UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW...

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)

ORDER APPROVING (I) DISCLOSURE

STATEMENT, (II) FORM AND MANNER OF NOTICES, (III) FORM OF BALLOTS AND OPT-OUT NOTICES AND (IV) SOLICITATION MATERIALS AND

SOLICITATION PROCEDURES

Upon the motion (the “Motion”)2 of the above-captioned debtors, as debtors and debtors

in possession (collectively, the “Debtors”), pursuant to sections 105, 1125, 1126, and 1128 of

title 11 of the United States Code (the “Bankruptcy Code”) and Rules 2002, 3017, 3018, 3020,

and 9006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rules

3017-1, 3018-1, and 3020-1 of the Local Bankruptcy Rules for the Southern District of New

York (the “Local Rules”) for the entry of this order approving (i) their proposed disclosure

statement for their proposed chapter 11 plan, (ii) the form and manner of related notices, (iii) the

form of ballots and opt-out forms, and (iv) the solicitation materials and solicitation procedures,

all as more fully set forth in the Motion; and this Court having jurisdiction over this matter

pursuant to 28 U.S.C. §§ 157(a)-(b) and 1334(b) and the Amended Standing Order of Reference

from the United States District Court for the Southern District of New York, dated January 31,

2012, as a core proceeding pursuant to 28 U.S.C. § 157(b)(2) that this Court may decide by a

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 Motion or Plan, as appropriate.

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final order consistent with Article III of the United States Constitution; and this Court having

found that venue in this district is proper pursuant to 28 U.S.C. §§ 1408 and 1409; and this Court

having found that the Debtors’ notice of the Motion and opportunity for a hearing on the Motion

were appropriate under the circumstances and that no other notice need be provided; and there

being no filed objections to the relief granted herein; and upon the record of the hearing held by

the Court on the Motion on May 6, 2020 (the “Hearing”), at which the Court made certain

comments and raised questions with respect to the proposed plan and disclosure statement; and

the Debtors having revised their proposed plan and disclosure statement in response, and the

Court having determined that such revisions adequately address such comments and questions;

and the Debtors having filed on May 9, 2020 a revised disclosure statement (the “Disclosure

Statement”) and a revised chapter 11 plan (the “Plan”) that contain such revisions and also

reflect subsequent developments in the Bankruptcy Cases; and, after due deliberation this Court

having determined that the Disclosure Statement contains “adequate information” under

Bankruptcy Code section 1125 and that the Debtors should be entitled to solicit acceptances of

the Plan; and the Court having further determined that Debtors have established good and

sufficient cause for the related relief requested in the Motion with respect to the forms of ballots,

opt-outs from the Plan’s third-party release, and notice of the confirmation hearing as set forth

herein, and that such relief is in the best interests of the Debtors’ estates, their creditors, and

other parties in interest; NOW, THEREFORE, the Bankruptcy Court hereby finds as follows:

1. The Disclosure Statement complies with the requirements of the Bankruptcy Code

and the Bankruptcy Rules and contains adequate information, as such term is defined in

Bankruptcy Code section 1125.


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2. Proper and adequate notice of the time fixed for filing objections to the Disclosure

Statement and the Hearing on approval of the Disclosure Statement has been given to all parties

in interest.

3. The solicitation procedures proposed in the Motion and approved hereby are fair

and reasonable.

4. The following dates and times are approved in connection with solicitation and

confirmation of the Plan:3

Event Date/Deadline

Disclosure Statement Objection Deadline April 29, 2020, at 4:00 p.m. Disclosure Statement Hearing Date May 6, 2020 at 2:30 p.m. Voting Record Date May 6, 2020 Solicitation Date May 12, 2020 Publication Deadline May 12, 2020 or as soon thereafter as

is reasonably practicable Deadline to File Plan Supplement June 2, 2020 Plan Objection Deadline June 9, 2020 at 4:00 p.m. Voting Deadline June 9, 2020 at 4:00 p.m. Voting Certification Deadline June 10, 2020 Confirmation Hearing June 12, 2020 at 2:00 p.m.

5. The procedures set forth below regarding notice of the time, date, and place of the

Confirmation Hearing and the filing of objections to the confirmation of the Plan, and the

distribution and contents of the Solicitation Packages, comply with Bankruptcy Rules 2002 and

3017 and constitute sufficient due, and proper notice to all interested parties.

ACCORDINGLY, after due deliberation and sufficient cause appearing therefor, IT IS

HEREBY ORDERED THAT:

1. The Motion is granted as provided herein, including and the Disclosure Statement

is hereby approved under Bankruptcy Code section 1125.

3 All proposed times set forth in the table below are in Prevailing Eastern Time.


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2. The Confirmation Hearing will be held before the Honorable Robert D. Drain,

United States Bankruptcy Judge, in the United States Bankruptcy Court for the Southern District

of New York, 300 Quarropas Street, White Plains, New York 10601, on June 12, 2020 at 2:00

p.m. (Prevailing Eastern Time), as such date may be continued or adjourned by the Bankruptcy

Court. 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.

3. Objections or proposed modifications, if any, to the Plan must (i) be in writing,

(ii) state the name and address of the objecting party and the amount and nature of the Claim or

Interest of such party, (iii) state with particularity the basis and nature of any objection or

proposed modification, and (iv) be filed with the Clerk of the Bankruptcy Court, with a copy

delivered to the Court’s chambers, and served so as to be received by: (a) McDermott Will &

Emery LLP, 340 Madison Avenue, New York, NY 10173, Attn: Darren Azman and Ravi Vohra,

counsel to the Debtors; (b) Kilpatrick Townsend & Stockton LLP, The Grace Building, 114

Avenue of the Americas, New York, NY 10036-7703, Attn: Todd. C. Meyers and Kilpatrick

Townsend & Stockton LLP, 1100 Peachtree Street, Suite 2800, Atlanta, GA 30309, Attn: Colin

M. Bernardino, counsel to the Committee; (c) the United States Trustee, U.S. Federal Office

Building, 201 Varick Street, Suite 1006, New York, New York 10004, Attention: Andrea Beth

Schwartz and Shannon Scott; and (d) Haynes and Boone, LLP, 1221 McKinney Street, Suite

2100, Houston, TX 77010, Attn: Kathryn Shurin and Kelli Stephenson Norfleet, counsel to BP,

no later than 4:00 p.m. (Prevailing Eastern Time) on June 9, 2020 (the “Plan Objection

Deadline”). Email service under the Case Management Order [Docket No. 96] in these cases

shall suffice as sufficient service thereof.


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4. The Solicitation Procedures are hereby approved as provided herein.

5. The Debtors shall cause the Voting Agent, by May 12, 2020 (the “Solicitation

Date”), to mail the Solicitation Package, including a copy of this Order and a Ballot substantially

in the form attached hereto as Exhibit A, Exhibit B, Exhibit C, or Exhibit D, as appropriate, to

all known holders of Claims in Classes 1B, 2, 3, and 4, respectively.

6. Consistent with Bankruptcy Code section 1126 and Bankruptcy Rule 3017(d), the

Solicitation Package will not be distributed to holders of Claims against or Interests in the

Debtors that are placed in a class under the Plan that is deemed to accept or reject the Plan,

including holders of Administrative Expense Claims, Priority Tax Claims, and Non-Tax Priority

Claims, under Bankruptcy Code section 1126; provided, however, that the Debtors shall

distribute (in addition to the Confirmation Hearing Notice) an Opt-Out Notice, substantially in

the form attached hereto as Exhibit E or Exhibit F, as appropriate, to holders of Claims or

Interests that are deemed to accept or deemed to reject the Plan along with a postage prepaid

return envelope. If such holders do not timely opt-out of the third-party releases described

on such Opt-Out Notice, under the Plan they will be deemed to have agreed TO GRANT

the release described on such Notice.

7. On or before the Solicitation Date, the Debtors shall cause the Voting Agent to

mail the Confirmation Hearing Notice, substantially in the form attached hereto as Exhibit G, to

all known holders of Claims and Interests in the Bankruptcy Cases.

8. The Debtors shall cause the Contract/Lease Notice, substantially in the form

attached hereto as Exhibit H, to be mailed to counterparties to any executory contracts or

unexpired leases that have not been rejected as of the Voting Record Date (as defined below).


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9. The Debtors may in their discretion provide the Disclosure Statement, Plan, and

Disclosure Statement Order in electronic format (i.e. on a CD-ROM or flash drive) rather than

paper copies, and if parties prefer paper copies of the Disclosure Statement, Plan, and Disclosure

Statement Order they submit a written request Voting Agent, who shall fulfill all such requests.

10. The Debtors shall file and serve the Plan Supplement Notice as soon as

reasonably practicable following the date on which the Plan Supplement is filed pursuant to the

terms of the Plan, but in any event no later than ten (10) days prior to the Confirmation Hearing.

11. The Debtors and the Voting Agent are authorized to, prior to solicitation, (a)

make non-material and conforming changes (including, but not limited to correcting

typographical errors, altering formatting and inserting missing or changed dates) to the Plan, the

Disclosure Statement, and related solicitation documents and forms and (b) revise the Disclosure

Statement and related documents (including, without limitation, the exhibits thereto) to add

further disclosure, including disclosure concerning events occurring at or after the Hearing.

