(a)(9), except to the extent that the holder of a

particular Claim has agreed in writing to a different and less favorable treatment.

FF. Acceptance by Impaired Class – 11 U.S.C. § 1129(a)(10). As required by

Bankruptcy Code section 1129(a)(10), and as demonstrated by the Voting Certification, three

impaired Classes of Claims have accepted the Plan (Class 1B – Prepetition BP Secured Claim,

Class 2 – General Unsecured Claims, and Class 3 – BP Deficiency and BP Subordinated Claim

have accepted the Plan), as determined without including any acceptance of the Plan by an

insider.


16

GG. Feasibility – 11 U.S.C. § 1129(a)(11). The Debtors have established that the Plan

is feasible. On and after the Effective Date, the Liquidation Trust Assets will be liquidated or

converted into Cash and the proceeds distributed to Creditors in accordance with the Plan. The

Plan provides for various Distributions to be made by the Liquidation Trustee to Creditors. As

required by Bankruptcy Code section 1129(a)(11), confirmation of the Plan is not likely to be

followed by the liquidation or the need for further financial reorganization of the Debtors.

HH. Payment of Fees – 11 U.S.C. § 1129(a)(12). As required by Bankruptcy Code

section 1129(a)(12), all fees payable pursuant to section 1930 of title 28 of the United States

Code, as determined by the Bankruptcy Court on the Confirmation Date, shall be paid when due

and payable.

II. Retiree Benefits, Domestic Support Obligations, Individuals, and Certain

Transfers – 11 U.S.C. § 1129(a)(13)–(16). Sections 1129(a)(13), (14), (15), and (16) are

inapplicable to the Bankruptcy Cases.

JJ. Fair and Equitable; No Unfair Discrimination – 11 U.S.C. § 1129(b). Pursuant to

Bankruptcy Code section 1129(b), as to any impaired Class of unsecured claims or equity

interests that rejects or does not vote on a plan, such plan must be “fair and equitable” with

respect to each such Class. Classes 1B, 2, and 3 are impaired under the Plan, but have voted to

accept the Plan. Class 4 initially voted to reject the Second Amended Plan, but by virtue of the

modifications embodied in the Plan filed on June 12, 2020 [Docket No. 768], is deemed to have

(i) voted to accept the plan and (ii) not opted out of the Third Party Release. Despite the deemed

rejection of the Plan by Class 5, the Debtors have satisfied the “cramdown” requirements under

Bankruptcy Code section 1129(b) with respect to those Classes.


17

KK. Only One Plan – 11 U.S.C. § 1129(c). Other than the Plan (including previous

versions thereof), the Plan is the only chapter 11 plan for the Debtors pending before the

Bankruptcy Court or any other court. No other plan has been filed in these Bankruptcy Cases.

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

LL. Principal Purpose – 11 U.S.C. § 1129(d). The primary purpose of the Plan is not

the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act of

1933, as amended (15 U.S.C. § 77e). No party in interest that is a governmental unit, or any

other entity, has requested that the Bankruptcy Court decline to confirm the Plan on the grounds

that the principal purpose of the Plan is the avoidance of taxes or the avoidance of the application

of section 5 of the Securities Act of 1933.

MM. Conditions Precedent. Upon entry of the Confirmation Order and occurrence of

the Effective Date, all conditions precedent set forth in Article 7 of the Plan will be satisfied or

be duly waived in whole or in part pursuant to Article 7 of the Plan.

DECREES

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. Confirmation. The Plan, annexed hereto as Exhibit A, is confirmable based

upon, inter alia, all of the foregoing Findings of Fact and Conclusions of Law, and is approved

and confirmed under Bankruptcy Code sections 1129(a) and (b); provided, however, that the

Effective Date shall not occur unless and until the Debtors and the Committee resolve the PUC

Claims (as defined and described in the Disclosure Statement) in a way that is consistent with the

Approved Budget filed on May 28, 2020 [Docket No. 729]. The terms of the Plan and all

Exhibits thereto, each, as may be modified, are incorporated by reference into and are an integral

part of the Plan and this order (the “Confirmation Order”).


18

2. Objection. All parties have had a full and fair opportunity to object to

confirmation of the Plan and to litigate all issues raised in the Objection, or which might have

been raised, and the Objection has been fully considered by the Court and, to the extent not

previously resolved or withdrawn, is overruled for the reasons stated on the record at the

Confirmation Hearing. The record of the Confirmation Hearing is closed.

3. Binding Effect. Pursuant to Bankruptcy Code section 1141(a), except as provided

in section 1141(d)(3), from and after the Confirmation Date, the Plan shall be binding upon the

Debtors, all holders of Claims against, and Interests in, and any other party in interest in the

Bankruptcy Cases and their respective successors and assigns, regardless of whether the Claims

or Interests of such holders or obligations of any party in interest have accepted the Plan or filed

a proof of claim in the Bankruptcy Cases. The terms and provisions of the Plan and this

Confirmation Order shall survive and remain effective after entry of any order that may be

entered converting the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, and

the terms and provisions of the Plan shall continue to be effective in this or any superseding case

under the Bankruptcy Code.

4. Modifications Binding. In accordance with Bankruptcy Code section 1127 and

Bankruptcy Rule 3019, the Plan, as modified and amended by this Confirmation Order, and all of

its provisions and Exhibits, shall be binding on the Debtors, any entity acquiring or receiving

property or a distribution under the Plan, and any holder of a Claim against or Interest in the

Debtor, including all governmental entities, whether or not the holder of such Claim or Interest is

impaired under the Plan or whether or not the holder of such Claim or Interest has accepted the

Plan.


19

5. The modifications to the Plan, as set forth in the Plan attached hereto as Exhibit

A, comply with Bankruptcy Code section 1127 and Bankruptcy Rule 3019, are non-material

modifications, and are hereby approved and incorporated into the Plan.

6. Solicitation and Notice. Notice of the Confirmation Hearing complied with the

terms of the Disclosure Statement Order, was appropriate and satisfactory based on the

circumstances of the Bankruptcy Cases, and was in compliance with the provisions of the

Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. The solicitation of votes on the

Plan complied with the solicitation procedures in the Disclosure Statement Order, was

appropriate and satisfactory based upon the circumstances of the Bankruptcy Cases, and was in

compliance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Local

Rules.

7. Substantive Consolidation. Substantive Consolidation of the Debtors with respect

to the treatment of all Claims and Interests pursuant to Section 5.2 of the Plan is approved. On

the Effective Date, (a) all Assets and liabilities of the Debtors will, solely for Distribution

purposes, be merged or treated as though they were merged; (b) all guarantees of the Debtors of

the obligations of any other Debtor and any joint or several liability of any of the Debtors shall

be eliminated; (c) each and every Claim or Interest against any Debtor shall be deemed a single

Claim against, and a single obligation of, the Debtors and all Claims filed against more than one

Debtor for the same liability shall be deemed one Claim against any obligation of the Debtors;

and (d) all transfers, disbursements, and Distributions on account of Claims made by or on behalf

of any of the Debtors’ Estates hereunder will be deemed to be made by or on behalf of all of the

Debtors’ Estates. Holders of Allowed Claims entitled to Distributions under the Plan shall be


20

entitled to their share of Assets available for Distribution to such Claim without regard to which

Debtor was originally liable for such Claim.

8. Plan Implementation Authorization. The Debtors or the Liquidation Trustee, as

applicable, shall be authorized and empowered to execute, deliver, file, or record such contracts,

instruments, releases, and other agreements or documents and take such actions as are necessary

to consummate the Plan and perform their duties thereunder. All actions contemplated by the

Plan are authorized and approved in all respects (subject to the provisions of the Plan and the

Confirmation Order). The Liquidation Trustee is hereby authorized to make Distributions and

other payments in accordance with the Plan and the Liquidation Trust Agreement.

9. Appointment of Liquidation Trustee. As of the Effective Date, Wilmington

Savings Fund Society, FSB shall be appointed as the Liquidation Trustee. The Liquidation

Trustee shall be deemed the exclusive representative of the Estates and shall have all powers,

authority, and responsibilities specified in the Plan, including, without limitation, the powers of a

trustee under Bankruptcy Code sections 704 and 1106 and, as set forth in Section 5.6(b) of the

Plan, shall be authorized to use commercially reasonable efforts to obtain the return of the

Prepetition Collateral to BP, including directing any entity holding Prepetition Collateral to

return such Prepetition Collateral directly to BP if the Liquidation Trustee deems it appropriate

in its reasonable business judgment.

10. Creation of Liquidation Trust. On the Effective Date, the Liquidation Trust shall

be formed pursuant to the Plan and established and become effective in accordance with the

Liquidation Trust Agreement to liquidate the Liquidation Trust Assets.

11. Transfer of Assets to the Liquidation Trustee. On the Effective Date, the

Liquidation Trust Assets shall be transferred to the Liquidation Trustee, free and clear of all


21

Claims, liens, Encumbrances and interests of any Entity except for the liens and security interests

of the Secured Creditors as set forth in the Plan.

12. Administration of the Liquidation Trust. The Plan will be administered by the

Liquidation Trustee and all actions taken under the Plan in the name of the Debtors shall be

taken through the Liquidation Trustee; provided, however, that the Liquidation Trust shall

administer the Liquidation Trust Assets contemplated under the Plan pursuant to the Liquidation

Trust Agreement.

13. The Plan, the Liquidation Trust Agreement, all other agreements provided for

under the Plan, and all actions, settlements, transactions, documents, instruments and agreements

referred to therein, contemplated thereunder or executed and delivered in connection therewith

(including the issuance of the General Unsecured Creditor Interests), and any amendments or

modifications thereto in substantial conformity therewith are hereby approved, and the Debtors

and the Liquidation Trustee are authorized and directed to enter into and to perform such

agreements according to their terms.

14. The Liquidation Trustee may execute and deliver all documents, and take all

actions necessary, to wind down the business of Briarcliff Property Group, LLC, including the

sale of its real property located at 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510, as

deemed appropriate by the Liquidation Trustee, and shall have the power to act as the managing

member of Briarcliff Property Group, LLC.

15. Releases, Exculpations, and Injunctions. The injunction, release, and exculpation

provisions as set forth in Article 8 of the Plan are consistent with Bankruptcy Code section

1123(b) and are hereby approved and confirmed in all respects and shall be effective as provided

in the Plan. On the Effective Date, the provisions of Article 8 of the Plan shall be valid, binding


22

and effective in all respects, and are hereby approved as integral parts of the Plan as fair,

equitable, reasonable and in the best interest of the Debtors, their Estates and Creditors, and other

parties in interest in the Bankruptcy Cases, without the requirement of any further action.

(a) Injunctions. Pursuant to Section 8.1 of the Plan, all holders of Claims or Interests

shall be enjoined from commencing or continuing any judicial or administrative

proceeding or employing any process against any of the Debtors or the Estates

with the intent or effect of interfering with the consummation or implementation

of the Plan or the transfers, payments or Distributions to be made under the Plan.

Further, except as otherwise specifically provided for by the Plan, on and after the

Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment,

collection, or recovery by any manner or means of any judgment, award, decree,

or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any

kind; (iii) the commencement or continuation of any action, employment of

process or act to collect, offset, or recover any Claim or Cause of Action satisfied,

released, or enjoined under the Plan; and/or (iv) the assertion of any right of

setoff, counterclaim, exculpation, or subrogation of any kind, in each case against

the Debtors or the Estates to the fullest extent authorized or provided by the

Bankruptcy Code.

