594 Proposed Second Amended Joint Plan of Reorganization

THIS IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION OF THE PLAN.
ACCEPTANCES OR REJECTIONS MAY NOT BE SOLICITED UNTIL A DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY COURT. UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF TENNESSEE (NASHVILLE DIVISION) ------------------------------------------------------------------------IN RE: ) Chapter 11 ) CS DIP, LLC (f/k/a Church Street Health Management, LLC), ) Case No. 12-01573 ) SSHC DIP, LLC (f/k/a Small Smiles Holding Company, LLC), ) Case No. 12-01574 ) FNY DIP, LLC (f/k/a FORBA NY, LLC), ) Case No. 12-01575 ) Debtors 1 ) (Jointly Administered ) under Case No. 12-01573) ------------------------------------------------------------------------SECOND AMENDED JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE PROPOSED BY DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS CS DIP, LLC (f/k/a Church Street Health Management, LLC), SSHC DIP, LLC (f/k/a Small Smiles Holding Company, LLC) and FNY DIP, LLC (f/k/a FORBA NY, LLC) and the Official Committee of Unsecured Creditors of each of the foregoing jointly propose this first amended joint chapter 11 plan of reorganization, pursuant to section 1121(a) of title 11 of the United States Code. Reference is made to the Disclosure Statement accompanying the Plan for a discussion of the Debtors history, results of operations, historical financial information and properties, and for a summary and analysis of the Plan. All Holders of Claims and Interests entitled to vote are encouraged to read the Plan and Disclosure Statement in their entirety before voting to Accept or Reject the Plan. ARTICLE I DEFINITIONS AND INTERPRETATION A. Definitions.
The following terms used herein shall have the respective meanings defined below (such meanings to be equally applicable to both the singular and plural):
The Debtors (with the last four digits of each Debtors federal tax identification number and chapter 11 case number) jointly administered under Case No. 12-01573 are: CS DIP, LLC (f/k/a Church Street Health Management, LLC) (2335; Case No. 12-01573), SSHC DIP, LLC (f/k/a Small Smiles Holding Company, LLC) (4993; Case No. 12-01574), FNY DIP, LLC (f/k/a FORBA NY, LLC) (8013; Case No. 12-01575), FS DIP, Inc. (f/k/a FORBA Services Inc.) (6506; Case No. 1201577), and EE DIP, Inc. (f/k/a EEHC, Inc.) (4973; Case No. 12-01576). Only CS DIP, LLC, SSHC DIP, LLC and FNY DIP, LLC propose this Plan, however, as it is anticipated that the cases involving FS DIP, Inc. and EE DIP, Inc. will be converted to Chapter 7 in light of the lack of assets available for distribution in those cases. Further rationale is provided in the Disclosure Statement.
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1.1. 363 Sale means that certain sale of substantially all of the Companys assets to Purchaser in accordance with the Sale Approval Order, which was consummated in these Chapter 11 Cases. 1.2. Administrative Expense Claim means any Claim constituting a cost or expense of administration of the Chapter 11 Cases allowed under sections 503(b) (including 503(b)(9)), 507(a)(2) and 507(b) of the Bankruptcy Code) including any actual and necessary costs and expenses of preserving the Debtors estates, any actual and necessary costs and expenses of operating the Debtors business, any actual and necessary costs and expenses of the administration and implementation of the Plan, any indebtedness or obligations incurred or assumed by the Debtors, as Debtors in Possession, during the Chapter 11 Cases, including, without limitation, for the acquisition or lease of property or an interest in property or the rendition of services, any allowances of compensation and reimbursement of expenses to the extent allowed by Final Order under section 330 or 503 of the Bankruptcy Code, and any fees or charges assessed against the Debtors estates under section 1930 of chapter 123 of title 28 of the United States Code. 1.3. Allowed means that, with respect to a Claim, (i) such Claim has been listed by the Debtors in the Schedules, as such Schedules may be amended by the Debtors from time to time in accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed or contingent and no contrary proof of claim has been filed, (ii) a proof of claim with respect to such Claim has been timely filed and no objection thereto has been interposed within the time period set forth in Article 7 of the Plan or such other applicable period of limitation fixed by the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, or an objection thereto has been interposed and such Claim has been allowed in whole or in part by a Final Order, (iii) such Claim has been expressly allowed by a Final Order or under the Plan, or (iv) such Claim has been compromised, settled, or otherwise resolved pursuant to the authority granted to the Post-Confirmation Debtors pursuant to a Final Order of the Bankruptcy Court or under Article 7 of the Plan; provided, however, that Claims allowed solely for the purpose of voting to accept or reject the Plan pursuant to an order of the Bankruptcy Court shall not be considered Allowed Claims under the Plan. 1.4. Bankruptcy Code means title 11 of the United States Code, as amended from time to time, as applicable to the Chapter 11 Cases. 1.5. Bankruptcy Court means the United States Bankruptcy Court for the Middle District of Tennessee or such other court that exercises jurisdiction over the Chapter 11 Cases. 1.6. Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, as amended from time to time, and any Local Rules of the Bankruptcy Court, as applicable to the Chapter 11 Cases. 1.7. Bar Date means the date that is sixty (60) days after the Effective Date.
1.8. Business Day means any day other than a Saturday, a Sunday, or any other day on which banking institutions in New York, New York are required or authorized to close by law or executive order. 1.9. Carve Out Amount means the first Six Hundred Thousand Dollars ($600,000) of Net Cause of Action Proceeds. 1.10. Cash means legal tender of the United States of America.
1.11. Causes of Action means any action, cause of action, suit, account, controversy, agreement, promise, right to legal remedies, right to equitable remedies, right to payment, and claim, whether known or unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured, unsecured, and whether asserted or assertable directly or
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indirectly or derivatively, in law, equity, or otherwise, and including without limitation any and all avoidance actions under Chapter 5 of the Bankruptcy Code such as 11 U.S.C. 502(d), 544, 545, 547, 548, 549, 550 and 553. This definition of Causes of Action does NOT include the Coverage Litigation. 1.12. Chapter 11 Cases means the cases under chapter 11 of the Bankruptcy Code commenced by the Debtors in the United States Bankruptcy Court for the Middle District of Tennessee, and jointly administered under Case No. 12-01573. 1.13. Claim shall have the meaning ascribed in section 101 of the Bankruptcy Code.
1.14. Claim Approval Structure means the process set forth in Section 4.17(g) of the Plan for holders of Class 5(a) Claims to submit such claims for allowance. 1.15. Claim Distribution Procedures means the process set forth in Section 4.17(g) of the Plan for a distribution to be made to holders of Allowed Class 5(a) Claims. 1.16. Class means any group of Claims or Equity Interests classified by the Plan as set forth in Article III of the Plan. 1.17. Clinic means a professional organization or other Entity owned, managed, or operated by the Debtors that employed or utilized Dentists to provide dental services to patients. 1.18. Clinics Contribution or Indemnity Claim means a Claim that a Clinic has or may assert against one or more of the Debtors relating to or arising from a claim asserted by a patient against such Clinic that is based in whole or in part upon circumstances that may also give rise to a Patient-Related Claim, which Claim is based upon contractual or common law rights of contribution or indemnity. 1.19. Collateral means any property or interest in property of the Debtors estates subject to a Lien, charge, or other encumbrance to secure the payment or performance of a Claim, which Lien, charge, or other encumbrance is not subject to avoidance under the Bankruptcy Code. 1.20. Commencement Date means February 20, 2012.