12. The first calendar date set for the hearing to approve the Disclosure Statement

shall be the record date (the “Voting Record Date”) for purposes of determining which creditors

are entitled to vote on the Plan.

13. Ballots completed by holders of Claims in Classes 1B, 2, 3, or 4 must be actually

received by the Voting Agent on or before 4:00 p.m. (Prevailing Eastern Time) on June 9,

2020 (the “Voting Deadline”) via the E-Ballot Platform on the Voting Agent’s website

(http://cases.stretto.com/agera), or at the following address: Agera Balloting, c/o Stretto,

8269 E. 23rd Ave., Ste. 275, Denver, CO 80238.

14. For voting purposes only, and not for the purpose of determining who has an

allowed Claim or who is entitled to receive a Distribution under the Plan: each holder of a voting


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Claim shall have an Allowed Claim, solely for the purpose of voting on the Plan, in an amount

equal to (i) the amount of such Claim as allowed by order of Court or as allowed pursuant to the

Plan; (ii) if (i) does not apply, then the amount of any timely filed proof of Claim that is not the

subject of an objection; or (iii) if neither (i) nor (ii) applies, then the non-contingent, liquidated,

and undisputed amount set forth on the Debtors’ Schedules as filed in the Bankruptcy Cases.

15. Holders of (i) filed Claims that are wholly unliquidated or are in a zero or

unknown amount and (ii) scheduled Claims that are wholly unliquidated or are scheduled in a

zero or unknown amount and as to which a timely proof of claim has not be filed are entitled to

vote in the amount of $1.00.

16. For purposes of the Voting Record Date, no transfer of Claims pursuant to

Bankruptcy Rule 3001 shall be recognized unless (i) documentation evidencing such transfer was

filed with the Bankruptcy Court on or before twenty-one (21) days prior to the Voting Record

Date; and (ii) no timely objection with respect to such transfer was filed by the transferor.

17. If a proof of Claim clearly (i) is duplicative of another proof of Claim filed by or

on behalf of the same holder, or (ii) amends or supersedes a prior proof of Claim filed by or on

behalf of the same holder, such later-filed proof of Claim shall supersede the duplicative,

amended, or superseded Claim (as applicable) for voting and tabulation purposes and the holder

shall have one (1) Claim for voting purposes.

18. If the Debtors have filed and served an objection to a voting Claim at least

fourteen (14) days prior to the Voting Deadline, such Claim shall be disallowed for voting

purposes only and not for the purpose of allowance or Distribution.

19. If any holder of a Claim seeks to challenge the allowance (or disallowance) of its

Claim for voting purposes, such creditor shall serve on the Debtors and file with the Bankruptcy


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Court a motion for an order pursuant to Bankruptcy Rule 3018(a) temporarily allowing such

Claim in a different amount for purposes of voting to accept or reject the Plan on or before the

Voting Deadline, and that in accordance with Bankruptcy Rule 3018, such holder’s Ballot should

not be counted unless temporarily allowed by the Bankruptcy Court for voting purposes.

20. To ensure that its vote is counted, each holder of a Claim in Classes 1B, 2, 3, and

4 must (a) complete a Ballot, (b) indicate the holder’s decision whether to accept or reject the

Plan in the boxes provided in the Ballot;,and (c) sign and return the Ballot by the Voting

Deadline, via the E-Ballot Platform on the Voting Agent’s website

(http://cases.stretto.com/agera) or to the address set forth on the envelope enclosed therewith.

21. The following Solicitation Procedures are hereby approved:

a. Except to the extent allowed by the Bankruptcy Court, Ballots received after the Voting Deadline will not be accepted or counted in connection with the Debtors’ request for confirmation of the Plan;

b. Each voting creditor shall be deemed to have voted the full amount of its Allowed Claim either to accept or reject the Plan;

c. Any Ballot that partially rejects and partially accepts the Plan shall not be counted;

d. The method of delivery of Ballots to be sent to the Voting Agent is at the election and risk of each holder of a Claim, and except as otherwise provided in the Disclosure Statement, such delivery will be deemed made only when the original executed Ballot is actually received by the Voting Agent;

e. Delivery of a Ballot by facsimile, email or any other electronic means (other than E-Ballot) will not be accepted will not be accepted;

f. No Ballot should be sent to the Debtors, their attorneys or any of their respective agents (other than the Voting Agent);

g. The Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify the Plan at any time prior to the entry of the Confirmation Order. If the Debtors make material changes to the Plan or the Debtors waive a material condition (except the waiver of conditions for the occurrence of the Effective Date (as defined


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in the Plan) for which no Court direction or approval shall be required), the Debtors will disseminate additional solicitation materials and will extend the solicitation, in each case to the extent directed by the Bankruptcy Court;

h. If multiple Ballots are received from or on behalf of an individual holder of a Claim with respect to the same Claim prior to the Voting Deadline, and the later received Ballot does not reflect a change in said individuals’ acceptance or rejection of the Plan, the last valid Ballot timely received will be deemed to reflect the voter’s intent and to supersede and revoke any prior Ballot; otherwise, any holder of a Claim that seeks to change or withdraw an acceptance or rejection of the Plan must comply with the requirements set forth in Bankruptcy Rule 3018(a);

i. If a Ballot is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or other person acting in a fiduciary or representative capacity, such person shall be required to indicate such capacity when signing and, upon request of the Debtors, submit proper evidence satisfactory to the Debtors to so act on behalf of a beneficial interest holder;

j. Upon further approval of the Bankruptcy Court, the Debtors may waive any defect in any Ballot at any time, either before or after the close of voting;

k. Any holder of an impaired Claim that has delivered a valid Ballot voting on the Plan may withdraw such vote solely in accordance with Bankruptcy Rule 3018(a);

l. Any Ballot received that does not indicate either an acceptance or rejection of the Plan, but includes a valid signature, will not be counted except as approved by further order of the Bankruptcy Court;

m. Any Ballot that is unsigned, is tendered by a claimant in a class to which the corresponding Claim is not classified, or is filed after the Voting Deadline will not be counted except as agreed in writing by the Debtors;

n. Neither the Debtors nor any other person or entity will be under any duty to provide notification of defects or irregularities with respect to any Ballots, nor will any of them incur any liability for failure to provide such notification; and

o. The Voting Agent shall maintain and tabulate all Ballots received in accordance with the aforementioned procedures. Notwithstanding Local Rule 3018-1, the Voting Agent shall file a certification of the votes accepting and rejecting the Plan four (4) days prior to the Confirmation Hearing. Ballots shall remain with the Voting Agent and shall not be filed


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with the Bankruptcy Court.

21. The Debtors and the Voting Agent shall not be required to re-mail undelivered

Solicitation Packages or other undeliverable solicitation-related notices that were returned

marked “undeliverable” or “moved - no forwarding address” or for a similar reason, unless the

Debtors and the Voting Agent have been informed in writing by such person of that person’s

new address.

22. The Voting Agent may include a Form W-9 or other tax documents with the

solicitation materials sent to holders of unimpaired and voting Claims.

23. The Debtors are authorized and empowered to take all actions and execute such

other documents as may be necessary to implement the relief granted herein.

24. This Court shall retain jurisdiction to hear and determine all matters arising from

the implementation of this order.

Dated: May 9, 2020 White Plains, New York

_/s/Robert D. Drain

THE HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE


Exhibit A

Ballot – Class 1B


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. ) )


BALLOT FOR ACCEPTING OR REJECTING THE SECOND AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF AGERA ENERGY LLC, ET AL.

CLASS 1B: PREPETITION BP SECURED CLAIM

THE VOTING DEADLINE TO ACCEPT OR REJECT THE PLAN IS JUNE 9, 2020 AT 4:00 P.M. (PREVAILING EASTERN TIME). YOUR BALLOT MUST BE ACTUALLY RECEIVED BY THIS DEADLINE TO BE COUNTED.

This ballot (the “Ballot”) is submitted to you to solicit your vote to accept or reject the

Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., dated May 9, 2020 (including all exhibits thereto and as may be amended or supplemented from time to time, the “Plan”) submitted by Agera Energy LLC and the above-captioned debtors, as debtors and debtors in possession (collectively, the “Debtors”) and described in the related Second Amended Disclosure Statement for Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., dated May 9, 2020 (including all exhibits thereto and as amended or supplemented from time to time, the “Disclosure Statement”) approved by Order (the

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.


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“Disclosure Statement Order”) of the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”). The Disclosure Statement provides information to assist you in deciding how to vote your Ballot. If you do not have a Disclosure Statement, you may obtain a copy by contacting Stretto at 8269 E. 23rd Ave., Ste 275, Denver, CO 80238, or by telephone at (877) 273-7276. Copies of the Disclosure Statement are also available for inspection during regular business hours at the Office of the Clerk of the Bankruptcy Court, Southern District of New York, 300 Quarropas Street, Room 248, White Plains, NY 10601, and may be viewed for a fee on the internet at the Bankruptcy Court’s website (http://www.nysb.uscourts.gov/) by following the directions for accessing the ECF system on such website. Copies of the same can also be obtained free of charge by visiting the website of Stretto at http://cases.stretto.com/agera. You should review the Disclosure Statement and the Plan before you vote. You may wish to seek legal advice concerning the Plan and your classification and treatment under the Plan. Capitalized terms used in this Ballot or the attached instructions but not otherwise defined herein have the meanings given to them in the Plan.