(b) Exculpations. Pursuant to Section 8.4 of the Plan, to the extent permitted by

Bankruptcy Code section 1125(e), the Debtors, their equity holders, officers,

directors, employees and Professionals (including the professional firms and

individuals within such firms), and the Creditors’ Committee and its members

(acting in such capacity), their respective officers, directors, employees and

Professionals (including professional firms and individuals within such firms)

shall neither have nor incur any liability to any Person for any act taken or

omitted to be taken in connection with or related to the formulation, preparation,

dissemination, implementation, administration, funding, confirmation, or

consummation of the Plan, the Disclosure Statement, or any contract, instrument,

release or other agreement or document created or entered into in connection with

the Plan, or any act taken or omitted to be taken during the Bankruptcy Cases,

except for acts or omissions as a result of willful misconduct or gross negligence

as determined by a Final Order of a court of competent jurisdiction, and in all

respects shall be entitled to rely reasonably upon the advice of counsel with

respect to their duties and responsibilities under the Plan. From and after the

Effective Date, a copy of the Confirmation Order and the Plan shall constitute,

and may be submitted as, a complete defense to any Claim or liability released

under the Plan. Further, Pursuant to Section 8.5 of the Plan, the Liquidation

Trustee and its employees, attorneys, accountants, financial advisors,

representatives, and agents, each solely in such capacity, shall not have or incur

any liability to any Person or Entity for any act or omission in connection with, or

arising out of, the Plan or the property to be distributed under the Plan; except for


23

acts or omissions as a result of willful misconduct or gross negligence as

determined by a Final Order of a court of competent jurisdiction.

(c) CBLIC Release in Favor of BP. Pursuant to Section 4.2 of the Plan, effective as

of the Effective Date, CBLIC shall be deemed to provide a full release to BP and

its respective property from any and all Causes of Action and any other debts,

obligations, rights, suits, damages, actions, derivative Claims, remedies, and

liabilities whatsoever, whether known or unknown, foreseen or unforeseen,

existing as of the Effective Date, in law, at equity, or otherwise, whether for tort,

contract, violations of federal or state securities laws, or otherwise, based in

whole or in part upon any act or omission, transaction, or other occurrence or

circumstance existing or taking place prior to or on the Effective Date arising

from or related in any way to the Prepetition CBLIC Claim, the Prepetition BP

Secured Claim, the BP Deficiency Claim, the BP Subordinated Claim, the

Debtors, the Junior Loan Agreement, the CBLIC Intercreditor Agreement, or any

matters arising under or in connection with the same, including those that CBLIC

would have been legally entitled to assert or that any holder of a Claim against or

Interest in CBLIC or any other Entity could have been legally entitled to assert

derivatively or on behalf of CBLIC.

(d) BP Release in Favor of CBLIC. Pursuant to Section 4.5 of the Plan, effective as

of the Effective Date, BP shall be deemed to provide a full release to CBLIC and

its respective property from any and all Causes of Action and any other debts,

obligations, rights, suits, damages, actions, derivative Claims, remedies, and

liabilities whatsoever, whether known or unknown, foreseen or unforeseen,

existing as of the Effective Date, in law, at equity, or otherwise, whether for tort,

contract, violations of federal or state securities laws, or otherwise, based in

whole or in part upon any act or omission, transaction, or other occurrence or

circumstance existing or taking place prior to or on the Effective Date arising

from or related in any way to the Prepetition CBLIC Claim, the Prepetition BP

Secured Claim, the BP Deficiency Claim, the BP Subordinated Claim, the

Debtors, the Junior Loan Agreement, the CBLIC Intercreditor Agreement, or any

matters arising under or in connection with the same, including those that BP

would have been legally entitled to assert or that any holder of a Claim against or

Interest in BP or any other Entity could have been legally entitled to assert

derivatively or on behalf of BP.

(e) Debtor Release. Pursuant to Section 8.6 of the Plan, effective as of the Effective

Date, without in any manner limiting or altering any releases granted to the

Postpetition Secured Party and Senior Lien Secured Party under the Final DIP

Order, each Debtor on behalf of itself and its Estate, each of their respective

affiliates, and each of their respective former, current, or future officers,

employees, directors, agents, representatives, owners, members, partners,

financial advisors, legal advisors, shareholders, managers, consultants,

accountants, attorneys, affiliates, and predecessors in interest, for good and

valuable consideration provided by each of the Released Parties and CBLIC, shall

be deemed to provide a full release to each of the Released Parties and CBLIC


24

(and each such Released Party and CBLIC shall be deemed released by each

Debtor and its Estate) and their respective property from any and all Causes of

Action and any other debts, obligations, rights, suits, damages, actions, derivative

Claims, remedies, and liabilities whatsoever, whether known or unknown,

foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or

otherwise, whether for tort, contract, violations of federal or state securities laws,

or otherwise, based in whole or in part upon any act or omission, transaction, or

other occurrence or circumstance existing or taking place prior to or on the

Effective Date arising from or related in any way to the Debtors, the Plan,

Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases,

the Postpetition Supply Facility, the Postpetition Transaction Documents, and the

Senior Lien Transaction Documents (as defined in the Final DIP Order) or any

matters arising under or in connection with the same, including those that the

Debtors would have been legally entitled to assert or that any holder of a Claim

against or Interest in the Debtors, or any other Entity could have been legally

entitled to assert derivatively or on behalf of the Debtors or their Estates;

provided, however, that the foregoing Debtor Release shall not operate to waive

or release any Claims or Causes of Action of the Debtors or their Estates for

actual fraud or fraud grounded in deliberate recklessness. For the avoidance of

doubt, any Claims in respect of Avoidance Actions against the Released Parties

and CBLIC shall be released.

(f) Third Party Release. Pursuant to Section 8.7 of the Plan, effective as of the

Effective Date, the Releasing Parties shall be deemed to provide a full release to

the Released Parties and their respective property from any and all Causes of

Action and any other debts, obligations, rights, suits, damages, actions, derivative

Claims, remedies, and liabilities whatsoever, whether known or unknown,

foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or

otherwise, whether for tort, contract, violations of federal or state securities laws,

or otherwise, based in whole or in part upon any act or omission, transaction, or

other occurrence or circumstance existing or taking place prior to or on the

Effective Date arising from or related in any way to the Debtors, the Plan,

Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases,

the Postpetition Supply Facility, the Postpetition Transaction Documents, and the

Senior Lien Transaction Documents (as defined in the Final DIP Order) or any

matters arising under or in connection with the same, including those that the

Debtors would have been legally entitled to assert or that any holder of a Claim

against or Interest in the Debtors or any other Entity could have been legally

entitled to assert derivatively or on behalf of the Debtors or their Estates. Nothing

in the foregoing shall result in any individual who, on or after the Petition Date, is

or was a director, officer, or employee, waiving (i) any indemnification Claims

against the Debtors or any of their insurance carriers or any rights as beneficiaries

of any insurance policies, including (without limitation) any D&O Policies, (ii)

any Claims asserted in timely-filed proofs of claim, or (iii) claims for wages,

claims for benefits, and/or claims arising in connection with the KEIP/KERP.

Further, the United States and its departments, agencies, and instrumentalities


25

shall be deemed to have opted out of the Third Party Release set forth in Section

8.7 of the Plan.

16. Rejection of Executory Contracts and Unexpired Leases. To the extent not

previously rejected, except with respect to the Debtors’ Insurance Policies, on the Effective Date,

all executory contracts and unexpired leases of the Debtors entered into prior to the Petition

Date, that have not (i) been previously assumed or rejected pursuant to an order of the

Bankruptcy Court or applicable provisions of the Bankruptcy Code, (ii) expired or otherwise

terminated pursuant to their terms, or (iii) been the subject of a separate assumption motion filed

by one of the Debtors, shall be deemed rejected by the Debtors pursuant to the provisions of

Bankruptcy Code section 365.

17. Dissolution of the Debtors. On the Effective Date, without the necessity for any

other or further action to be taken by or on behalf of the Debtors, and upon the transfer of the

Liquidation Trust Assets to the Liquidation Trust and the Prepetition Collateral to BP in

accordance with Section 5.14 of the Plan, the members of the board of directors or managers, as

the case may be, and the respective officers of each of the Debtors shall be deemed to have been

removed, and each such Debtors shall be deemed dissolved for all purposes unless the

Liquidation Trustee determines that dissolution can have any adverse impact on the Liquidation

Trust Assets, the Prepetition Collateral, or the Postpetition Collateral; provided, however, that

neither the Debtors nor any party released pursuant to Article 8 of the Plan shall be responsible

for any liabilities that may arise as a result of non-dissolution of the Debtors.

18. Dissolution of the Creditors’ Committee. In accordance with Section 5.15 of the

Plan, on the Effective Date, the Creditors’ Committee shall be deemed to be dissolved and the

members of the Creditors’ Committee shall be released and discharged from all further authority,

duties, responsibilities, and obligations arising from or related to the Bankruptcy Cases and


26

Professionals retained by the Committee shall be released and discharged from all further

authority, duties, responsibilities, and obligations relating to the Debtors and the Bankruptcy

Cases; provided, however, that the foregoing shall not apply to any matters concerning (a) any

Professional Fee Claims held or asserted by any Professional retained by the Committee or

reimbursement of any reasonable and documented expenses of the Committee’s members

incurred in their capacity as such, (b) any appeal from the Confirmation Order, or (c) the

withdrawal of the Standing Motion pursuant to Section 5.29 of the Plan.

19. Payment of DIP Financing Claims. Pursuant to and in accordance with Section

2.2 of the Plan, the Liquidation Trustee shall pay all Allowed DIP Financing Claims in full, in

Cash on the Effective Date or as soon thereafter as reasonably practicable.

20. Payment of Administrative Expense Claims. Pursuant to and in accordance with

Section 2.3 of the Plan, the Liquidation Trustee shall pay all Allowed Administrative Expense

Claims in full, in Cash in such amounts as may be Allowed by the Bankruptcy Court (a) as soon

as practicable following the later of the Effective Date or the date upon which the Court enters a

Final Order allowing any such Administrative Expense Claim, (b) as otherwise provided in the

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

such Administrative Expense Claim.

21. Payment of Professional Fee Claims. Pursuant to and in accordance with Section

2.4 of the Plan, the Liquidation Trustee shall pay all Allowed Professional Fee Claims in full, in

Cash in such amounts as may be Allowed by the Bankruptcy Court (a) as soon as practicable

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

allowing any such Professional Fee Claim, (b) as otherwise provided in the Bankruptcy Code or


27

approved by the Bankruptcy Court, or (c) as may be agreed upon between the holder of any such

Professional Fee Claim and the Debtors.

22. Intercompany Claims. Pursuant to and in accordance with Section 2.7 of the Plan,

holders of Intercompany Claims will not receive any Distribution of property under the Plan on

account of their Intercompany Claims and, on the Effective Date, the Intercompany Claims will be

cancelled.

23. Payment of Priority Tax Claims. Pursuant to and in accordance with Section 2.5

of the Plan, unless otherwise agreed to by the parties, the Liquidation Trustee shall pay each

holder of an Allowed Priority Tax Claim Cash of a total value, as of the Effective Date, equal to

the Allowed amount of such Priority Tax Claim either (a) in full on the Effective Date, or (b) in

regular installment payments over a period ending not later than five (5) years after the Petition

Date, which treatment is not less favorable than that provided to the General Unsecured

Creditors, in accordance with Bankruptcy Code section 1129(a)(9)(C); provided, however, that

all Allowed Priority Tax Claims that are not due and payable on or before the Effective Date

shall be paid in the ordinary course of business in accordance with the terms thereof.

24. Payment of Non-Tax Priority Claims. Pursuant to and in accordance with Section

2.6 of the Plan, the Liquidation Trustee shall pay each holder of an Allowed Non-Tax Priority

Claim Cash on the Effective Date of a total value, as of the Effective Date or as otherwise

provided in the Bankruptcy Code or approved by the Bankruptcy Court, equal to the full

Allowed amount of such Non-Tax Priority Claim, except to the extent that a holder of such claim

agrees to different treatment; provided, however, that all Allowed Non-Tax Priority Claims that

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

business in accordance with the terms thereof.