1.21. Company means, collectively, the Debtors, FS DIP, Inc. (f/k/a FORBA Services, Inc.) (Bankr. M.D. Tenn. Case No. 12-01577), and EE DIP, Inc. (f/k/a EEHC, Inc.) (Bankr. M.D. Tenn. Case No. 12-01576). 1.22. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy Court with respect to the Chapter 11 Cases. 1.23. Confirmation Hearing means the hearing to be held by the Bankruptcy Court regarding confirmation of the Plan in accordance with section 1129 of the Bankruptcy Code, as such hearing may be adjourned or continued from time to time. 1.24. Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code. 1.25. Contingent Claim means any Claim, the liability for which attaches or is dependent upon the occurrence of, or is triggered by, an event, which event has not yet occurred as of the date on which such Claim is sought to be estimated or an objection to such Claim is filed, whether or not such event is within the actual or presumed contemplation of the holder of such Claim and whether or not a relationship between the holder of such Claim and the applicable Debtor now or hereafter exists or previously existed.
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1.26. Coverage Agreement means the Agreement entered into on or about May 12, 2011, between National Union Fire Insurance Company of Pittsburgh, PA and Debtor Small Smiles Holding Company LLC. 1.27. Coverage Litigation means National Union Fire Insurance Company of Pittsburgh, PA. v. Small Smiles Holding Company, LLC, Case No: 3:10-cv-00743, filed in the United States District Court for the Middle District of Tennessee. 1.28. Creditors Committee means the statutory creditors committee appointed pursuant to section 1102 of the Bankruptcy Code in the Chapter 11 Cases, as may be reconstituted from time to time. 1.29. Debtors means CS DIP, LLC (f/k/a Church Street Health Management, LLC) (Case No. 12-01573), SSHC DIP, LLC (f/k/a Small Smiles Holding Company, LLC) (Case No. 12-01574), FNY DIP, LLC (f/k/a FORBA NY, LLC) (Case No. 12-01575). The Definition of Debtors under this Plan does NOT include FS DIP (f/k/a FORBA Services Inc.) (Case No. 12-01577), and EE DIP, Inc. (f/k/a EEHC, Inc.) (Case No. 1201576), which cases are anticipated to be converted to Chapter 7. 1.30. Debtors in Possession means the Debtors in their capacity as debtors in possession in the Chapter 11 Cases pursuant to sections 1101, 1107(a), and 1108 of the Bankruptcy Code. 1.31. Deferred Administrative Claim means any Administrative Expense Claim that is, with the consent of the holder of the Claim and the Creditors Committee, assumed by the Liquidating Trust rather than paid pursuant to Sections 2.1 or 2.2 below. 1.32. Dentist means an individual or professional Entity employed by one or more of the Debtors or the Clinics to provide professional dental services to patients. 1.33. Dentists Contribution or Indemnity Claim means a Claim that a Dentist has or may assert against on or more of the Debtors relating to or arising from a claim asserted by a patient against such Dentist that is based in whole or in part upon circumstances that may also give rise to a Patient-Related Claim, which Claim is based upon contractual or common law rights of contribution or indemnity. 1.34. DIP Financing Order means the Final Order (I) Authorizing the Debtors to (A) Obtain Postpetition Secured Financing and (B) Utilize Cash Collateral, (II) Granting Liens And Superpriority Administrative Expense Status, (III( Granting Adequate Protection, and (IV) Modifying the Automatic Stay entered on March 16, 2012 at docket entry 187 authorizing the Debtors incurrence of certain postpetition financing from the DIP Lenders. 1.35. DIP Lenders means Garrison Loan Agency Services, LLC (and its affiliates) as administrative agent and collateral agent, and such other Prepetition Secured Lenders, as the lenders under the DIP Financing Order and the DIP Financing Documents (as defined in the DIP Financing Order). 1.36. DIP Loan Claims means all Claims arising under the DIP Financing Order, as may be amended or supplemented. 1.37. Disallowed Claim means a Claim or a portion of a Claim that is disallowed by an order of the Bankruptcy Court or any other court of competent jurisdiction. 1.38. Disbursing Agent means such Entity as is designated pursuant to Section 6.5 of the Plan to be a disbursing agent.