The Plan may be confirmed by the Bankruptcy Court and thereby made binding on you if it is accepted by the holders of the least two-thirds in amount and more than one-half in number of the Claims in each Impaired Class that is entitled to vote on the Plan and so votes, and if the Plan otherwise satisfies the applicable requirements of section 1129(a) of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy Code”). If the requisite acceptances are not obtained, the Bankruptcy Court may nonetheless confirm the Plan if it finds that the Plan (a) provides fair and equitable treatment to, and does not unfairly discriminate against, the Class or Classes rejecting the Plan and (b) otherwise satisfies the requirements of Bankruptcy Code section 1129(b).

PLEASE READ THE ATTACHED VOTING INFORMATION AND INSTRUCTIONS BEFORE COMPLETING THIS BALLOT

PLEASE COMPLETE ITEM 1 BELOW. IF THIS BALLOT IS NOT SIGNED ON THE APPROPRIATE LINE, THIS BALLOT WILL NOT BE VALID OR COUNTED AS HAVING BEEN CAST.

Item 1. Class Vote. The undersigned, a holder of a Class 1B Prepetition BP Secured Claim as of May 6, 2020, the voting record date established by the Bankruptcy Court, in the amount set forth below, votes to (check one box):

□ ACCEPT (vote FOR) the Plan � REJECT (vote AGAINST) the Plan

Voting Amount: $_________________


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Taxpayer Identification Number:2 _____________________

Item 2. Important Information Regarding the Releases

Important Information Regarding the Third Party Release:

AS A “RELEASING PARTY” UNDER THE PLAN, YOU ARE DEEMED TO PROVIDE THE RELEASES CONTAINED IN ARTICLE 8 OF THE PLAN. YOU MAY CHECK THE BOX BELOW TO INDICATE THAT YOU WISH TO ELECT NOT TO GRANT THE RELEASES CONTAINED IN ARTICLE 8 OF THE PLAN. YOU WILL NOT BE CONSIDERED A “RELEASING PARTY” UNDER THE PLAN ONLY IF (I) THE BANKRUPTCY COURT DETERMINES THAT YOU HAVE THE RIGHT TO OPT OUT OF THE RELEASES AND ONLY IF (II) YOU CHECK THE BOX BELOW AND (A) SUBMIT THE BALLOT BUT ABSTAIN FROM VOTING TO ACCEPT OR REJECT THE PLAN OR (B) VOTE TO REJECT THE PLAN. REGARDLESS OF WHETHER THE BANKRUPTCY COURT DETERMINES THAT YOU HAVE THE RIGHT TO OPT OUT OF THE RELEASES, IF YOU (A) VOTE TO ACCEPT THE PLAN, (B) FAIL TO SUBMIT A BALLOT BY THE VOTING DEADLINE, (C) SUBMIT THE BALLOT AND ABSTAIN FROM VOTING TO ACCEPT OR REJECT THE PLAN BUT FAIL TO CHECK THE BOX BELOW, OR (D) VOTE TO REJECT THE PLAN, BUT FAIL TO CHECK THE BOX BELOW, IN EACH CASE, YOU WILL BE DEEMED TO CONSENT TO THE RELEASES SET FORTH IN ARTICLE 8 OF THE PLAN.

The holder of the Class 1B Prepetition BP Secured Claim identified in Item 1 elects to:

□ OPT OUT of the Third Party Release

Section 8.6 of the Plan contains the following Releases by the Debtors (the “Debtor Release”).

Effective as of the Effective Date, without in any manner limiting or altering any releases granted to the Postpetition Secured Party and Senior Lien Secured Party under the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective affiliates, and each of their respective former, current, or future officers, employees, directors, agents, representatives, owners, members, partners, financial advisors, legal advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and predecessors in interest, for good and valuable consideration provided by each of the Released Parties, shall be deemed to provide a full release to each of the Released Parties (and each such Released Party shall be deemed released by each Debtor and its Estate) and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of

2 To receive a distribution pursuant to the Plan, you must include your taxpayer identification number. If you fail to include your taxpayer identification number, any distribution you are entitled to under the Plan will not be made until such number has been received by Debtors.


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federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates; provided, however, that the foregoing Debtor Release shall not operate to waive or release any Claims or Causes of Action of the Debtors or their Estates for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt, any Claims in respect of Avoidance Actions against the Released Parties shall be released. Nothing in the foregoing shall result in any current directors and officers of the Debtors waiving any indemnification Claims against the Debtors or any of their insurance carriers or any rights as beneficiaries of any insurance policies.

Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval,

pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties; (2) a good-faith settlement and compromise of the Claims released by the Debtor Release; (3) in the best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a bar to any of the Debtors’ Estates or the Liquidation Trustee asserting any Claim or Cause of Action released under the Debtor Release.

Section 8.7 of the Plan contains the following Releases by the Releasing Parties (the “Third Party Release”). 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.


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Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Third Party Release, which includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s finding that the Third Party Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties; (2) a good-faith settlement and compromise of the Claims released by the Third Party Release; (3) in the best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a bar to any of the Releasing Parties asserting any Claim released under the Third Party Release.

Nothing in this Section 8.7 shall release any right or obligation of any party under any other provision of this Plan or the Confirmation Order.

Definitions Related to Debtor Release and Third Party Release

“Released Parties” means collectively and in each case in their capacity as such: (a) the Debtors; (b) the Committee and its members; (c) BP; and (d) with respect to each of the foregoing entities in clauses (a) through (c), such entities’ officers, directors, and managers, funds, affiliates, employees, partners, managers, investment advisors, agents, representatives, principals, consultants, attorneys, professional advisors, heirs, executors, successors and assigns (each in their capacity as such), including, without limitation, (i) Todd Sandford, Mark Linzenbold, Stephen Gray, and Raima Jamal, (ii) McDermott Will & Emery LLP, (iii) GlassRatner Capital & Advisory Group LLC, (iv) Miller Buckfire & Co., LLC and Stifel, Nicolaus & Co., Inc., (v) Kilpatrick Townsend & Stockton LLP, (vi) Dundon Advisers LLC, and (vii) Bankruptcy Management Solutions, Inc. (d/b/a Stretto); provided, however for avoidance of doubt, that the “Released Parties” do not include Eli Global LLC, Greg Lindberg, CBLIC, or Global Health Technology Group, LLC, any of their affiliates except the Debtors, or any of the Debtors’ former directors or officers not identified in this Section 1.96.

“Releasing Parties” means collectively and in each case in their capacity as such: (a) the Released Parties identified in subsection (a)–(c) and those Released Parties identified in subsection (d) of the definition of “Released Parties” on behalf of whom the parties identified in subsections (a)–(c) of the definition of “Released Parties” have the authority, including under any agreement or applicable non-bankruptcy law, to grant the Third Party Release set forth in Section 8.7; (b) the holders of all Claims and Interests who vote to accept the Plan; (c) the holders of all Claims or Interests who are deemed to accept the Plan and do not timely submit a duly-completed opt-out form in accordance with the Disclosure Statement Order; (d) the holders of all Claims or Interests whose vote to accept or reject the Plan is solicited but who do not vote either to accept or to reject the Plan; (e) the holders of all Claims or Interests who vote to reject the Plan but do not opt out of granting the releases set forth herein; (f) all other holders of Claims and Interests (including holders of Claims and Interests who are deemed to reject the Plan) who do not timely submit a duly completed opt-out form in accordance with the Disclosure Statement Order; (g) Briarcliff Property Group, LLC, and (h) with respect to each of the foregoing entities, such entities’ current directors, current officers, funds, affiliates, members, employees, partners, managers, investment advisors, agents, representatives, principals, consultants, attorneys, professional advisors, heirs, executors, successors and assigns (each in their capacity as such).


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Section 8.4 of the Plan provides for an exculpation for the Debtors, Committee, and Estate Professionals.

To the extent permitted by Bankruptcy Code section 1125(e), the Debtors, their equity holders, officers, directors, employees and Professionals (including the professional firms and individuals within such firms), and the Creditors’ Committee and its members (acting in such capacity), their respective officers, directors, employees and Professionals (including professional firms and individuals within such firms) shall neither have nor incur any liability to any Person for any act taken or omitted to be taken in connection with or related to the formulation, preparation, dissemination, implementation, administration, funding, confirmation, or consummation of the Plan, the Disclosure Statement, or any contract, instrument, release or other agreement or document created or entered into in connection with the Plan, or any act taken or omitted to be taken during the Bankruptcy Cases, except for acts or omissions as a result of willful misconduct or gross negligence as determined by a Final Order of a court of competent jurisdiction, and in all respects shall be entitled to rely reasonably upon the advice of counsel with respect to their duties and responsibilities under the Plan. From and after the Effective Date, a copy of the Confirmation Order and the Plan shall constitute, and may be submitted as, a complete defense to any Claim or liability released under the Plan. Section 8.5 of the Plan provides for an exculpation for the Liquidation Trustee.

The Liquidation Trustee and its employees, attorneys, accountants, financial advisors, representatives, and agents, each solely in such capacity, shall not have or incur any liability to any Person or Entity for any act or omission in connection with, or arising out of, the Plan or the property to be distributed under the Plan; except for acts or omissions as a result of willful misconduct or gross negligence as determined by a Final Order of a court of competent jurisdiction.