28

25. Payment of Statutory Fees. Pursuant to and in accordance with Section 2.8 of the

Plan, on the Effective Date and thereafter as may be required, the Liquidation Trustee shall pay

all fees for which the Debtors are obligated pursuant to 28 U.S.C. § 1930(a)(6), together with

interest, if any, pursuant to 31 U.S.C. § 3717, when due and payable until the entry of a final

decree closing the Bankruptcy Cases, a Final Order converting the Bankruptcy Cases to cases

under chapter 7 of the Bankruptcy Code, or a Final Order dismissing the Bankruptcy Cases.

26. Final Administrative Expense Claims Bar Date. As provided in Section 5.20 of

the Plan, requests for payment of Administrative Expense Claims that were not required to be

filed and served by the First Administrative Expense Claim Bar Date other than (a) an

Administrative Expense Claim that has become an Allowed Administrative Expense Claim on or

before the Effective Date, (b) an Administrative Expense Claim on account of fees and expenses

incurred on or after the Petition Date by ordinary course professionals retained by the Debtors

pursuant to an order of the Bankruptcy Court, or (c) an Administrative Expense Claim arising out

of the employment by the Debtors of an individual in the ordinary course of business from and

after the Petition Date, but only to the extent that such Administrative Expense Claim is solely

for outstanding wages, commissions, accrued benefits, or reimbursement of business expenses,

must be filed and served on or before 5:00 p.m. (prevailing Eastern Time) on or before the first

Business Day after the fourteenth (14th) day after the date of the entry of this Confirmation

Order. Objections, if any, to a timely request for payment of an Administrative Expense Claim

must be filed and served on the Liquidation Trustee and the requesting party no later than ninety

(90) days after the Effective Date.

27. Deadline for Filing Applications for Professional Fee Claims. As provided in

Section 5.21 of the Plan, all parties seeking payment of Professional Fee Claims must file with


29

the Bankruptcy Court a final application and/or an application for payment of reasonable fees

and expenses under Bankruptcy Code section 503(b), as applicable, on or before the first

Business Day after the thirtieth (30th) day after the Effective Date (the “Fee Application

Deadline”). Any Professional failing to file and serve such final application or 503(b) motion on

or before the Fee Application Deadline shall be forever barred from asserting any such right to

payment against the Debtors or the Estates. Objections to such Professional Fee Claims, if any,

must be filed and served no later than fifty (50) days after the Effective Date.

28. Exemption from Certain Taxes and Fees. Pursuant to and to the extent set forth in

Bankruptcy Code section 1146(a), any issuance, transfer, or exchange of a security, or the

making or delivery of an instrument of transfer of property, pursuant to or in connection with the

Plan shall not be subject to any Stamp or Similar Tax or governmental assessment in the United

States or by any other Governmental Unit. Such exemption specifically applies, without

limitation, to all actions, agreements and documents necessary to evidence and implement the

provisions of, transactions contemplated by, and the distributions to be made under the Plan.

Consistent with the foregoing, any appropriate federal, state or local (domestic or foreign)

governmental officials or agents shall forgo the collection of any such Stamp or Similar Tax or

governmental assessment and accept for filing and recordation instruments or other documents

evidencing such action or event without the payment of any such Stamp or Similar Tax or

governmental assessment.

29. Incorporation by Reference. The Plan is incorporated in full herein by reference.

Failure specifically to include or refer to particular sections or provisions of the Plan or any

related agreement in this Confirmation Order shall not diminish the effectiveness of such


30

sections or provisions nor constitute a waiver thereof, it being the intent of the Bankruptcy Court

that the Plan be confirmed and such related agreements be approved in their entirety.

30. Inconsistencies. To the extent that this Confirmation Order and/or Plan is

inconsistent with the Disclosure Statement, Liquidation Trust Agreement, or any other

agreement entered into between the Debtors and any third party, the Plan controls the Disclosure

Statement, Liquidation Trust Agreement, and other such agreements, and the Confirmation Order

controls the Plan.

31. Non-Severability. The provisions of the Plan and the Confirmation Order,

including the findings of fact and conclusions of law, are non-severable and mutually dependent.

32. Reference. The failure specifically to include or reference any particular

provision of the Plan or any related document or agreement in this Confirmation Order shall not

diminish or impair the efficacy of such provision or related document or agreement, it being the

intent of the Bankruptcy Court that the Plan is confirmed in its entirety, the Plan and such related

documents or agreements are approved in their entirety, and the Plan is incorporated herein by

reference.

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

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

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

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

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

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


31

34. Substantial Consummation. The substantial consummation of the Plan, within the

meaning of Bankruptcy Code sections 1101 and 1127(b), is deemed to occur on the Effective

Date.

35. Notice of Entry of Confirmation Order. No later than five (5) business days

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

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

holders of Claims and Interests, the U.S. Trustee, counterparties to any executory contracts or

unexpired leases that were not rejected as of the Voting Record Date, and the parties named on

the Master Service List (as defined in the Order Establishing Certain Notice, Case Management,

and Administrative Procedures and (B) Granting Related Relief [Docket No. 96]) maintained in

the Bankruptcy Cases, by causing notice substantially in the form attached hereto as Exhibit B to

be delivered to such parties by first-class mail, postage prepaid.

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

the Effective Date, the Debtors shall file notice of the Effective Date with the Court and serve a

copy of such notice on the parties named on the Master Service List.

37. Enforceable Upon Effective Date. Pursuant to Bankruptcy Code section 1142(a)

and the provisions of this Confirmation Order, upon the occurrence of the Effective Date, the

Plan shall apply and be enforceable notwithstanding any otherwise applicable nonbankruptcy

law.

38. Continuation of Injunction and Stay. Unless otherwise provided herein, all

injunctions or stays provided for in the Bankruptcy Cases pursuant to Bankruptcy Code sections

105 and 362(a), or otherwise, and in existence on the Confirmation Date, shall remain in full

force and effect until the Bankruptcy Cases are closed, and at such time shall be dissolved and of


32

no further force or effect, subject to the provisions of the Plan and the Confirmation Order, or a

combination thereof.

39. Retention of Jurisdiction. Notwithstanding the entry of this Confirmation Order

or the occurrence of the Effective Date, pursuant to Bankruptcy Code sections 105 and 1142, the

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

the Bankruptcy Cases to the fullest extent as is legally permissible.

Dated: _______________, 2020

White Plains, New York

___________________________________

THE HONORABLE ROBERT D. DRAIN

UNITED STATES BANKRUPTCY JUDGE


Exhibit A

(Confirmed Plan Will Be Attached Hereto)


Exhibit B

Notice of Entry of Confirmation Order



Timothy W. Walsh

Darren Azman

Ravi Vohra

340 Madison Avenue

New York, New York 10173

Telephone: (212) 547-5615

Facsimile: (212) 547-5444





)

In re: ) Chapter 11

)


)

Case No. 19-23802 (RDD)

Debtors.

)

)


NOTICE OF ENTRY OF: (I) ORDER CONFIRMING

MODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF

LIQUIDATION OF AGERA ENERGY LLC, ET AL. DATED JUNE 12, 2020;

AND (II) DEADLINE FOR FILING ADMINISTRATIVE EXPENSE CLAIMS,

PROFESSIONAL FEE CLAIMS, AND CLAIMS ARISING FROM REJECTION OF

EXECUTORY CONTRACTS OR UNEXPIRED LEASES

PLEASE TAKE NOTICE that on June __, 2020, the United States Bankruptcy Court

for the Southern District of New York entered an order (the “Confirmation Order”) [Docket. No.

___], confirming the Modified Second Amended Joint Chapter 11 Plan of Liquidation of Agera

Energy LLC, et al., dated June 12, 2020 (the “Plan”)2 [Docket No. 768].




headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510. 2 Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Plan.


2

PLEASE TAKE FURTHER NOTICE that the Confirmation Order and the Plan are

each on file with the Clerk of the Bankruptcy Court, and may be examined by interested parties

at the Office of the Clerk of the Bankruptcy Court, United States Bankruptcy Court, Southern

District of New York, One Bowling Green, New York, New York 10004, during regular

business hours. Copies of the Plan and Confirmation Order may also be obtained free of charge

by visiting the website of Stretto, the Debtors’ agent supervising the solicitation, tabulation, and

balloting process at http://cases.stretto.com/agera. You may also obtain copies of any pleadings

by visiting the Court’s website at http://www.nysb.uscourts.gov in accordance with the

procedures and fees set forth therein.

PLEASE TAKE FURTHER NOTICE that pursuant to Section 5.20 of the Plan,

requests for payment of Administrative Expense Claims that were not required to be filed and

served by the First Administrative Expense Claim Bar Date, other than:

(a) an Administrative Expense Claim that has become an Allowed Administrative

Expense Claim on or before the Effective Date;

(b) an Administrative Expense Claim on account of fees and expenses incurred on or

after the Petition Date by ordinary course professionals retained by the Debtors

pursuant to an order of the Bankruptcy Court; or

(c) an Administrative Expense Claim arising out of the employment by the Debtors

of an individual in the ordinary course of business from and after the Petition

Date, but only to the extent that such Administrative Expense Claim is solely for

outstanding wages, commissions, accrued benefits, or reimbursement of business

expenses;


Business Day after the fourteenth (14th) day after the Confirmation Date (the “Final

Administrative Expense Claims Bar Date”).

PLEASE TAKE FURTHER NOTICE that pursuant to Section 5.20 of the Plan, any

Person asserting an Administrative Expense Claim not subject to the First Administrative


3

Expense Claim Bar Date that fails to file and serve an application or motion seeking approval of

the Administrative Expense Claim on or before the Final Administrative Expense Claims Bar

Date shall be forever barred from asserting any such right to payment as against the Debtors, the

Estates, and the Liquidation Trust.

PLEASE TAKE FURTHER NOTICE that pursuant to Section 5.21 of the Plan, all

parties seeking payment of Professional Fee Claims must file with the Bankruptcy Court a final

application and/or an application for payment of reasonable fees and expenses under Bankruptcy

Code section 503(b), as applicable, on or before the first Business Day after the thirtieth (30th)

day after the Effective Date (the “Fee Application Deadline”). Any Professional failing to file

and serve such final application or 503(b) motion on or before the Fee Application Deadline

shall be forever barred from asserting any such right to payment against the Debtors or the

Estates.


proofs of Claim arising out of the rejection of an executory contract or an unexpired lease

pursuant to Section 6.1 of the Plan must be filed no later than thirty (30) days after the Effective

Date. The failure to timely file a proof of Claim shall be deemed a waiver of any Claim in

connection with the rejection of such contract or lease. Proofs of claim must be filed either

electronically through https://case.stretto.com/agera/fileaclaim or by mailing the original proof of

Claim either by U.S. Postal Service mail or overnight delivery to: (1) the United States

Bankruptcy Court, Southern District of New York; (2) Agera Claims Processing Center, c/o

Stretto, 410 Exchange, Ste. 100, Irvine, CA 92602; or (3) by delivering the original proof of

claim by hand to the United States Bankruptcy Court, Southern District of New York Southern

District of New York, 300 Quarropas Street, Room 248, White Plains, NY 10601.