Section 8.1 of the Plan establishes Injunctions.

(a) Injunctions Against Interference with Consummation or Implementation of Plan. All holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments, or Distributions to be made hereunder.

(b) Plan Injunction. Except as otherwise specifically provided for by this Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii) the commencement or continuation of any action, employment of process or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.


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(c) No Bar to Claims Against Third Parties. Holders of Claims or Interests against the Debtors are not barred or otherwise enjoined by the Plan from pursuing any recovery against Persons that are not the Debtors, except as set forth in this the Plan.

Item 3. Acknowledgments. By signing this Ballot, the undersigned acknowledges receipt of the Disclosure Statement and the other applicable solicitation materials and certifies that the undersigned is the claimant or has the power and authority to vote to accept or reject the Plan on behalf of the claimant. The undersigned understands that an otherwise properly completed and executed and timely returned Ballot that does not indicate either an acceptance or a rejection of the Plan, or indicates both an acceptance and a rejection of the Plan, will not be counted.

Name of Creditor Signature If by Authorized Agent, Name and Title Name of Institution Street Address City, State, Zip Code Telephone Number Date Completed


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VOTING INFORMATION AND INSTRUCTIONS FOR COMPLETING BALLOT

1. In the boxes provided in Item 1 of the Ballot, please indicate either your acceptance or rejection of the Plan. Complete the Ballot by providing all of the information requested and sign, date and return it with an original signature promptly either:

(a) Via E-Ballot:

You may access the E-Ballot Platform on the Voting Agent’s website by visiting http://cases.stretto.com/agera, clicking on the “E-Ballot” link and following the instructions set forth on the website, and submitting your consent and vote. E-Ballot ID: _________________________

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

Agera Balloting c/o Stretto 8269 E. 23rd Ave., Ste. 275 Denver, CO 80238

2. Ballots (with original signatures) must be actually received by the Voting Agent on or before June 9, 2020 at 4:00 p.m (Prevailing Eastern Time) (the “Voting Deadline”). If a Ballot is received after the Voting Deadline, it will not be counted. An envelope addressed to the Voting Agent is enclosed for your convenience. Delivery of a Ballot by facsimile, email or any other electronic means (other than E-Ballot) will not be accepted. If neither the “Accept” nor the “Reject” box is checked in Item 1 for an otherwise properly completed and executed and timely returned Ballot, the Ballot will not be counted.

3. Please complete and return the Ballot you receive. Your Claims in Class 1B will be aggregated for voting purposes and you shall have one (1) vote in the aggregated amount. The attached Ballot is designated only for the voting CLASS 1B PREPETITION BP SECURED CLAIM. If you happen to receive more than one Ballot on account of your claims in Class 1B, you must vote all of your Claims within Class 1B under the Plan either to accept or to reject the Plan. Accordingly, if you return more than one Ballot voting different Claims within Class 1B under the Plan and the Ballots are not voted in the same manner, those Ballots will not be counted. An otherwise properly completed and executed and timely returned Ballot that attempts to partially accept and to partially reject the Plan likewise will not be counted.

4. In the event you are the holder of a Claim, your Claim has been temporarily allowed solely for purposes of voting to accept or to reject the Plan in accordance with certain tabulation rules (the “Tabulation Rules”) approved by the Bankruptcy Court. The Tabulation Rules are set forth in the Disclosure Statement Order. The temporary allowance of your Claim for voting purposes does not constitute an allowance of your Claim for purposes of distribution under the Plan and is without prejudice to the rights of the Debtors in any other context (e.g., the right to contest the amount or validity of any Claim for purposes of allowance under the Plan). If you wish to challenge the temporary allowance of the amount of your Claim for Plan voting purposes, you must file a motion pursuant to Rule 3018(a) of the Federal Rules of Bankruptcy Procedure for an order temporarily allowing your Claim in a different amount or classification


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for purposes of voting to accept or reject the Plan and serve such motion on the Debtors so that it is received not later than June 9, 2020 at 4:00 p.m. (Prevailing Eastern Time). Unless the Bankruptcy Court orders otherwise, your Claim will not be counted as a vote in excess of the amount as determined in accordance with the Tabulation Rules, regardless of the amount identified in Item 1 of the Ballot. If a lesser amount is identified in Item 1 of the Ballot, your Claim will be counted as a vote in such lesser amount.

5. The Ballot does not constitute, and will not be deemed, a Proof of Claim or an assertion of a Claim or Interest.

6. If you cast more than one Ballot voting the same Claim prior to the Voting Deadline, the latest received valid Ballot will supersede any and all prior Ballots.

7. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR ADVICE, OR TO MAKE ANY REPRESENTATION, OTHER THAN AS CONTAINED IN THE MATERIALS MAILED WITH THIS BALLOT OR OTHER MATERIALS AUTHORIZED BY THE BANKRUPTCY COURT.

8. PLEASE RETURN YOUR BALLOT PROMPTLY.

9. IF YOU HAVE RECEIVED A DAMAGED BALLOT OR HAVE LOST YOUR BALLOT, OR IF YOU HAVE ANY QUESTIONS CONCERNING THIS BALLOT OR THE VOTING PROCEDURES, PLEASE CONTACT THE VOTING AGENT BY TELEPHONE AT (877) 273-7276. THE VOTING AGENT IS NOT AUTHORIZED TO PROVIDE, AND WILL NOT PROVIDE, LEGAL ADVICE.


Exhibit B

Ballot – Class 2



) Case No. 19-23802 (RDD)

Debtors. ) )



CLASS 2: GENERAL UNSECURED CLAIMS






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Item 1. Class Vote. The undersigned, a holder of a Class 2 General Unsecured Claim as of May 6, 2020, the voting record date established by the Bankruptcy Court, in the amount set forth below, votes to (check one box):


Voting Amount: $_________________


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The holder of the Class 2 General Unsecured Claim identified in Item 1 elects to:






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5







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(d) Injunctions Against Interference with Consummation or Implementation of Plan. All holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments, or Distributions to be made hereunder.

(e) Plan Injunction. Except as otherwise specifically provided for by this Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii) the commencement or continuation of any action, employment of process or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.


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(f) No Bar to Claims Against Third Parties. Holders of Claims or Interests against the Debtors are not barred or otherwise enjoined by the Plan from pursuing any recovery against Persons that are not the Debtors, except as set forth in this the Plan.




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(c) Via E-Ballot:


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



3. Please complete and return the Ballot you receive. Your Claims in Class 2 will be aggregated for voting purposes and you shall have one (1) vote in the aggregated amount. The attached Ballot is designated only for voting CLASS 2 GENERAL UNSECURED CLAIMS. If you happen to receive more than one Ballot on account of your claims in Class 1B, you must vote all of your Claims within Class 2 under the Plan either to accept or to reject the Plan. Accordingly, if you return more than one Ballot voting different Claims within Class 2 under the Plan and the Ballots are not voted in the same manner, those Ballots will not be counted. An otherwise properly completed and executed and timely returned Ballot that attempts to partially accept and to partially reject the Plan likewise will not be counted.



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Exhibit C

Ballot – Class 3



) Case No. 19-23802 (RDD)

Debtors. ) )



CLASS 3: BP DEFICIENCY CLAIM AND BP SUBORDINATED CLAIM






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Item 1. Class Vote. The undersigned, a holder of a Class 3 BP Deficiency Claim or BP Subordinated Claim as of May 6, 2020, the voting record date established by the Bankruptcy Court, in the amount set forth below, votes to (check one box):


Voting Amount: $_________________


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AS A “RELEASING PARTY” UNDER THE PLAN, YOU ARE DEEMED TO PROVIDE THE RELEASES CONTAINED IN ARTICLE 8 OF THE PLAN. YOU MAY CHECK THE BOX BELOW TO INDICATE THAT YOU WISH TO ELECT NOT TO GRANT THE RELEASES CONTAINED IN ARTICLE 8 OF THE PLAN. YOU WILL NOT BE CONSIDERED A “RELEASING PARTY” UNDER THE PLAN ONLY IF (I) THE BANKRUPTCY COURT DETERMINES THAT YOU HAVE THE RIGHT TO OPT OUT OF THE RELEASES AND ONLY IF (II) YOU CHECK THE BOX BELOW AND (A) SUBMIT THE BALLOT BUT ABSTAIN FROM VOTING TO ACCEPT OR REJECT THE PLAN OR (B) VOTE TO REJECT THE PLAN. REGARDLESS OF WHETHER THE BANKRUPTCY COURT DETERMINES THAT YOU HAVE THE RIGHT TO OPT OUT OF THE RELEASES, IF YOU (A) VOTE TO ACCEPT THE PLAN, (B) FAIL TO SUBMIT A BALLOT BY THE VOTING DEADLINE, (C) SUBMIT THE BALLOT AND ABSTAIN FROM VOTING TO ACCEPT OR REJECT THE PLAN BUT FAIL TO CHECK THE BOX BELOW, OR (D) VOTE TO REJECT THE PLAN, BUT FAIL TO CHECK THE BOX BELOW, IN EACH CASE, YOU WILL BE DEEMED TO CONSENT TO THE RELEASES SET FORTH IN ARTICLE 8 OF THE PLAN. The holder of the Class 3 BP Deficiency Claim or BP Subordinated Claim identified in Item 1 elects to:



Effective as of the Effective Date, without in any manner limiting or altering any releases granted to the Postpetition Secured Party and Senior Lien Secured Party under the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective affiliates, and each of their respective former, current, or future officers, employees, directors, agents, representatives, owners, members, partners, financial advisors, legal advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and predecessors in interest, for good and valuable consideration provided by each of the Released Parties, shall be deemed to provide a full release to each of the Released Parties (and each such Released Party shall be deemed released by each Debtor and its Estate) and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the



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Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates; provided, however, that the foregoing Debtor Release shall not operate to waive or release any Claims or Causes of Action of the Debtors or their Estates for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt, any Claims in respect of Avoidance Actions against the Released Parties shall be released. Nothing in the foregoing shall result in any current directors and officers of the Debtors waiving any indemnification Claims against the Debtors or any of their insurance carriers or any rights as beneficiaries of any insurance policies.





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pursuant to Bankruptcy Rule 9019, of the Third Party Release, which includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s finding that the Third Party Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties; (2) a good-faith settlement and compromise of the Claims released by the Third Party Release; (3) in the best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a bar to any of the Releasing Parties asserting any Claim released under the Third Party Release.




“Releasing Parties” means collectively and in each case in their capacity as such: (a) the Released Parties identified in subsection (a)–(c) and those Released Parties identified in subsection (d) of the definition of “Released Parties” on behalf of whom the parties identified in subsections (a)–(c) of the definition of “Released Parties” have the authority, including under any agreement or applicable non-bankruptcy law, to grant the Third Party Release set forth in Section 8.7; (b) the holders of all Claims and Interests who vote to accept the Plan; (c) the holders of all Claims or Interests who are deemed to accept the Plan and do not timely submit a duly-completed opt-out form in accordance with the Disclosure Statement Order; (d) the holders of all Claims or Interests whose vote to accept or reject the Plan is solicited but who do not vote either to accept or to reject the Plan; (e) the holders of all Claims or Interests who vote to reject the Plan but do not opt out of granting the releases set forth herein; (f) all other holders of Claims and Interests (including holders of Claims and Interests who are deemed to reject the Plan) who do not timely submit a duly completed opt-out form in accordance with the Disclosure Statement Order; (g) Briarcliff Property Group, LLC, and (h) with respect to each of the foregoing entities, such entities’ current directors, current officers, funds, affiliates, members, employees, partners,


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managers, investment advisors, agents, representatives, principals, consultants, attorneys, professional advisors, heirs, executors, successors and assigns (each in their capacity as such).





(g) Injunctions Against Interference with Consummation or Implementation of Plan. All holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments, or Distributions to be made hereunder.

(h) Plan Injunction. Except as otherwise specifically provided for by this Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, 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


7

enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.

(i) No Bar to Claims Against Third Parties. Holders of Claims or Interests against the Debtors are not barred or otherwise enjoined by the Plan from pursuing any recovery against Persons that are not the Debtors, except as set forth in this the Plan.




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(e) Via E-Ballot:


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



3. Please complete and return the Ballot you receive. Your Claims in Class 3 will be aggregated for voting purposes and you shall have one (1) vote in the aggregated amount. The attached Ballot is designated only for the voting CLASS 3 BP DEFICIENCY CLAIM and BP SUBORDINATED CLAIM. If you happen to receive more than one Ballot on account of your claims in Class 3, you must vote all of your Claims within Class 3 under the Plan either to accept or to reject the Plan. Accordingly, if you return more than one Ballot voting different Claims within Class 3 under the Plan and the Ballots are not voted in the same manner, those Ballots will not be counted. An otherwise properly completed and executed and timely returned Ballot that attempts to partially accept and to partially reject the Plan likewise will not be counted.

4. In the event you are the holder of a Claim, your Claim has been temporarily allowed solely for purposes of voting to accept or to reject the Plan in accordance with certain tabulation rules (the “Tabulation Rules”) approved by the Bankruptcy Court. The Tabulation Rules are set forth in the Disclosure Statement Order. The temporary allowance of your Claim for voting purposes does not constitute an allowance of your Claim for purposes of distribution under the Plan and is without prejudice to the rights of the Debtors in any other context (e.g., the right to contest the amount or validity of any Claim for purposes of allowance under the Plan). If you wish to challenge the temporary allowance of the amount of your Claim for Plan voting purposes, you must file a motion pursuant to Rule 3018(a) of the Federal Rules of Bankruptcy


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Procedure for an order temporarily allowing your Claim in a different amount or classification for purposes of voting to accept or reject the Plan and serve such motion on the Debtors so that it is received not later than June 9, 2020 at 4:00 p.m. (Prevailing Eastern Time). Unless the Bankruptcy Court orders otherwise, your Claim will not be counted as a vote in excess of the amount as determined in accordance with the Tabulation Rules, regardless of the amount identified in Item 1 of the Ballot. If a lesser amount is identified in Item 1 of the Ballot, your Claim will be counted as a vote in such lesser amount.







Exhibit D

Ballot – Class 4



) Case No. 19-23802 (RDD)

Debtors. ) )



CLASS 4: PREPETITION CBLIC CLAIMS






2





Item 1. Class Vote. The undersigned, a holder of a Class 4 Prepetition CBLIC Claim as of May 6, 2020, the voting record date established by the Bankruptcy Court, in the amount set forth below, votes to (check one box):


Voting Amount: $_________________


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The holder of the Class 4 Prepetition CBLIC Claim identified in Item 1 elects to:






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5







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(j) Injunctions Against Interference with Consummation or Implementation of Plan. All holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments, or Distributions to be made hereunder.

(k) Plan Injunction. Except as otherwise specifically provided for by this Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii) the commencement or continuation of any action, employment of process or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.


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(l) No Bar to Claims Against Third Parties. Holders of Claims or Interests against the Debtors are not barred or otherwise enjoined by the Plan from pursuing any recovery against Persons that are not the Debtors, except as set forth in this the Plan.




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(g) Via E-Ballot:


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



3. Please complete and return the Ballot you receive. Your Claims in Class 4 will be aggregated for voting purposes and you shall have one (1) vote in the aggregated amount. The attached Ballot is designated only for voting CLASS 4 PREPETITION CBLIC CLAIMS. If you happen to receive more than one Ballot on account of your claims in Class 4, you must vote all of your Claims within Class 4 under the Plan either to accept or to reject the Plan. Accordingly, if you return more than one Ballot voting different Claims within Class 4 under the Plan and the Ballots are not voted in the same manner, those Ballots will not be counted. An otherwise properly completed and executed and timely returned Ballot that attempts to partially accept and to partially reject the Plan likewise will not be counted.



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Exhibit E

Opt-Out Notice

(For Holders of Claims Deemed to Accept the Plan)



) Case No. 19-23802 (RDD)

Debtors. ) )


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 DEADLINE TO OPT OUT OF THE THIRD PARTY RELEASE DESCRIBED HEREIN IS JUNE 9, 2020 AT 4:00 P.M. (PREVAILING EASTERN TIME). YOUR FORM MUST BE ACTUALLY RECEIVED BY THIS DEADLINE TO BE CONSIDERED TIMELY.

This notice of opt-out form (this “Opt-Out Notice”) is submitted to you to provide you

with the option of opting out of certain release provisions (described below) set forth in the Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., dated May 9, 2020 (including all exhibits thereto and as may be amended or supplemented from time to time, the “Plan”) submitted by Agera Energy LLC and the above-captioned debtors, as debtors and debtors in possession (collectively, the “Debtors”) and as described in the related Disclosure Statement (as may be amended or supplemented from time to time, the “Disclosure Statement”) approved by Order (the “Disclosure Statement Order”) of the United States Bankruptcy Court for



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the Southern District of New York (the “Bankruptcy Court”). Capitalized terms used but not otherwise defined herein have the meanings given to them in the Plan.

Under the Plan, holders of Administrative Expense Claims, Priority Tax Claims, Non-Tax Priority Claims, and Other Secured Claims will not be impaired. Thus, in accordance with Bankruptcy Code section 1126(f), you are conclusively presumed to accept the Plan and you are not entitled to vote on the Plan.

A hearing to consider confirmation of the Plan has been scheduled for June 12, 2020 at

2:00 p.m. (Prevailing Eastern Time). The Bankruptcy Court established June 9, 2020, at 4:00 p.m. (Prevailing Eastern Time) as the last date and time for filing and serving objections to confirmation of the Plan (the “Plan Objection Deadline”). Objections not filed and served by the Plan Objection Deadline will not be considered by the Bankruptcy Court. In order to be considered by the Bankruptcy Court, objections, if any, to the Plan, must (a) be in writing, (b) state the name and address of the objecting party and the amount and nature of the Claim of such party, (c) state with particularity the basis and nature of any objection or proposed modification, and (d) be filed with the Clerk of the Bankruptcy Court and served so that they are actually received on or before the Plan Objection Deadline by:

(a) Counsel to the Debtors: (b) Counsel to the Official Committee of Unsecured Creditors:

McDermott Will & Emery LLP 340 Madison Avenue New York, NY 10173 Attn: Darren Azman Ravi Vohra

Kilpatrick Townsend & Stockton LLP The Grace Building 1114 Avenue of the Americas New York, NY 10036-7703 Attn: Todd C. Meyers Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 Attn: Colin M. Bernardino

(c) The United States Trustee:

(d) Counsel to BP:

Office of the United States Trustee U.S. Federal Office Building 201 Varick Street New York, New York 10004 Attention: Andrea Beth Schwartz Shannon Scott

Haynes and Boone, LLP 1221 McKinney Street Suite 2100 Houston, TX 77010 Attn: Kathryn Shurin Kelli Stephenson Norfleet

The Bankruptcy Court will consider only written objections filed and served in

accordance with the requirements set forth above by the Plan Objection Deadline. Objections not timely filed and served in accordance with the provisions of this Notice will not be heard and


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will be overruled.