4

Dated: June __, 2020 Respectfully submitted,

New York, NY


/s/

Timothy W. Walsh

Darren Azman

Ravi Vohra

340 Madison Avenue

New York, NY 10173

Telephone: (212) 547-5615

Facsimile: (212) 547-5444

Email: [email protected]

[email protected]




Exhibit 2

Redline Comparison of Amended Proposed Order Against Proposed Order


UNITED STATES BANKRUPTCY COURTSOUTHERN DISTRICT OF NEW YORK

)In re: ) Chapter 11

)AGERA ENERGY LLC, et al.,1 )

)Case No. 19-23802 (RDD)

Debtors. ))


ORDER CONFIRMING MODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF

AGERA ENERGY LLC, ET AL. DATED JUNE 912, 2020

WHEREAS the above-captioned debtors and debtors in possession (collectively, the

“Debtors”), as “proponent[s] of the plan” within the meaning of section 1129 of title 11 of the

United States Code (the “Bankruptcy Code”) filed the Second Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al., dated May 9, 2020 [Docket No. 677] (such plan, as

transmitted to parties in interest, the “Second Amended Plan,” and as subsequently modified as

reflected in the Modified Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy

LLC, et al., dated June 9, 2020 [Docket No 757] and in the Modified Second Amended Joint

Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., dated June 12, 2020 [Docket No 768],

the “Plan”)2 and the Second Amended Disclosure Statement for Second Amended Joint Chapter 11

Plan of Liquidation of Agera Energy LLC, et al. [Docket No. 678] (the “Disclosure Statement”);

WHEREAS on May 9, 2020, the Bankruptcy Court entered an order (the “Disclosure

Statement Order”) [Docket No. 680], which, among other things, (i) approved the Disclosure

Statement under Bankruptcy Code section 1125 and Rule 3017 of the Federal Rules of Bankruptcy

1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988); Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.


Procedure (the “Bankruptcy Rules”), (ii) established June 12, 2020 as the date for the hearing to

consider confirmation of the Plan (the “Confirmation Hearing”), (iii) approved the form and

manner of notices, including the notice of the Confirmation Hearing (the “Confirmation Hearing

Notice”), (iv) approved the form of Ballots (as defined below) and Opt-Out Forms (as defined

below), and (v) approved the solicitation materials and solicitation procedures;

WHEREAS the Affidavit of Publication of the Notice of (A) Hearing to Confirm Plan of

Liquidation and (B) Date by Which to Submit Objections [Docket No. 689] (the “Publication

Affidavit”), sworn to on May 12, 2020, was filed evidencing publication of the Confirmation

Hearing Notice, which included notice of the deadline for filing objections to the Plan, in the New

York Times on May 12, 2020 in accordance with the Disclosure Statement Order;

WHEREAS the Confirmation Hearing Notice and (i) as to holders of Claims in

Class 1B – Prepetition BP Secured Claim, Class 2 – General Unsecured Claims, Class 3 – BP

Deficiency Claim and Allowed BP Subordinated Claim, and Class 4 – Allowed Prepetition CBLIC

Claims entitled to vote, the Disclosure Statement (with the Second Amended Plan annexed

thereto), the Disclosure Statement Order, and an appropriate form of ballot and return envelope

(such ballot and return envelope being referred to as a “Ballot”), (ii) as to holders of DIP Financing

Claims, Administrative Expense Claims, Professional Fee Claims, Priority Tax Claims, Non-Tax

Priority Claims, and Claims in Class 1A – Other Secured Claims and as to the U.S. Trustee, a

Notice of Opt-Out Form to Holders of Claims Deemed to Accept the Second Amended Joint

Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. (the “Deemed to Accept Opt-Out

Form”), (iii) as to holders of Interests in Class 5 – Interests, a Notice of Opt-Out Form to Holders

of Interests Deemed to Reject the Second Amended Joint Chapter 11 Plan of Liquidation of Agera

2 Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Plan, Disclosure Statement (as defined below), or Disclosure Statement Order (as defined below).


Energy LLC, et al. (the “Deemed to Reject Opt-Out Form” and, together with the Deemed to

Accept Opt-Out Form, the “Opt-Out Forms”), and (iv) as to counterparties to any executory

contracts or unexpired leases that were not rejected as of the Voting Record Date (as defined in the

Disclosure Statement Order), the Notice to Contract and Lease Counterparties (the

“Contract/Lease Notice”), were transmitted as set forth in the Affidavit of Service of Clarissa D.

Cu, sworn to on May 14, 2020 [Docket No. 697] (the “Solicitation Affidavit”), evidencing the

timely service of the Disclosure Statement (with the Second Amended Plan annexed thereto),

related solicitation materials, Opt-Out Forms, and Contract/Lease Notice, and such service is in

accordance with the Disclosure Statement Order and adequate as provided by Bankruptcy Rule

3017(d);

WHEREAS the Debtors filed, on June 2, 2020, the PlanNotice of Filing of Supplement to

the Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket

No. 736], which included the Liquidation Trust Agreement and a Liquidation Trustee engagement

letter [Docket No. 736], and on June 9, 2020, the [Notice of Filing of Amended Plan Supplement to

the Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al. [Docket

No. [•]752], which revised the Liquidation Trust Agreement;

WHEREAS Colorado Bankers Life Insurance Company (“CBLIC”) filed an objection to

confirmation of the Second Amended Plan [Docket No. 753] (the “Objection”); and the U.S.

Trustee, ISO New England, Todd Sandford, Mark Linzenbold, and Raima Jamal provided

comments to the Second Amended Plan, which have been incorporated in the Plan;

WHEREAS on June 109, 2020 the Debtors filed (i) the Debtors’ Memorandum of Law in

Support of Confirmation of the Modified Second Amended Joint Chapter 11 Plan of Liquidation of

Agera Energy LLC, et al. datedDated June 9, 2020 (the “Confirmation Brief”) and (ii) the


Declaration of Mark Linzenbold in Support of Plan Confirmation of the Modified Second


(the “Linzenbold Declaration”) [Docket No. 761];

WHEREAS on June 10, 2020, theStretto filed Amended Certification of Stretto Regarding

Tabulation of Votes in Connection with the Second Amended Joint Chapter 11 Plan of Liquidation

of Agera Energy LLC, et al. [Docket No. 760] (the “Voting Certification”) was filed, attesting and

certifying the method and results of the tabulation of votes on the Second Amended Plan;

WHEREAS the Confirmation Hearing was held on June 12, 2020, at which time the

Bankruptcy Court considered (a) confirmation of the Plan, (b) the establishment and

administration of the Liquidation Trust (as defined in the Plan) and (c) approval of the Plan’s

injunctive, release, and exculpation provisions, and the record was closed;

WHEREAS the Confirmation Hearing Notice was deemed good and sufficient notice of

the Confirmation Hearing;

NOW, THEREFORE, based on the Publication Affidavit, the Solicitation Affidavit, the

Confirmation Brief, the Linzenbold Declaration, and the Voting Certification; and upon the entire

record of the Bankruptcy Cases, including, without limitation, the record made at the Confirmation

Hearing; and after finding that due, sufficient, and adequate notice of the Confirmation Hearing

has been provided to holders of Claims, Interests and all other parties in interest herein; and after

due deliberation and good and sufficient cause appearing therefor,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

IT IS HEREBY FOUND AND DETERMINED THAT:

A. Findings of Fact and Conclusions of Law. The findings and conclusions set forth

herein, together with the findings of fact and conclusions of law set forth in the record of the

Confirmation Hearing, constitute the Bankruptcy Court’s findings of fact and conclusions of law


pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy

Rule 9014. To the extent any of the following findings of fact constitute conclusions of law, they

are adopted as such. To the extent any of the following conclusions of law constitute findings of

fact, they are adopted as such.

B. Exclusive Jurisdiction; Venue; Core Proceeding. The Bankruptcy Court has

jurisdiction over the Bankruptcy Cases pursuant to 28 U.S.C. §§ 157(a)–(b) and 1334(b). Venue is

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

to 28 U.S.C. § 157(b)(2)(L), and the Bankruptcy Court has exclusive jurisdiction to determine

whether the Plan complies with the applicable provisions of the Bankruptcy Code and should be

confirmed.

C. Judicial Notice. The Court takes judicial notice of the docket of the Bankruptcy

Cases maintained by the Clerk of the Court and/or its duly-appointed agent, including, without

limitation, all pleadings and other documents filed, all orders entered, and the evidence and

arguments made, proffered, or adduced at the hearings held before the Court during the pendency

of the Bankruptcy Cases, including, but not limited to, the hearing to consider the adequacy of the

Disclosure Statement and the Disclosure Statement Order entered in connection therewith.

D. Chapter 11 Petitions. On October 4, 2019, the Debtors commenced with this Court

voluntary cases under chapter 11 of the Bankruptcy Code. The Debtors are eligible debtors under

Bankruptcy Code section 109, and the Debtors are proper plan proponents under Bankruptcy Code

sections 1121(a) and (c). The Debtors are authorized to continue to operate their businesses and

manage their properties as debtors in possession pursuant to Bankruptcy Code sections 1107(a)

and 1108. No trustee or examiner has been appointed pursuant to Bankruptcy Code section 1104.


E. Burden of Proof. As the proponents of the Plan, the Debtors have the burden of

proving that the elements of Bankruptcy Code section 1129(a) and (b) have been met by a

preponderance of the evidence. The Debtors have met such burden by a preponderance of the

evidence.

F. Bankruptcy Rule 3016(a). In accordance with Bankruptcy Rule 3016(a), the Plan

is dated and identifies the Debtors as proponents of the Plan.

G. Transmittal and Mailing of Materials; Notice. The Confirmation Hearing Notice,

Disclosure Statement, Disclosure Statement Order, Second Amended Plan, Ballots, Opt-Out

Forms, and Contract/Lease Notice, which were transmitted and served as set forth in the

Solicitation Affidavit, have been transmitted, served, and published in compliance with the

Disclosure Statement Order, Bankruptcy Code, Bankruptcy Rules, Local Bankruptcy Rules for the

Southern District of New York (the “Local Rules”), and all other applicable laws, rules, and

regulations. Such transmittal, service, and publication were adequate and sufficient, and no other

or further notice is or shall be required.

H. Adequacy of Voting Procedures. The solicitation by the Debtors of votes to accept

or reject the Plan was proposed and conducted in good faith and complied with Bankruptcy Code

sections 1125 and 1126, Bankruptcy Rules 3017 and 3018, the Disclosure Statement Order, all

other applicable provisions of the Bankruptcy Code and Bankruptcy Rules, and all other

applicable laws, rules, and regulations.

I. Good Faith Solicitation. Based on the record before the Court in the Bankruptcy

Cases, the Debtors, their directors, officers, employees, members, agents, advisors, and

professionals have acted in “good faith” within the meaning of Bankruptcy Code section 1125(e)

in compliance with the applicable provisions of the Bankruptcy Code and Bankruptcy Rules in


connection with all their respective activities relating to the solicitation of acceptances or

rejections of the Second Amended Plan and their participation in the activities described in

Bankruptcy Code section 1125, and are entitled to the protections afforded by Bankruptcy Code

section 1125(e). Such solicitation, including with respect to the injunction, release (including the

third-party release provision), and exculpation provisions of the Plan, also satisfied the

requirements of due process.

J. Voting Results. Pursuant to the Voting Certification, Class 1B – Prepetition BP

Secured Claims, Class 2 – General Unsecured Claims, and Class 3 – BP Deficiency Claim and BP

Subordinated Claim have voted to accept the Plan. Class 4 – Prepetition CBLIC Claims initially

voted to reject the Second Amended Plan, but by virtue of the modifications embodied in the Plan

filed on June 12, 2020 [Docket No. 768], is now deemed to have (i) voted to accept the plan and (ii)

not opted out of the Third Party Release. Class 1A – Other Secured Claims will be unimpaired

under the Plan and is therefore deemed to have accepted the Plan pursuant to Bankruptcy Code

section 1126(f). Class 5 – Interests will receive no Distributions or property under the Plan and is

therefore deemed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g).

K. Classification of Claims. The classification scheme of Claims and Interests in the

Plan is reasonable and complies with the requirements of Bankruptcy Code sections 1122 and

1123. Claims or Interests in each particular Class are substantially similar to other Claims or

Interests contained in such Class.