If you would like to obtain a copy of the Disclosure Statement, the Plan, or related documents, you should contact Stretto at 8269 E. 23rd Ave., Ste 275, Denver, CO 80238, or by telephone at (877) 273-7276. Copies of the Disclosure Statement are also available for inspection during regular business hours at the Office of the Clerk of the Bankruptcy Court, Southern District of New York, 300 Quarropas Street, Room 248, White Plains, NY 10601, and may be viewed for a fee on the internet at the Bankruptcy Court’s website (http://www.nysb.uscourts.gov/) by following the directions for accessing the ECF system on such website. Copies of the same can also be obtained free of charge by visiting the website of Stretto at http://cases.stretto.com/agera.

ARTICLE 8 OF THE PLAN CONTAINS RELEASE, INJUNCTION, AND EXCULPATION PROVISIONS, AND SECTION 8.7 CONTAINS A THIRD PARTY RELEASE, WHICH IS ALSO SET FORTH ON ANNEX 1 HERETO. YOU ARE ADVISED TO REVIEW AND CONSIDER THIS PROVISION CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED UNDER THE PLAN. PARTIES RECEIVING THIS NON-VOTING STATUS NOTICE (DEEMED TO ACCEPT) MAY OPT OUT OF THE THIRD PARTY RELEASE BY CHECKING THE BOX BELOW SPECIFICALLY PROVIDING FOR THE REJECTION OF THE THIRD PARTY RELEASE.

HOW TO OPT OUT OF THE THIRD PARTY RELEASE. 1. If you wish to make an election to opt out of the Third Party Release contained in Section

8.7 of the Plan and set forth on Annex 1 hereto, check the box in Item 1 below. 2. Review the certifications contained in Item 2. 3. Sign and date this Opt-Out Notice and complete the other required information in the

applicable area below. 4. For your election to opt out of the release provisions by mail to be considered timely,

your Opt-Out Notice must be properly completed and actually received by the Stretto (the “Voting Agent”) no later than June 9, 2020, at 4:00 p.m. (Prevailing Eastern Time). You may use the postage-paid envelope provided or send your Opt-Out Notice to the following address:


Item 1. Release.

IF YOU DO NOT OPT OUT OF THE RELEASE PROVISIONS BY CHECKING THE BOX BELOW AND PROPERLY AND TIMELY SUBMITTING THIS OPT-OUT NOTICE, YOU WILL BE DEEMED TO HAVE UNCONDITIONALLY, IRREVOCABLY, AND FOREVER RELEASED AND DISCHARGED THE RELEASED PARTIES (AS DEFINED IN THE PLAN) FROM, AMONG OTHER THINGS, ANY AND ALL CAUSES OF ACTION (AS DEFINED IN THE PLAN) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE PLAN. IF YOU WOULD OTHERWISE BE


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ENTITLED TO A RELEASE UNDER SECTION 8.7 OF THE PLAN, BUT YOU DO NOT GRANT THE RELEASES CONTAINED IN SECTION 8.7 OF THE PLAN, THEN YOU SHALL NOT RECEIVE THE BENEFIT OF THE RELEASES SET FORTH IN SECTION 8.7 OF THE PLAN. FOR THE AVOIDANCE OF DOUBT, THE NONRELEASED PARTIES, IN THEIR CAPACITY AS SUCH, SHALL NOT BE ENTITLED TO ANY RELEASE UNDER THE PLAN.


Item 2. Certifications.

By returning this Opt-Out Notice, the holder of the Claim(s) deemed to accept identified below certifies that (a) it was the holder of an unimpaired Claim or Claim(s) as of May 6, 2020 and/or it has full power and authority to opt out of the Third Party Release for the unimpaired Claim(s) with respect to such unimpaired Claim(s) and (b) it understands the scope of the Third Party Release.

YOUR RECEIPT OF THIS OPT-OUT NOTICE DOES NOT SIGNIFY THAT YOUR CLAIM HAS BEEN OR WILL BE ALLOWED.



Annex 1

Third Party Release

Releases by Releasing Parties.

Effective as of the Effective Date, the Releasing Parties shall be deemed to provide a full release to the Released Parties and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates.




“Released Parties” means collectively and in each case in their capacity as such: (a) the Debtors; (b) the Committee and its members; (c) BP; and (d) with respect to each of the foregoing entities in clauses (a) through (c), such entities’ officers, directors, and managers, funds, affiliates, employees, partners, managers, investment advisors, agents, representatives, principals, consultants, attorneys, professional advisors, heirs, executors, successors and assigns (each in their capacity as such), including, without limitation, (i) Todd Sandford, Mark Linzenbold, Stephen Gray, and Raima Jamal, (ii) McDermott Will & Emery LLP, (iii) GlassRatner Capital & Advisory Group LLC, (iv) Miller Buckfire & Co., LLC and Stifel, Nicolaus & Co., Inc., (v) Kilpatrick Townsend & Stockton LLP, (vi) Dundon Advisers LLC, and (vii) Bankruptcy Management Solutions, Inc. (d/b/a Stretto); provided, however for avoidance of doubt, that the “Released Parties” do not include Eli Global LLC, Greg Lindberg, CBLIC, or Global Health


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Technology Group, LLC, any of their affiliates except the Debtors, or any of the Debtors’ former directors or officers not identified in this Section 1.96.



Exhibit F

Opt-Out Notice

(For Holders of Interests Deemed to Reject the Plan)



) Case No. 19-23802 (RDD)

Debtors. ) )


NOTICE OF OPT-OUT FORM TO HOLDERS OF INTERESTS DEEMED TO REJECT THE SECOND AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF AGERA ENERGY LLC, ET AL. THE DEADLINE TO OPT OUT OF THE THIRD PARTY RELEASE DESCRIBED HEREIN IS JUNE 9, 2020 AT 4:00 P.M. (PREVAILING EASTERN TIME). YOUR FORM MUST BE ACTUALLY RECEIVED BY THIS DEADLINE TO BE CONSIDERED TIMELY.

This notice of opt-out form (this “Opt-Out Notice”) is submitted to you to provide you with the option of opting out of certain release provisions (described below) set forth in the Second Amended Joint Chapter 11 Plan of Liquidation of Agera Energy LLC, et al., dated May 9, 2020 (including all exhibits thereto and as may be amended or supplemented from time to time, the “Plan”) submitted by Agera Energy LLC and the above-captioned debtors, as debtors and debtors in possession (collectively, the “Debtors”) and as described in the related Disclosure Statement (as may be amended or supplemented from time to time, the “Disclosure Statement”) approved by Order (the “Disclosure Statement Order”) of the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”). Capitalized terms used but not



2

otherwise defined herein have the meanings given to them in the Plan.

Under the Plan, holders of Interests will not receive or retain any property under the Plan. Thus, in accordance with Bankruptcy Code section 1126(g), you are conclusively presumed to reject the Plan and you are not entitled to vote on the Plan.

A hearing to consider confirmation of the Plan has been scheduled for June 12, 2020 at

2:00 p.m. (Prevailing Eastern Time). The Bankruptcy Court established June 9, 2020, at 4:00 p.m. (Prevailing Eastern Time) as the last date and time for filing and serving objections to confirmation of the Plan (the “Plan Objection Deadline”). Objections not filed and served by the Plan Objection Deadline will not be considered by the Bankruptcy Court. In order to be considered by the Bankruptcy Court, objections, if any, to the Plan, must (a) be in writing, (b) state the name and address of the objecting party and the amount and nature of the Interest of such party, (c) state with particularity the basis and nature of any objection or proposed modification, and (d) be filed with the Clerk of the Bankruptcy Court and served so that they are actually received on or before the Plan Objection Deadline by: (a) Counsel to the Debtors: (b) Counsel to the Official Committee of

Unsecured Creditors: McDermott Will & Emery LLP 340 Madison Avenue New York, NY 10173 Attn: Darren Azman Ravi Vohra



(d) Counsel to BP:



The Bankruptcy Court will consider only written objections filed and served in

accordance with the requirements set forth above by the Plan Objection Deadline. Objections not timely filed and served in accordance with the provisions of this Notice will not be heard and will be overruled.


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If you would like to obtain a copy of the Disclosure Statement, the Plan, or related documents, you should contact Stretto at 8269 E. 23rd Ave., Ste 275, Denver, CO 80238, or by telephone at (877) 273-7276. Copies of the Disclosure Statement are also available for inspection during regular business hours at the Office of the Clerk of the Bankruptcy Court, Southern District of New York, 300 Quarropas Street, Room 248, White Plains, NY 10601, and may be viewed for a fee on the internet at the Bankruptcy Court’s website (http://www.nysb.uscourts.gov/) by following the directions for accessing the ECF system on such website. Copies of the same can also be obtained free of charge by visiting the website of Stretto at http://cases.stretto.com/agera.