L. Unclassified Claims. Pursuant to Bankruptcy Code section 1123(a)(1), DIP

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

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


Plan and shall instead be treated separately as unclassified Claims and fees on the terms set forth in

Article 2 of the Plan.

M. Treatment of Unimpaired Classes. Article 4 of the Plan specifies that Class 1A –

Other Secured Claims, is unimpaired under the Plan, thereby satisfying Bankruptcy Code section

1123(a)(2).

N. Treatment of Impaired Classes. As required by and in compliance with Bankruptcy

Code section 1123(a)(1) and (a)(3), the Plan identifies the Classes of Claims against or Interests in

the Debtors and specifies the treatment of each Class of Claims or Interests under the Plan.

Consistent with Bankruptcy Code section 1123(a)(4), the Plan provides the same treatment for

each Claim or Interest within a particular Class.

O. Implementation. As required by Bankruptcy Code section 1123(a)(5), the Plan

contemplates adequate means for its execution and implementation including, but not limited to:

(a) the substantive consolidation of the Debtors with respect to the treatment of all Claims and

Interests; (b) the establishment of the Liquidation Trust to, inter alia, distribute the Liquidation

Trust Assets; (c) the Distribution of the proceeds derived from the Estates’ Assets; (d) the

procedures governing the Allowed Claims and Distributions; and (e) the dissolution of the

Debtors.

P. No Issuance of Securities. The Plan is a liquidating Plan, and the Debtors will not

be issuing equity securities. Therefore, Bankruptcy Code section 1123(a)(6) is inapplicable in the

Bankruptcy Cases.

Q. Liquidation Trustee. In conjunction with Bankruptcy Code section 1123(a)(7), the

Notice of Filing of Amended Supplement to the Second Amended Joint Chapter 11 Plan of

Liquidation of Agera Energy LLC, et al. [Docket No. 752] provides for Wilmington Savings Fund


Society, FSB (the “Liquidation Trustee”) to be appointed as the Liquidation Trustee to administer

the Liquidation Trust in accordance with the Liquidation Trust Agreement and take all actions as

set forth in the Plan.

R. Impaired Classes. Consistent with Bankruptcy Code section 1123(b), the Plan

provides for (a) the impairment of Class 1B – Prepetition BP Secured Claim, Class 2 – General

Unsecured Claims, Class 3 – BP Deficiency Claim and BP Subordinated Claim, Class 4 –

Prepetition CBLIC Claims and Class 5 – Interests, (b) leaving unimpaired Class 1A – Other

Secured Claims, (c) the rejection of executory contracts and unexpired leases, (d) the settlement of

various Claims and controversies, (e) the retention of all Causes of Action, except those expressly

released under the Plan and Final DIP Order, and (d) release, injunction, and/or exculpation of

certain parties.

S. Executory Contracts and Unexpired Leases. Consistent with Bankruptcy Code

section 1123(b)(2), Article 6 of the Plan provides for the rejection of each of the Debtors’

executory contracts and unexpired leases, except with respect to the Debtors’ Insurance Policies,

pursuant to Bankruptcy Code section 365, as of the Effective Date of the Plan, to the extent they

have not (i) been previously assumed or rejected pursuant to an order of the Bankruptcy Court or

applicable provisions of the Bankruptcy Code, (ii) expired or otherwise terminated pursuant to

their terms, or (iii) been the subject of a separate assumption motion filed by one of the Debtors.

T. Rejection Damages. Claims created by the rejection of executory contracts or

unexpired leases pursuant to Section 6.2 of the Plan must be filed no later than thirty (30) days

after the Effective Date. Any such Claims for which a proof of claim is not filed and served within

such time will be forever barred from assertion and shall not be enforceable against the Debtors,

their Estates, or the Liquidation Trustee.


U. No Objection to Deemed Rejection of Contracts and Leases. No party to an

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

objected to such rejection.

V. Injunction, Exculpation, and Releases. The Bankruptcy Court has jurisdiction

under sections 157(a)–(b) and 1334(a) and (b) of title 28 of the United States Code and authority

under Bankruptcy Code sections 105 and 1141 to approve the injunctions or stays, injunction

against interference with the Plan, releases, and exculpation set forth in Article 8 of the Plan.

(a) The Injunction Provisions. The injunction provisions set forth herein and in Section 8.1 of the Plan: (a) are essential to the Plan; (b) are necessary to preserve and enforce the releases set forth in Sections 8.6 and 8.7 of the Plan, the exculpation provisions in Sections 8.4 and 8.5 of the Plan, and the compromises and settlements implemented under the Plan; and (c) are appropriately tailored to achieve that purpose. The injunction provisions set forth herein and in Section 8.1 of the Plan: (a) are within the jurisdiction of this Court under 28 U.S.C. §§ 157(a)–(b) and 1334(a), 1334(b), and 1334(d); (b) are an essential means of implementing the Plan pursuant to section 1123(a)(5) of the Bankruptcy Code; (c) are an integral element of the transactions incorporated into the Plan; (d) confer material benefits on, and are in the best interests of, the Debtors, the Estates, and their creditors and other stakeholders; (e) are important to the overall objectives of the Plan; and (f) are consistent with Bankruptcy Code sections 105, 1123, and 1129, other provisions of the Bankruptcy Code, and other applicable law. The record of the Confirmation Hearing and the Bankruptcy Cases is sufficient to support the injunction provisions set forth herein and in Section 8.1 of the Plan.

(b) The Exculpation Provisions. The exculpation provisions set forth herein and in Sections 8.4 and 8.5 of the Plan were proposed in good faith and are essential to the Plan. The record in the Bankruptcy Cases fully supports the exculpation provisions, and such provisions are appropriately tailored to protect the exculpated parties from inappropriate litigation and to exclude actions determined by Final Order to have constituted gross negligence or willful misconduct.

(c) CBLIC Release in Favor of BP. CBLIC consented to the release it granted in favor of BP pursuant to Section 4.2 of the Plan.

(d) BP Release in Favor of CBLIC. BP consented to the release it granted in favor of CBLIC pursuant to Section 4.5 of the Plan.

(e) (c) The Debtor Release. The release granted by the Debtors and their Estates pursuant to Section 8.6 of the Plan (the “Debtor Release”) representrepresents a valid exercise of the Debtors’ business judgment, and is: (a)


consensual; (b) essential to the Plan; (c) given in exchange for the good and valuable consideration provided by the Released Parties; (d) a good-faith settlement and compromise of the Claims and Causes of Action released by the Debtors; (e) materially beneficial to, and in the best interests of, the Debtors, their Estates, and all holders of Claims and Interests, and important to the overall objectives of the Plan; (f) fair, equitable, and reasonable; (g) given and made after due notice and opportunity for a hearing; (h) not the subject of any objection to the Plan, which Plan was overwhelmingly accepted by those entitled to vote to accept or reject the Plan; (i) a bar to any of the Debtors asserting any Claim or Cause of Action released pursuant to the Debtor Release against any of the Released Parties; and (j) consistent with Bankruptcy Code sections 105, 524, 1123, 1129, and 1141 and other applicable provisions.

(f) (d) The Third Party Release.

(i) The release set forth in Section 8.7 of the Plan (the “Third Party Release”), as has been established based upon the record in the Bankruptcy Cases and the evidence presented at the Confirmation Hearing, is an essential provision of the Plan. The Third Party Release is: (a) consensual; (b) essential to the Plan; (c) given in exchange for the good and valuable consideration provided by the Released Parties; (d) a good-faith settlement and compromise of the Claims and Causes of Action released by the Third Party Release; (e) materially beneficial to, and in the best interests of, the Debtors, their Estates, and all holders of Claims and Interests, and important to the overall objectives of the Plan; (f) fair, equitable, and reasonable; (g) given and made after due notice and opportunity for a hearing, as well as a clear opportunity to opt-out of such Release; (h) not the subject of any objection to the Plan, which Plan was overwhelmingly accepted by those entitled to vote to accept or reject the Plan; (i) a bar to any of the Releasing Parties asserting any Claim or Cause of Action released pursuant to the Third Party Release against any of the Released Parties; and (j) consistent with Bankruptcy Code sections 105, 524, 1123, 1129, and 1141 and other applicable provisions.

(ii) The Third Party Release is an integral part of the Plan. The Third Party Release facilitated participation in both the Plan and the Debtors’ chapter 11 process generally. The Third Party Release was instrumental in developing a Plan and reaching an agreement that maximizes value for all of the Debtors’ stakeholders, and was critical in incentivizing the parties to support the Plan and preventing potentially significant and time-consuming litigation regarding the parties’ respective rights and interests. As such, the Third Party Release appropriately offers certain protections to parties who constructively participated in the Debtors’ restructuring process by, among other things, supporting the Plan. Furthermore, the Third Party Release isconsensual or is otherwise appropriate under controlling law.


(iii) The scope of the Third Party Release is appropriately tailored to the facts and circumstances of the Bankruptcy Cases, and parties in interest received due and adequate notice of the Third Party Release. Among other things, the Plan and Disclosure Statement provide appropriate and specific disclosure and notice with respect to the claims and causes of action that are subject to the Third Party Release, as well as the opportunity to opt out of the Third Party Release, and no other disclosure or notice is necessary. The Third Party Release is specific in language, integral to the Plan, and given for adequate consideration. In light of, among other things, the value provided by the Released Parties to the Debtors’ Estates and the critical nature of the Third Party Release to the Plan, the Third Party Release is appropriate.

W. Plan Compliance with Bankruptcy Code – 11 U.S.C. § 1129(a)(1). As required by

Bankruptcy Code section 1129(a)(1), the Plan complies with all applicable provisions of the

Bankruptcy Code. As set forth in the Confirmation Brief and discussed herein, (a) the Claims and

Interests are properly classified in accordance with Bankruptcy Code sections 1122 and

1123(a)(1); (b) unimpaired Classes are specified as required under Bankruptcy Code section

1123(a)(2); (c) treatment of impaired Classes is specified pursuant to Bankruptcy Code section

1123(a)(3); (d) the Plan provides for the same treatment for each Claim or Interest in each

respective Class unless the holder of a particular Claim or Interest has agreed to a less favorable

treatment of such Claim or Interest, thereby satisfying Bankruptcy Code section 1123(a)(4); (e) the

Plan provides an adequate and proper means for its implementation as required under Bankruptcy

Code section 1123(a)(5); (f) the Plan complies with section 1123(a)(7) as it contains only

provisions that are consistent with the interests of Creditors and Interest holders and with public

policy with respect to the manner of selection of the Liquidation Trustee; and (g) the Plan’s

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

Bankruptcy Code. Bankruptcy Code Sections 1123(a)(6) and 1123(a)(8) are inapplicable in these

Bankruptcy Cases.


X. Debtors’ Compliance with Bankruptcy Code – 11 U.S.C. § 1129(a)(2). As required

by section 1129(a)(2), the plan proponents, the Debtors, have complied with all of the applicable

provisions of the Bankruptcy Code, including, without limitation, the disclosure and solicitation

requirements of Bankruptcy Code sections 1125 and 1126. Except as provided for in the

Disclosure Statement Order, the Debtors transmitted solicitation materials, including Ballots, to

the holders of Claims in Class 1B – Prepetition BP Secured Claims, Class 2 – General Unsecured

Claims, Class 3 – BP Deficiency Claim and BP Subordinated Claim, and Class 4 – Prepetition

CBLIC Claim entitled to vote on the Plan, and non-voting materials, including Opt-Out Forms, to

holders of Claims and fees not classified, Class 1A – Other Secured Claims, and Class 5 –

Interests, only after the Bankruptcy Court approved the Disclosure Statement as containing

adequate information. Such materials were distributed in compliance with the requirements of the

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

Y. Plan Proposed in Good Faith – 11 U.S.C. § 1129(a)(3). As required by section

1129(a)(3), the Plan has been proposed in good faith and not procured by fraud or any means

forbidden by law. The Debtors have valid and legitimate business reasons in proposing the Plan

including, inter alia, providing recoveries in satisfaction of Claims to its various stakeholders.

Z. Payments for Services or Costs and Expenses – 11 U.S.C. § 1129(a)(4). As

required by Bankruptcy Code section 1129(a)(4), any payment made or to be made by the Debtors

for services or for costs and expenses in connection with the Bankruptcy Cases, or in connection

with the Plan, other than those incurred in the ordinary course of business, has been approved, or is

subject to the approval of, the Bankruptcy Court, as reasonable. Each Professional who holds or

asserts a Professional Fee Claim for services rendered before the Effective Date is required to file


an application for final allowance of compensation and reimbursement no later than the first

Business Day after the thirtieth (30th) day after the Effective Date.

AA. Directors, Officers and Insiders – 11 U.S.C. § 1129(a)(5). In accordance with

Bankruptcy Code section 1129(a)(5)(A), the Debtors have disclosed the identity of Wilmington

Savings Fund Society, FSB as the Liquidation Trustee. To the extent the Liquidation Trustee

would fall within the ambit of section 1129(a)(5), the Plan satisfies the requirements of such

section as the Liquidation Trustee has been identified under the Plan. This appointment is

consistent with the interests of Creditors and holders of Interests and with public policy.

BB. No Rate Changes – 11 U.S.C. § 1129(a)(6). Bankruptcy Code section 1129(a)(6) is

inapplicable because the Debtors are winding down their affairs and no longer charging rates that

are the subject of any regulatory commission with jurisdiction.

CC. Best Interests of Creditors – 11 U.S.C. § 1129(a)(7). As required by Bankruptcy

Code section 1129(a)(7), with respect to all impaired Classes of Claims or Interests, each holder of

a Claim or Interest of such Class has either accepted the Plan or will receive or retain under the

Plan on account of such Claim property of a value, as of the Effective Date, that is not less than the

amount such holder would receive or retain if the Debtors were liquidated on the Effective Date

under chapter 7 of the Bankruptcy Code. For this reason, the Debtors have demonstrated by a

preponderance of the evidence that the Plan satisfies section 1129(a)(7).

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

requirements of Bankruptcy Code section 1129(a)(8) are satisfied with respect to Classes 1B and

2, and 3, which have accepted the Plan. The Plan is fair and equitable with respect to Classes 1B,

2, and 3. The rejecting Classes consist of Class 4 – Prepetition CBLIC Claims and Class 5 –

Interests. Class 4 – Prepetition CBLIC Claims voted to reject the Plan. Class 5 – Interests will


receive no Distributions and retain no property under the Plan and is thus deemed to have rejected

the Plan. Because the requirements of section 1129(a)(8) are not satisfied with respect to Class 4

and Class 5, the Debtors have requested that the Bankruptcy Court confirm the Plan under section

1129(b) as to these Classes. The Plan is fair and equitable with respect to the Class 4 Claims and

Class 5 Interests because no Class junior to these Classes under the Plan will receive or retain any

property under the Plan on account of such junior interest. The Plan does not discriminate unfairly

with respect to holders of Claims in Class 4 or Interests in Class 5.

EE. Treatment of Administrative Expense and Priority Claims – 11 U.S.C. §

1129(a)(9). The Plan provides for the treatment of Allowed DIP Financing Claims, Allowed

Administrative Expense Claims, Allowed Professional Fee Claims, Allowed Priority Tax Claims,

Allowed Non-Tax Priority Claims pursuant to Bankruptcy Code section 507(a), in accordance

with Bankruptcy Code section 1129(a)(9), except to the extent that the holder of a particular Claim

has agreed in writing to a different and less favorable treatment.

FF. Acceptance by Impaired Class – 11 U.S.C. § 1129(a)(10). As required by

Bankruptcy Code section 1129(a)(10), and as demonstrated by the Voting Certification, three

impaired Classes of Claims have accepted the Plan (Class 1B – Prepetition BP Secured Claim,

Class 2 – General Unsecured Claims, and Class 3 – BP Deficiency and BP Subordinated Claim

have accepted the Plan), as determined without including any acceptance of the Plan by an insider.

GG. Feasibility – 11 U.S.C. § 1129(a)(11). The Debtors have established that the Plan is

feasible. On and after the Effective Date, the Liquidation Trust Assets will be liquidated or

converted into Cash and the proceeds distributed to Creditors in accordance with the Plan. The

Plan provides for various Distributions to be made by the Liquidation Trustee to Creditors. As


required by Bankruptcy Code section 1129(a)(11), confirmation of the Plan is not likely to be

followed by the liquidation or the need for further financial reorganization of the Debtors.

HH. Payment of Fees – 11 U.S.C. § 1129(a)(12). As required by Bankruptcy Code

section 1129(a)(12), all fees payable pursuant to section 1930 of title 28 of the United States Code,

as determined by the Bankruptcy Court on the Confirmation Date, shall be paid when due and

payable.

II. Retiree Benefits, Domestic Support Obligations, Individuals, and Certain Transfers

– 11 U.S.C. § 1129(a)(13)–(16). Sections 1129(a)(13), (14), (15), and (16) are inapplicable to the

Bankruptcy Cases.

JJ. Fair and Equitable; No Unfair Discrimination – 11 U.S.C. § 1129(b). Pursuant to

Bankruptcy Code section 1129(b), as to any impaired Class of unsecured claims or equity interests

that rejects or does not vote on a plan, such plan must be “fair and equitable” with respect to each

such Class. Classes 1B, 2, and 3 are impaired under the Plan, but have voted to accept the Plan.

Despite the fact that Class 4 initially voted to reject the Second Amended Plan and despite, but by

virtue of the modifications embodied in the Plan filed on June 12, 2020 [Docket No. 768], is

deemed to have (i) voted to accept the plan and (ii) not opted out of the Third Party Release.

Despite the deemed rejection of the Plan by Class 5, the Debtors have satisfied the “cramdown”

requirements under Bankruptcy Code section 1129(b) with respect to those Classes.

KK. Only One Plan – 11 U.S.C. § 1129(c). Other than the Plan (including previous

versions thereof), the Plan is the only chapter 11 plan for the Debtors pending before the

Bankruptcy Court or any other court. No other plan has been filed in these Bankruptcy Cases.

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


LL. Principal Purpose – 11 U.S.C. § 1129(d). The primary purpose of the Plan is not

the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act of

1933, as amended (15 U.S.C. § 77e). No party in interest that is a governmental unit, or any other

entity, has requested that the Bankruptcy Court decline to confirm the Plan on the grounds that the

principal purpose of the Plan is the avoidance of taxes or the avoidance of the application of

section 5 of the Securities Act of 1933.

MM. Conditions Precedent. Upon entry of the Confirmation Order and occurrence of the

Effective Date, all conditions precedent set forth in Article 7 of the Plan will be satisfied or be duly

waived in whole or in part pursuant to Article 7 of the Plan.

DECREES

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:

1. Confirmation. The Plan, annexed hereto as Exhibit A, is confirmable based upon,

inter alia, all of the foregoing Findings of Fact and Conclusions of Law, and is approved and

confirmed under Bankruptcy Code sections 1129(a) and (b); provided, however, that the Effective

Date shall not occur unless and until the Debtors and the Committee resolve the PUC Claims (as

defined and described in the Disclosure Statement) in a way that is consistent with the Approved

Budget filed on May 28, 2020 [Docket No. 729]. The terms of the Plan and all Exhibits thereto,

each, as may be modified, are incorporated by reference into and are an integral part of the Plan

and this order (the “Confirmation Order”).

2. Objection. All parties have had a full and fair opportunity to object to confirmation

of the Plan and to litigate all issues raised in the Objection, or which might have been raised, and

the Objection has been fully considered by the Court and, to the extent not previously resolved or

withdrawn, is overruled for the reasons stated on the record at the Confirmation Hearing. The

record of the Confirmation Hearing is closed.


3. Binding Effect. Pursuant to Bankruptcy Code section 1141(a), except as provided

in section 1141(d)(3), from and after the Confirmation Date, the Plan shall be binding upon the

Debtors, all holders of Claims against, and Interests in, and any other party in interest in the

Bankruptcy Cases and their respective successors and assigns, regardless of whether the Claims or

Interests of such holders or obligations of any party in interest have accepted the Plan or filed a

proof of claim in the Bankruptcy Cases. The terms and provisions of the Plan and this

Confirmation Order shall survive and remain effective after entry of any order that may be entered

converting the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, and the terms

and provisions of the Plan shall continue to be effective in this or any superseding case under the

Bankruptcy Code.

4. Modifications Binding. In accordance with Bankruptcy Code section 1127 and

Bankruptcy Rule 3019, the Plan, as modified and amended by this Confirmation Order, and all of

its provisions and Exhibits, shall be binding on the Debtors, any entity acquiring or receiving

property or a distribution under the Plan, and any holder of a Claim against or Interest in the

Debtor, including all governmental entities, whether or not the holder of such Claim or Interest is

impaired under the Plan or whether or not the holder of such Claim or Interest has accepted the

Plan.

5. The modifications to the Plan, as set forth in the Plan attached hereto as Exhibit A,

comply with Bankruptcy Code section 1127 and Bankruptcy Rule 3019, are non-material

modifications, and are hereby approved and incorporated into the Plan.

6. Solicitation and Notice. Notice of the Confirmation Hearing complied with the

terms of the Disclosure Statement Order, was appropriate and satisfactory based on the

circumstances of the Bankruptcy Cases, and was in compliance with the provisions of the


Bankruptcy Code, the Bankruptcy Rules, and the Local Rules. The solicitation of votes on the

Plan complied with the solicitation procedures in the Disclosure Statement Order, was appropriate

and satisfactory based upon the circumstances of the Bankruptcy Cases, and was in compliance

with the provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Local Rules.

7. Substantive Consolidation. Substantive Consolidation of the Debtors with respect

to the treatment of all Claims and Interests pursuant to Section 5.2 of the Plan is approved. On the

Effective Date, (a) all Assets and liabilities of the Debtors will, solely for Distribution purposes, be

merged or treated as though they were merged; (b) all guarantees of the Debtors of the obligations

of any other Debtor and any joint or several liability of any of the Debtors shall be eliminated; (c)

each and every Claim or Interest against any Debtor shall be deemed a single Claim against, and a

single obligation of, the Debtors and all Claims filed against more than one Debtor for the same

liability shall be deemed one Claim against any obligation of the Debtors; and (d) all transfers,

disbursements, and Distributions on account of Claims made by or on behalf of any of the Debtors’

Estates hereunder will be deemed to be made by or on behalf of all of the Debtors’ Estates.

Holders of Allowed Claims entitled to Distributions under the Plan shall be entitled to their share

of Assets available for Distribution to such Claim without regard to which Debtor was originally

liable for such Claim.

8. Plan Implementation Authorization. The Debtors or the Liquidation Trustee, as

applicable, shall be authorized and empowered to execute, deliver, file, or record such contracts,

instruments, releases, and other agreements or documents and take such actions as are necessary to

consummate the Plan and perform their duties thereunder. All actions contemplated by the Plan

are authorized and approved in all respects (subject to the provisions of the Plan and the


Confirmation Order). The Liquidation Trustee is hereby authorized to make Distributions and

other payments in accordance with the Plan and the Liquidation Trust Agreement.

9. Appointment of Liquidation Trustee. As of the Effective Date, Wilmington

Savings Fund Society, FSB shall be appointed as the Liquidation Trustee. The Liquidation

Trustee shall be deemed the exclusive representative of the Estates and shall have all powers,

authority, and responsibilities specified in the Plan, including, without limitation, the powers of a

trustee under Bankruptcy Code sections 704 and 1106 and, as set forth in Section 5.6(b) of the

Plan, shall be authorized to use commercially reasonable efforts to obtain the return of the

Prepetition Collateral to BP, including directing any entity holding Prepetition Collateral to return

such Prepetition Collateral directly to BP if the Liquidation Trustee deems it appropriate in its

reasonable business judgment.