ARTICLE 8 OF THE PLAN CONTAINS RELEASE, INJUNCTION, AND EXCULPATION PROVISIONS, AND SECTION 8.7 CONTAINS A THIRD PARTY RELEASE, WHICH IS ALSO SET FORTH ON ANNEX 1 HERETO. YOU ARE ADVISED TO REVIEW AND CONSIDER THIS PROVISION CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED UNDER THE PLAN. PARTIES RECEIVING THIS NON-VOTING STATUS NOTICE (DEEMED TO REJECT) MAY OPT OUT OF THE THIRD PARTY RELEASE BY CHECKING THE BOX BELOW SPECIFICALLY PROVIDING FOR THE REJECTION OF THE THIRD PARTY RELEASE.

HOW TO OPT OUT OF THE THIRD PARTY RELEASE. 1. If you wish to make an election to opt out of the Third Party Release contained in Section

8.7 of the Plan and set forth on Annex 1 hereto, check the box in Item 1 below. 2. Review the certifications contained in Item 2. 3. Sign and date this Opt-Out Notice and complete the other required information in the

applicable area below. 4. For your election to opt out of the release provisions by mail to be considered timely,

your Opt-Out Notice must be properly completed and actually received by the Stretto (the “Voting Agent”) no later than June 9, 2020, at 4:00 p.m. (Prevailing Eastern Time). You may use the postage-paid envelope provided or send your Opt-Out Notice to the following address:


Item 1. Release.

IF YOU DO NOT OPT OUT OF THE RELEASE PROVISIONS BY CHECKING THE BOX BELOW AND PROPERLY AND TIMELY SUBMITTING THIS OPT-OUT NOTICE, YOU WILL BE DEEMED TO HAVE UNCONDITIONALLY, IRREVOCABLY, AND FOREVER RELEASED AND DISCHARGED THE RELEASED PARTIES (AS DEFINED IN THE PLAN) FROM, AMONG OTHER THINGS, ANY AND ALL CAUSES OF ACTION (AS DEFINED IN THE PLAN) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE PLAN. IF YOU WOULD OTHERWISE BE ENTITLED TO A RELEASE UNDER SECTION 8.7 OF THE PLAN, BUT YOU DO


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NOT GRANT THE RELEASES CONTAINED IN SECTION 8.7 OF THE PLAN, THEN YOU SHALL NOT RECEIVE THE BENEFIT OF THE RELEASES SET FORTH IN SECTION 8.7 OF THE PLAN. FOR THE AVOIDANCE OF DOUBT, THE NONRELEASED PARTIES, IN THEIR CAPACITY AS SUCH, SHALL NOT BE ENTITLED TO ANY RELEASE UNDER THE PLAN.


Item 2. Certifications.

By returning this Opt-Out Notice, the holder of the Interest(s) deemed to reject identified below certifies that (a) it was the holder of an impaired Interest or Interest(s) as of May 6, 2020 and/or it has full power and authority to opt out of the Third Party Release for the impaired Interest(s) with respect to such impaired Interest(s) and (b) it understands the scope of the Third Party Release.

YOUR RECEIPT OF THIS OPT-OUT NOTICE DOES NOT SIGNIFY THAT YOUR INTEREST HAS BEEN OR WILL BE ALLOWED.



Annex 1

Third Party Release








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Exhibit G

Confirmation Hearing Notice



) Case No. 19-23802 (RDD)

Debtors. ) )


NOTICE OF (A) HEARING TO CONFIRM PLAN OF

LIQUIDATION AND (B) DATE BY WHICH TO SUBMIT OBJECTIONS

BY ORDER OF THE UNITED STATES BANKRUPTCY COURT:

PLEASE TAKE NOTICE that a hearing to confirm the Second Amended Joint Chapter

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

scheduled by the Bankruptcy Court, and the following deadlines and procedures have been

established with respect thereto:

HEARING TO CONFIRM PLAN OF LIQUIDATION

1. A hearing to confirm the Plan (the “Confirmation Hearing”) 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. The Confirmation Hearing may



2

be continued from time to time by announcing such continuance in open court or otherwise, all

without further notice to parties in interest.

ESTABLISHMENT OF OBJECTION DEADLINE AND PROCEDURES

2. The Bankruptcy Court established June 9, 2020, at 4:00 p.m. (Prevailing Eastern

Time) as the last date and time for filing and serving objections to confirmation of the Plan (the

“Plan Objection Deadline”). Objections not filed and served by the Plan Objection Deadline in

the manner set forth in paragraph 3 below will not be considered by the Bankruptcy Court.

3. In order to be considered by the Bankruptcy Court, objections, if any, to the Plan,

must (a) be in writing, (b) state the name and address of the objecting party and the amount and

nature of the Claim or Interest of such party, (c) state with particularity the basis and nature of

any objection or proposed modification, and (d) be filed with the Clerk of the Bankruptcy Court

and served so that they are actually received on or before the Plan Objection Deadline by:





(d) Counsel to BP:




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4. The Bankruptcy Court will consider only written objections filed and served in

accordance with paragraph 3 above by the Plan Objection Deadline. Objections not timely filed

and served in accordance with the provisions of this Notice will not be heard and will be

overruled. RELEASE, INJUNCTION, AND EXCULPATION PROVISIONS

5. ARTICLE 8 OF THE PLAN CONTAINS RELEASE, INJUNCTION, AND

EXCULPATION PROVISIONS, AND SECTION 8.7 CONTAINS A THIRD PARTY

RELEASE, WHICH PROVISIONS ARE ALSO SET FORTH ON ANNEX 1 HERETO.

THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THESE PROVISIONS

CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED UNDER THE PLAN.

ADDITIONAL INFORMATION

6. If you would like to obtain a copy of the Disclosure Statement, the Plan, or related

documents, you should contact Stretto at 8269 E. 23rd Ave., Ste 275, Denver, CO 80238, or by

telephone at (877) 273-7276. Copies of the Disclosure Statement are also available for

inspection during regular business hours at the Office of the Clerk of the Bankruptcy Court,

Southern District of New York, 300 Quarropas Street, Room 248, White Plains, NY 10601, and

may be viewed for a fee on the internet at the Bankruptcy Court’s website

(http://www.nysb.uscourts.gov/) by following the directions for accessing the ECF system on

such website. Copies of the same can also be obtained free of charge by visiting the website of

Stretto at http://cases.stretto.com/agera.


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Dated: May [•], 2020 Respectfully submitted, New York, NY

MCDERMOTT WILL & EMERY LLP /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]

Counsel to the Debtors and Debtors in Possession


Annex 1

Release, Exculpation, and Injunction Provisions

I. RELEASE PROVISIONS

Releases by the Debtors.

Effective as of the Effective Date, without in any manner limiting or altering any releases granted to the Postpetition Secured Party and Senior Lien Secured Party under the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective affiliates, and each of their respective former, current, or future officers, employees, directors, agents, representatives, owners, members, partners, financial advisors, legal advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and predecessors in interest, for good and valuable consideration provided by each of the Released Parties, shall be deemed to provide a full release to each of the Released Parties (and each such Released Party shall be deemed released by each Debtor and its Estate) and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates; provided, however, that the foregoing Debtor Release shall not operate to waive or release any Claims or Causes of Action of the Debtors or their Estates for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt, any Claims in respect of Avoidance Actions against the Released Parties shall be released. Nothing in the foregoing shall result in any current directors and officers of the Debtors waiving any indemnification Claims against the Debtors or any of their insurance carriers or any rights as beneficiaries of any insurance policies.


pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties; (2) a good-faith settlement and compromise of the Claims released by the Debtor Release; (3) in the best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a


2

bar to any of the Debtors’ Estates or the Liquidation Trustee asserting any Claim or Cause of Action released under the Debtor Release.








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I. EXCULPATION PROVISIONS

Exculpation for Debtors, Committee, and Estate Professionals.

To the extent permitted by Bankruptcy Code section 1125(e), the Debtors, their equity holders, officers, directors, employees and Professionals (including the professional firms and individuals within such firms), and the Creditors’ Committee and its members (acting in such capacity), their respective officers, directors, employees and Professionals (including professional firms and individuals within such firms) shall neither have nor incur any liability to any Person for any act taken or omitted to be taken in connection with or related to the formulation, preparation, dissemination, implementation, administration, funding, confirmation, or consummation of the Plan, the Disclosure Statement, or any contract, instrument, release or other agreement or document created or entered into in connection with the Plan, or any act taken or omitted to be taken during the Bankruptcy Cases, except for acts or omissions as a result of willful misconduct or gross negligence as determined by a Final Order of a court of competent jurisdiction, and in all respects shall be entitled to rely reasonably upon the advice of counsel with respect to their duties and responsibilities under the Plan. From and after the Effective Date, a copy of the Confirmation Order and the Plan shall constitute, and may be submitted as, a complete defense to any Claim or liability released under the Plan. Exculpation for Liquidation Trustee.

The Liquidation Trustee and its employees, attorneys, accountants, financial advisors, representatives, and agents, each solely in such capacity, shall not have or incur any liability to any Person or Entity for any act or omission in connection with, or arising


4

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.

II. INJUNCTION PROVISIONS

General Injunctions.