10. Creation of Liquidation Trust. On the Effective Date, the Liquidation Trust shall be

formed pursuant to the Plan and established and become effective in accordance with the

Liquidation Trust Agreement to liquidate the Liquidation Trust Assets.

11. Transfer of Assets to the Liquidation Trustee. On the Effective Date, the

Liquidation Trust Assets shall be transferred to the Liquidation Trustee, free and clear of all

Claims, liens, Encumbrances and interests of any Entity except for the liens and security interests

of the Secured Creditors as set forth in the Plan.

12. Administration of the Liquidation Trust. The Plan will be administered by the

Liquidation Trustee and all actions taken under the Plan in the name of the Debtors shall be taken

through the Liquidation Trustee; provided, however, that the Liquidation Trust shall administer the

Liquidation Trust Assets contemplated under the Plan pursuant to the Liquidation Trust

Agreement.


13. The Plan, the Liquidation Trust Agreement, all other agreements provided for

under the Plan, and all actions, settlements, transactions, documents, instruments and agreements

referred to therein, contemplated thereunder or executed and delivered in connection therewith

(including the issuance of the General Unsecured Creditor Interests), and any amendments or

modifications thereto in substantial conformity therewith are hereby approved, and the Debtors

and the Liquidation Trustee are authorized and directed to enter into and to perform such

agreements according to their terms.

14. The Liquidation Trustee may execute and deliver all documents, and take all

actions necessary, to wind down the business of Briarcliff Property Group, LLC, including the sale

of its real property located at 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510, as

deemed appropriate by the Liquidation Trustee, and shall have the power to act as the managing

member of Briarcliff Property Group, LLC.

15. Releases, Exculpations, and Injunctions. The injunction, release, and exculpation

provisions as set forth in Article 8 of the Plan are consistent with Bankruptcy Code section 1123(b)

and are hereby approved and confirmed in all respects and shall be effective as provided in the

Plan. On the Effective Date, the provisions of Article 8 of the Plan shall be valid, binding and

effective in all respects, and are hereby approved as integral parts of the Plan as fair, equitable,

reasonable and in the best interest of the Debtors, their Estates and Creditors, and other parties in

interest in the Bankruptcy Cases, without the requirement of any further action.

(a) Injunctions. Pursuant to Section 8.1 of the Plan, all holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments or Distributions to be made under the Plan. Further, except as otherwise specifically provided for by the Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any


judgment, award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii) the commencement or continuation of any action, employment of process or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined under the Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.

(b) Exculpations. Pursuant to Section 8.4 of the Plan, to the extent permitted by Bankruptcy Code section 1125(e), the Debtors, their equity holders, officers, directors, employees and Professionals (including the professional firms and individuals within such firms), and the Creditors’ Committee and its members (acting in such capacity), their respective officers, directors, employees and Professionals (including professional firms and individuals within such firms) shall neither have nor incur any liability to any Person for any act taken or omitted to be taken in connection with or related to the formulation, preparation, dissemination, implementation, administration, funding, confirmation, or consummation of the Plan, the Disclosure Statement, or any contract, instrument, release or other agreement or document created or entered into in connection with the Plan, or any act taken or omitted to be taken during the Bankruptcy Cases, except for acts or omissions as a result of willful misconduct or gross negligence as determined by a Final Order of a court of competent jurisdiction, and in all respects shall be entitled to rely reasonably upon the advice of counsel with respect to their duties and responsibilities under the Plan. From and after the Effective Date, a copy of the Confirmation Order and the Plan shall constitute, and may be submitted as, a complete defense to any Claim or liability released under the Plan. Further, Pursuant to Section 8.5 of the Plan, the Liquidation Trustee and its employees, attorneys, accountants, financial advisors, representatives, and agents, each solely in such capacity, shall not have or incur any liability to any Person or Entity for any act or omission in connection with, or arising out of, the Plan or the property to be distributed under the Plan; except for acts or omissions as a result of willful misconduct or gross negligence as determined by a Final Order of a court of competent jurisdiction.

(c) CBLIC Release in Favor of BP. Pursuant to Section 4.2 of the Plan, effective as of the Effective Date, CBLIC shall be deemed to provide a full release to BP and its respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Prepetition CBLIC Claim, the Prepetition BP Secured Claim, the BP Deficiency Claim, the BP Subordinated Claim, the Debtors, the Junior Loan Agreement, the CBLIC Intercreditor Agreement, or any matters arising under or in connection with the same, including those that CBLIC would


have been legally entitled to assert or that any holder of a Claim against or Interest in CBLIC or any other Entity could have been legally entitled to assert derivatively or on behalf of CBLIC.

(d) BP Release in Favor of CBLIC. Pursuant to Section 4.5 of the Plan, effective as of the Effective Date, BP shall be deemed to provide a full release to CBLIC and its respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Prepetition CBLIC Claim, the Prepetition BP Secured Claim, the BP Deficiency Claim, the BP Subordinated Claim, the Debtors, the Junior Loan Agreement, the CBLIC Intercreditor Agreement, or any matters arising under or in connection with the same, including those that BP would have been legally entitled to assert or that any holder of a Claim against or Interest in BP or any other Entity could have been legally entitled to assert derivatively or on behalf of BP.

(e) (c) Debtor Release. Pursuant to Section 8.6 of the Plan, effective as of the Effective Date, without in any manner limiting or altering any releases granted to the Postpetition Secured Party and Senior Lien Secured Party under the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective affiliates, and each of their respective former, current, or future officers, employees, directors, agents, representatives, owners, members, partners, financial advisors, legal advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and predecessors in interest, for good and valuable consideration provided by each of the Released Parties and CBLIC, shall be deemed to provide a full release to each of the Released Parties and CBLIC (and each such Released Party and CBLIC shall be deemed released by each Debtor and its Estate) and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates; provided, however, that the foregoing Debtor


Release shall not operate to waive or release any Claims or Causes of Action of the Debtors or their Estates for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt, any Claims in respect of Avoidance Actions against the Released Parties and CBLIC shall be released.

(f) (d) Third Party Release. Pursuant to Section 8.7 of the Plan, effective as of the Effective Date, the Releasing Parties shall be deemed to provide a full release to the Released Parties and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates. Nothing in the foregoing shall result in any individual who, on or after the Petition Date, is or was a director, officer, or employee, waiving (i) any indemnification Claims against the Debtors or any of their insurance carriers or any rights as beneficiaries of any insurance policies, including (without limitation) any D&O Policies, (ii) any Claims asserted in timely-filed proofs of claim, or (iii) claims for wages, claims for benefits, and/or claims arising in connection with the KEIP/KERP. Further, the United States and its departments, agencies, and instrumentalities shall be deemed to have opted out of the Third Party Release set forth in Section 8.7 of the Plan.

16. Rejection of Executory Contracts and Unexpired Leases. To the extent not

previously rejected, except with respect to the Debtors’ Insurance Policies, on the Effective Date,

all executory contracts and unexpired leases of the Debtors entered into prior to the Petition Date,

that have not (i) been previously assumed or rejected pursuant to an order of the Bankruptcy Court

or applicable provisions of the Bankruptcy Code, (ii) expired or otherwise terminated pursuant to

their terms, or (iii) been the subject of a separate assumption motion filed by one of the Debtors,

shall be deemed rejected by the Debtors pursuant to the provisions of Bankruptcy Code section

365.


17. Dissolution of the Debtors. On the Effective Date, without the necessity for any

other or further action to be taken by or on behalf of the Debtors, and upon the transfer of the

Liquidation Trust Assets to the Liquidation Trust and the Prepetition Collateral to BP in

accordance with Section 5.14 of the Plan, the members of the board of directors or managers, as

the case may be, and the respective officers of each of the Debtors shall be deemed to have been

removed, and each such Debtors shall be deemed dissolved for all purposes unless the Liquidation

Trustee determines that dissolution can have any adverse impact on the Liquidation Trust Assets,

the Prepetition Collateral, or the Postpetition Collateral; provided, however, that neither the

Debtors nor any party released pursuant to Article 8 of the Plan shall be responsible for any

liabilities that may arise as a result of non-dissolution of the Debtors.

18. Dissolution of the Creditors’ Committee. In accordance with Section 5.15 of the

Plan, on the Effective Date, the Creditors’ Committee shall be deemed to be dissolved and the

members of the Creditors’ Committee shall be released and discharged from all further authority,

duties, responsibilities, and obligations arising from or related to the Bankruptcy Cases and

Professionals retained by the Committee shall be released and discharged from all further

authority, duties, responsibilities, and obligations relating to the Debtors and the Bankruptcy

Cases; provided, however, that the foregoing shall not apply to any matters concerning (a) any

Professional Fee Claims held or asserted by any Professional retained by the Committee or

reimbursement of any reasonable and documented expenses of the Committee’s members incurred

in their capacity as such, (b) any appeal from the Confirmation Order, or (c) the withdrawal of the

Standing Motion pursuant to Section 5.29 of the Plan.


19. Payment of DIP Financing Claims. Pursuant to and in accordance with Section 2.2

of the Plan, the Liquidation Trustee shall pay all Allowed DIP Financing Claims in full, in Cash on

the Effective Date or as soon thereafter as reasonably practicable.

20. Payment of Administrative Expense Claims. Pursuant to and in accordance with

Section 2.3 of the Plan, the Liquidation Trustee shall pay all Allowed Administrative Expense

Claims in full, in Cash in such amounts as may be Allowed by the Bankruptcy Court (a) as soon as

practicable following the later of the Effective Date or the date upon which the Court enters a Final

Order allowing any such Administrative Expense Claim, (b) as otherwise provided in the

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

Administrative Expense Claim.

21. Payment of Professional Fee Claims. Pursuant to and in accordance with Section

2.4 of the Plan, the Liquidation Trustee shall pay all Allowed Professional Fee Claims in full, in

Cash in such amounts as may be Allowed by the Bankruptcy Court (a) as soon as practicable

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

allowing any such Professional Fee Claim, (b) as otherwise provided in the Bankruptcy Code or

approved by the Bankruptcy Court, or (c) as may be agreed upon between the holder of any such

Professional Fee Claim and the Debtors.

22. Intercompany Claims. Pursuant to and in accordance with Section 2.7 of the Plan,

holders of Intercompany Claims will not receive any Distribution of property under the Plan on

account of their Intercompany Claims and, on the Effective Date, the Intercompany Claims will be

cancelled.

23. Payment of Priority Tax Claims. Pursuant to and in accordance with Section 2.5 of

the Plan, unless otherwise agreed to by the parties, the Liquidation Trustee shall pay each holder of

an Allowed Priority Tax Claim Cash of a total value, as of the Effective Date, equal to the Allowed


amount of such Priority Tax Claim either (a) in full on the Effective Date, or (b) in regular

installment payments over a period ending not later than five (5) years after the Petition Date,

which treatment is not less favorable than that provided to the General Unsecured Creditors, in

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

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

ordinary course of business in accordance with the terms thereof.

24. Payment of Non-Tax Priority Claims. Pursuant to and in accordance with Section

2.6 of the Plan, the Liquidation Trustee shall pay each holder of an Allowed Non-Tax Priority

Claim Cash on the Effective Date of a total value, as of the Effective Date or as otherwise provided

in the Bankruptcy Code or approved by the Bankruptcy Court, equal to the full Allowed amount of

such Non-Tax Priority Claim, except to the extent that a holder of such claim agrees to different

treatment; provided, however, that all Allowed Non-Tax Priority Claims that are not due and

payable on or before the Effective Date shall be paid in the ordinary course of business in

accordance with the terms thereof.

25. Payment of Statutory Fees. Pursuant to and in accordance with Section 2.8 of the

Plan, on the Effective Date and thereafter as may be required, the Liquidation Trustee shall pay all

fees for which the Debtors are obligated pursuant to 28 U.S.C. § 1930(a)(6), together with interest,

if any, pursuant to 31 U.S.C. § 3717, when due and payable until the entry of a final decree closing

the Bankruptcy Cases, a Final Order converting the Bankruptcy Cases to cases under chapter 7 of

the Bankruptcy Code, or a Final Order dismissing the Bankruptcy Cases.

26. Final Administrative Expense Claims Bar Date. As provided in Section 5.20 of the

Plan, requests for payment of Administrative Expense Claims that were not required to be filed

and served by the First Administrative Expense Claim Bar Date other than (a) an Administrative


Expense Claim that has become an Allowed Administrative Expense Claim on or before the

Effective Date, (b) an Administrative Expense Claim on account of fees and expenses incurred on

or after the Petition Date by ordinary course professionals retained by the Debtors pursuant to an

order of the Bankruptcy Court, or (c) an Administrative Expense Claim arising out of the

employment by the Debtors of an individual in the ordinary course of business from and after the

Petition Date, but only to the extent that such Administrative Expense Claim is solely for

outstanding wages, commissions, accrued benefits, or reimbursement of business expenses, must

be filed and served on or before 5:00 p.m. (prevailing Eastern Time) on or before the first Business

Day after the fourteenth (14th) day after the date of the entry of this Confirmation Order.

Objections, if any, to a timely request for payment of an Administrative Expense Claim must be

filed and served on the Liquidation Trustee and the requesting party no later than ninety (90) days

after the Effective Date.

27. Deadline for Filing Applications for Professional Fee Claims. As provided in

Section 5.21 of the Plan, all parties seeking payment of Professional Fee Claims must file with the

Bankruptcy Court a final application and/or an application for payment of reasonable fees and

expenses under Bankruptcy Code section 503(b), as applicable, on or before the first Business Day

after the thirtieth (30th) day after the Effective Date (the “Fee Application Deadline”). Any

Professional failing to file and serve such final application or 503(b) motion on or before the Fee

Application Deadline shall be forever barred from asserting any such right to payment against the

Debtors or the Estates. Objections to such Professional Fee Claims, if any, must be filed and

served no later than fifty (50) days after the Effective Date.

28. Exemption from Certain Taxes and Fees. Pursuant to and to the extent set forth in

Bankruptcy Code section 1146(a), any issuance, transfer, or exchange of a security, or the making


or delivery of an instrument of transfer of property, pursuant to or in connection with the Plan shall

not be subject to any Stamp or Similar Tax or governmental assessment in the United States or by

any other Governmental Unit. Such exemption specifically applies, without limitation, to all

actions, agreements and documents necessary to evidence and implement the provisions of,

transactions contemplated by, and the distributions to be made under the Plan. Consistent with the

foregoing, any appropriate federal, state or local (domestic or foreign) governmental officials or

agents shall forgo the collection of any such Stamp or Similar Tax or governmental assessment and

accept for filing and recordation instruments or other documents evidencing such action or event

without the payment of any such Stamp or Similar Tax or governmental assessment.

29. Incorporation by Reference. The Plan is incorporated in full herein by reference.

Failure specifically to include or refer to particular sections or provisions of the Plan or any related

agreement in this Confirmation Order shall not diminish the effectiveness of such sections or

provisions nor constitute a waiver thereof, it being the intent of the Bankruptcy Court that the Plan

be confirmed and such related agreements be approved in their entirety.

30. Inconsistencies. To the extent that this Confirmation Order and/or Plan is

inconsistent with the Disclosure Statement, Liquidation Trust Agreement, or any other agreement

entered into between the Debtors and any third party, the Plan controls the Disclosure Statement,

Liquidation Trust Agreement, and other such agreements, and the Confirmation Order controls the

Plan.

31. Non-Severability. The provisions of the Plan and the Confirmation Order,

including the findings of fact and conclusions of law, are non-severable and mutually dependent.

32. Reference. The failure specifically to include or reference any particular provision

of the Plan or any related document or agreement in this Confirmation Order shall not diminish or


impair the efficacy of such provision or related document or agreement, it being the intent of the

Bankruptcy Court that the Plan is confirmed in its entirety, the Plan and such related documents or

agreements are approved in their entirety, and the Plan is incorporated herein by reference.

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

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

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

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

this Confirmation Order and the satisfaction or waiver of all other conditions to the Effective Date

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

34. Substantial Consummation. The substantial consummation of the Plan, within the

meaning of Bankruptcy Code sections 1101 and 1127(b), is deemed to occur on the Effective Date.

35. Notice of Entry of Confirmation Order. No later than five (5) business days

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

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

holders of Claims and Interests, the U.S. Trustee, counterparties to any executory contracts or

unexpired leases that were not rejected as of the Voting Record Date, and the parties named on the

Master Service List (as defined in the Order Establishing Certain Notice, Case Management, and

Administrative Procedures and (B) Granting Related Relief [Docket No. 96]) maintained in the

Bankruptcy Cases, by causing notice substantially in the form attached hereto as Exhibit B to be

delivered to such parties by first-class mail, postage prepaid.

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

the Effective Date, the Debtors shall file notice of the Effective Date with the Court and serve a

copy of such notice on the parties named on the Master Service List.


37. Enforceable Upon Effective Date. Pursuant to Bankruptcy Code section 1142(a)

and the provisions of this Confirmation Order, upon the occurrence of the Effective Date, the Plan

shall apply and be enforceable notwithstanding any otherwise applicable nonbankruptcy law.

38. Continuation of Injunction and Stay. Unless otherwise provided herein, all

injunctions or stays provided for in the Bankruptcy Cases pursuant to Bankruptcy Code sections

105 and 362(a), or otherwise, and in existence on the Confirmation Date, shall remain in full force

and effect until the Bankruptcy Cases are closed, and at such time shall be dissolved and of no

further force or effect, subject to the provisions of the Plan and the Confirmation Order, or a

combination thereof.

39. Retention of Jurisdiction. Notwithstanding the entry of this Confirmation Order or

the occurrence of the Effective Date, pursuant to Bankruptcy Code sections 105 and 1142, the

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

the Bankruptcy Cases to the fullest extent as is legally permissible.

Dated: _______________, 2020White Plains, New York

___________________________________THE HONORABLE ROBERT D. DRAINUNITED STATES BANKRUPTCY JUDGE


Exhibit A

(Confirmed Plan Will Be Attached Hereto)`


Exhibit B

Notice of Entry of Confirmation Order


MCDERMOTT WILL & EMERY LLPTimothy W. WalshDarren AzmanRavi Vohra340 Madison AvenueNew York, New York 10173Telephone: (212) 547-5615Facsimile: (212) 547-5444

Counsel to the Debtors andDebtors in Possession

UNITED STATES BANKRUPTCY COURTSOUTHERN DISTRICT OF NEW YORK

)In re: ) Chapter 11

)AGERA ENERGY LLC, et al.,1 )

)Case No. 19-23802 (RDD)

Debtors. ))


NOTICE OF ENTRY OF: (I) ORDER CONFIRMINGMODIFIED SECOND AMENDED JOINT CHAPTER 11 PLAN OF

LIQUIDATION OF AGERA ENERGY LLC, ET AL. DATED JUNE 912, 2020; AND (II) DEADLINE FOR FILING ADMINISTRATIVE EXPENSE CLAIMS,

PROFESSIONAL FEE CLAIMS, AND CLAIMS ARISING FROM REJECTION OFEXECUTORY CONTRACTS OR UNEXPIRED LEASES

PLEASE TAKE NOTICE that on June __, 2020, the United States Bankruptcy Court

for the Southern District of New York entered an order (the “Confirmation Order”) [Docket. No.

___], confirming the Modified Second Amended Joint Chapter 11 Plan of Liquidation of Agera

Energy LLC, et al., dated June 912, 2020 (the “Plan”)2 [Docket No. 757768].

1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988); Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.2 Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Plan.


2

PLEASE TAKE FURTHER NOTICE that the Confirmation Order and the Plan are each

on file with the Clerk of the Bankruptcy Court, and may be examined by interested parties at the

Office of the Clerk of the Bankruptcy Court, United States Bankruptcy Court, Southern

District of New York, One Bowling Green, New York, New York 10004, during regular business

hours. Copies of the Plan and Confirmation Order may also be obtained free of charge by visiting

the website of Stretto, the Debtors’ agent supervising the solicitation, tabulation, and balloting

process at http://cases.stretto.com/agera. You may also obtain copies of any pleadings by visiting

the Court’s website at http://www.nysb.uscourts.gov in accordance with the procedures and fees

set forth therein.

PLEASE TAKE FURTHER NOTICE that pursuant to Section 5.20 of the Plan, requests

for payment of Administrative Expense Claims that were not required to be filed and served by the

First Administrative Expense Claim Bar Date, other than:

(a) an Administrative Expense Claim that has become an Allowed Administrative Expense Claim on or before the Effective Date;

(b)an Administrative Expense Claim on account of fees and expenses incurred on or after the Petition Date by ordinary course professionals retained by the Debtors pursuant to an order of the Bankruptcy Court; or

(c) an Administrative Expense Claim arising out of the employment by the Debtors of an individual in the ordinary course of business from and after the Petition Date, but only to the extent that such Administrative Expense Claim is solely for outstanding wages, commissions, accrued benefits, or reimbursement of business expenses;


Business Day after the fourteenth (14th) day after the Confirmation Date (the “Final

Administrative Expense Claims Bar Date”).

PLEASE TAKE FURTHER NOTICE that pursuant to Section 5.20 of the Plan, any

Person asserting an Administrative Expense Claim not subject to the First Administrative Expense


3

Claim Bar Date that fails to file and serve an application or motion seeking approval of the

Administrative Expense Claim on or before the Final Administrative Expense Claims Bar Date

shall be forever barred from asserting any such right to payment as against the Debtors, the Estates,

and the Liquidation Trust.


parties seeking payment of Professional Fee Claims must file with the Bankruptcy Court a final

application and/or an application for payment of reasonable fees and expenses under Bankruptcy

Code section 503(b), as applicable, on or before the first Business Day after the thirtieth (30th) day

after the Effective Date (the “Fee Application Deadline”). Any Professional failing to file and

serve such final application or 503(b) motion on or before the Fee Application Deadline shall be

forever barred from asserting any such right to payment against the Debtors or the Estates.

PLEASE TAKE FURTHER NOTICE that pursuant to Section 6.2 of the Plan, all proofs

of Claim arising out of the rejection of an executory contract or an unexpired lease pursuant to

Section 6.1 of the Plan must be filed with no later than thirty (30) days after the Effective Date.

The failure to timely file a proof of Claim shall be deemed a waiver of any Claim in connection

with the rejection of such contract or lease. Proofs of claim must be filed either electronically

through https://case.stretto.com/agera/fileaclaim or by mailing the original proof of Claim either

by U.S. Postal Service mail or overnight delivery to: (1) the United States Bankruptcy Court,

Southern District of New York; (2) Agera Claims Processing Center, c/o Stretto, 410 Exchange,

Ste. 100, Irvine, CA 92602; or (3) by delivering the original proof of claim by hand to the United

States Bankruptcy Court, Southern District of New York Southern District of New York, 300

Quarropas Street, Room 248, White Plains, NY 10601.

Dated: June __, 2020 Respectfully submitted,New York, NY


4


/s/Timothy W. WalshDarren AzmanRavi Vohra340 Madison AvenueNew York, NY 10173Telephone: (212) 547-5615Facsimile: (212) 547-5444 Email: [email protected]

[email protected]

Counsel to the Debtors andDebtors in Possession