(m) Injunctions Against Interference with Consummation or Implementation of Plan. All holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments, or Distributions to be made hereunder.

(n) Plan Injunction. Except as otherwise specifically provided for by this Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii) the commencement or continuation of any action, employment of process or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.

No Bar to Claims Against Third Parties. Holders of Claims or Interests against the Debtors are not barred or otherwise enjoined by the Plan from pursuing any recovery against Persons that are not the Debtors, except as set forth in this the Plan.


Exhibit H

Contract/Lease Notice



) Case No. 19-23802 (RDD)

Debtors. ) )


NOTICE TO CONTRACT AND LEASE COUNTERPARTIES

BY ORDER OF THE UNITED STATES BANKRUPTCY COURT:

PLEASE TAKE NOTICE that a hearing to confirm the Second Amended Joint Chapter

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

scheduled by the Bankruptcy Court.

PLEASE TAKE FURTHER NOTICE THAT you are receiving this notice because

you or one of your affiliates is a counterparty to an executory contract or unexpired lease with

the Debtors that has not been assumed or rejected as of May 6, 2020 (the “Voting Record Date”).

Because you may not have scheduled Claims or Claims based upon proofs of Claim pending the



2

disposition of your contract or lease by assumption or rejection, as of the Voting Record Date,

you are not entitled to vote on the Plan.

The following deadlines and procedures have been established with respect thereto:

HEARING TO CONFIRM PLAN OF LIQUIDATION

7. A hearing to confirm the Plan (the “Confirmation Hearing”) will commence on

June 12, 2020, at 2:00 p.m. (Prevailing Eastern Time) in the United States Bankruptcy Court,

Southern District of New York (the “Bankruptcy Court”), 300 Quarropas Street, Courtroom No.

118, White Plains, NY 10601. The Confirmation Hearing may be continued from time to time

by announcing such continuance in open court or otherwise, all without further notice to parties

in interest.

ESTABLISHMENT OF OBJECTION DEADLINE AND PROCEDURES

8. The Bankruptcy Court established June 9, 2020, at 4:00 p.m. (Prevailing

Eastern Time) as the last date and time for filing and serving objections to confirmation of the

Plan (the “Plan Objection Deadline”). Objections not filed and served by the Plan Objection

Deadline in the manner set forth in paragraph 3 below will not be considered by the Bankruptcy

Court.

9. In order to be considered by the Bankruptcy Court, objections, if any, to the Plan,

must (a) be in writing, (b) state the name and address of the objecting party and the amount and

nature of the Claim or Interest of such party, (c) state with particularity the basis and nature of

any objection or proposed modification, and (d) be filed with the Clerk of the Bankruptcy Court

and served so that they are actually received on or before the Plan Objection Deadline by:


3





(d) Counsel to BP:



10. The Bankruptcy Court will consider only written objections filed and served in

accordance with paragraph 3 above by the Plan Objection Deadline. Objections not timely filed

and served in accordance with the provisions of this Notice will not be heard and will be

overruled. RELEASE, INJUNCTION, AND EXCULPATION PROVISIONS

11. ARTICLE 8 OF THE PLAN CONTAINS RELEASE, INJUNCTION, AND

EXCULPATION PROVISIONS, AND SECTION 8.7 CONTAINS A THIRD PARTY

RELEASE, WHICH PROVISIONS ARE ALSO SET FORTH ON ANNEX 1 HERETO.

THUS, YOU ARE ADVISED TO REVIEW AND CONSIDER THESE PROVISIONS

CAREFULLY BECAUSE YOUR RIGHTS MIGHT BE AFFECTED UNDER THE PLAN.


4

ADDITIONAL INFORMATION

12. If you would like to obtain a copy of the Disclosure Statement, the Plan, or related

documents, you should contact Stretto at 8269 E. 23rd Ave., Ste 275, Denver, CO 80238, or by

telephone at (877) 273-7276. Copies of the Disclosure Statement are also available for

inspection during regular business hours at the Office of the Clerk of the Bankruptcy Court,

Southern District of New York, 300 Quarropas Street, Room 248, White Plains, NY 10601, and

may be viewed for a fee on the internet at the Bankruptcy Court’s website

(http://www.nysb.uscourts.gov/) by following the directions for accessing the ECF system on

such website. Copies of the same can also be obtained free of charge by visiting the website of

Stretto at http://cases.stretto.com/agera.

Dated: May [•], 2020 Respectfully submitted, New York, NY

MCDERMOTT WILL & EMERY LLP /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]

Counsel to the Debtors and Debtors in Possession


Annex 1

Release, Exculpation, and Injunction Provisions

II. RELEASE PROVISIONS

Releases by the Debtors.

Effective as of the Effective Date, without in any manner limiting or altering any releases granted to the Postpetition Secured Party and Senior Lien Secured Party under the Final DIP Order, each Debtor on behalf of itself and its Estate, each of their respective affiliates, and each of their respective former, current, or future officers, employees, directors, agents, representatives, owners, members, partners, financial advisors, legal advisors, shareholders, managers, consultants, accountants, attorneys, affiliates, and predecessors in interest, for good and valuable consideration provided by each of the Released Parties, shall be deemed to provide a full release to each of the Released Parties (and each such Released Party shall be deemed released by each Debtor and its Estate) and their respective property from any and all Causes of Action and any other debts, obligations, rights, suits, damages, actions, derivative Claims, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing as of the Effective Date, in law, at equity, or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstance existing or taking place prior to or on the Effective Date arising from or related in any way to the Debtors, the Plan, Briarcliff, the Debtors’ out-of-court restructuring efforts, the Bankruptcy Cases, the Postpetition Supply Facility, the Postpetition Transaction Documents, and the Senior Lien Transaction Documents (as defined in the Final DIP Order) or any matters arising under or in connection with the same, including those that the Debtors would have been legally entitled to assert or that any holder of a Claim against or Interest in the Debtors, or any other Entity could have been legally entitled to assert derivatively or on behalf of the Debtors or their Estates; provided, however, that the foregoing Debtor Release shall not operate to waive or release any Claims or Causes of Action of the Debtors or their Estates for actual fraud or fraud grounded in deliberate recklessness. For the avoidance of doubt, any Claims in respect of Avoidance Actions against the Released Parties shall be released. Nothing in the foregoing shall result in any current directors and officers of the Debtors waiving any indemnification Claims against the Debtors or any of their insurance carriers or any rights as beneficiaries of any insurance policies.


pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference each of the related provisions and definitions contained in the Plan, and further, shall constitute the Bankruptcy Court’s finding that the Debtor Release is: (1) in exchange for the good and valuable consideration provided by the Released Parties; (2) a good-faith settlement and compromise of the Claims released by the Debtor Release; (3) in the best interests of the Debtors’ Estates and all holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a


2

bar to any of the Debtors’ Estates or the Liquidation Trustee asserting any Claim or Cause of Action released under the Debtor Release.








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III. EXCULPATION PROVISIONS

Exculpation for Debtors, Committee, and Estate Professionals.

To the extent permitted by Bankruptcy Code section 1125(e), the Debtors, their equity holders, officers, directors, employees and Professionals (including the professional firms and individuals within such firms), and the Creditors’ Committee and its members (acting in such capacity), their respective officers, directors, employees and Professionals (including professional firms and individuals within such firms) shall neither have nor incur any liability to any Person for any act taken or omitted to be taken in connection with or related to the formulation, preparation, dissemination, implementation, administration, funding, confirmation, or consummation of the Plan, the Disclosure Statement, or any contract, instrument, release or other agreement or document created or entered into in connection with the Plan, or any act taken or omitted to be taken during the Bankruptcy Cases, except for acts or omissions as a result of willful misconduct or gross negligence as determined by a Final Order of a court of competent jurisdiction, and in all respects shall be entitled to rely reasonably upon the advice of counsel with respect to their duties and responsibilities under the Plan. From and after the Effective Date, a copy of the Confirmation Order and the Plan shall constitute, and may be submitted as, a complete defense to any Claim or liability released under the Plan. Exculpation for Liquidation Trustee.

The Liquidation Trustee and its employees, attorneys, accountants, financial advisors, representatives, and agents, each solely in such capacity, shall not have or incur any liability to any Person or Entity for any act or omission in connection with, or arising


4

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.

IV. INJUNCTION PROVISIONS

General Injunctions.

(o) Injunctions Against Interference with Consummation or Implementation of Plan. All holders of Claims or Interests shall be enjoined from commencing or continuing any judicial or administrative proceeding or employing any process against any of the Debtors or the Estates with the intent or effect of interfering with the consummation or implementation of the Plan or the transfers, payments, or Distributions to be made hereunder.

(p) Plan Injunction. Except as otherwise specifically provided for by this Plan, on and after the Effective Date, all Persons shall be enjoined from (i) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, award, decree, or order; (ii) the creation, perfection, or enforcement of any Encumbrance of any kind; (iii) the commencement or continuation of any action, employment of process or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or enjoined under this Plan; and/or (iv) the assertion of any right of setoff, counterclaim, exculpation, or subrogation of any kind, in each case against the Debtors or the Estates to the fullest extent authorized or provided by the Bankruptcy Code.

No Bar to Claims Against Third Parties. Holders of Claims or Interests against the Debtors are not barred or otherwise enjoined by the Plan from pursuing any recovery against Persons that are not the Debtors, except as set forth in this the Plan.


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