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1.39. Disclosure Statement means the first amended disclosure statement with respect to the Plan filed with and approved by the Bankruptcy Court in accordance with section 1125 of the Bankruptcy Code, as such disclosure statement may be amended, modified or supplemented. 1.40. Disputed Claim means any Claim (including any Administrative Expense Claim) against any Debtor, proof of which was timely and properly filed, that is disputed under the Plan or as to which the Debtors have interposed a timely objection and/or request for estimation in accordance with section 502(c) of the Bankruptcy Code and Bankruptcy Rule 3018, which objection and/or request for estimation has not been withdrawn or determined by a Final Order, and any Claim proof of which was required to be filed by order of the Bankruptcy Court but as to which a proof of claim was not timely or properly filed. 1.41. Distribution Record Date means, with respect to holders of all Claims, the date that is three (3) days after the Confirmation Date. 1.42. Effective Date means a Business Day specified by the Debtors on or after the Confirmation Date, on which (i) no stay of the Confirmation Order is in effect and (ii) the conditions to the effectiveness of the Plan specified in Article 10 of the Plan have been satisfied or waived and (iii) which is no later than ninety (90) days after the Confirmation Date, provided that no stay of the Confirmation Order is in effect. 1.43. Entity means a person, a corporation, a general partnership, a limited partnership, a limited liability company, a limited liability partnership, an association, a joint stock company, a joint venture, an estate, a trust, an unincorporated organization, a governmental unit or any subdivision thereof, including the Office of the United States Trustee. 1.44. Equity Interest (or Interest) means the interest of any holder of an equity security or membership interest of any of the Debtors represented by any issued and outstanding shares of common stock or any other instrument evidencing an ownership interest in any of the Debtors, whether or not transferable, or any option, warrant, or right, contractual or otherwise, to acquire any such interest. 1.45. Excess Wind-Down Budget Funds means any unused funds from the Wind-Down Budget attached as Exhibit A to the Sale Approval Order (as may be amended) as of the Confirmation Date but after reserving for and/or paying any Allowed Administrative Expense Claims. 1.46. Final Order means an order or judgment of the Bankruptcy Court entered by the Clerk of the Bankruptcy Court on the docket in the Chapter 11 Cases, that has not been reversed, vacated, or stayed, and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument, or rehearing has expired, and as to which no appeal, petition for certiorari, or other proceedings for a new trial, reargument, or rehearing shall then be pending, or (ii) if an appeal, writ of certiorari, new trial, reargument, or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, reargument, or rehearing shall have expired; provided, however, that the possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such order shall not cause such order to not be a Final Order. 1.47. First-Tier General Interest means a beneficial interest in the Liquidating Trust issued to holders of Allowed General Unsecured Claims and subject to the terms of the Sale Approval Order. 1.48. General Unsecured Claim means any Claim against any of the Debtors other than an Administrative Expense Claim, a Priority Tax Claim, an Other Priority Claim, a Prepetition First Lien
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Claim, a Prepetition Second Lien Claim, a Prepetition Subordinated Debt Claim, Prepetition Secured Lender Claim, or a Patient-Related Claim. 1.49. Initial Trust Assets means collectively, the Excess Wind-Down Budget Funds, if any, all Causes of Action held by any of the Debtors estates and vested in the Liquidating Trust pursuant to Section 9.6 of the Plan, the right to receive any amounts due to the Debtors or Post-Confirmation Debtors on account of the Insurance Rights or the Coverage Litigation as set forth in Section 5.3 of the Plan, the Equity Interests in the Debtors, and the right to appear on behalf of and in the name of the Debtors to defend, prosecute, protect, manage, compromise, and enforce the Insurance Rights, including the Coverage Litigation. 1.50. Insurance Carriers means any entities that issued or are responsible for any policies of insurance that do or may provide coverage to the Debtors, the Post-Confirmation Debtors, the Clinics, and/or the Dentists for any Patient-Related Claim or any claim or legal action that arises out of the same circumstances as a Patient-Related Claim, including National Union Fire Insurance Company of Pittsburgh, PA, an affiliate of Chartis, Inc. 1.51. Insurance Policies means any and all insurance policies that do or may provide coverage to the Debtors, the Clinics, and / or the Dentists for any Patient-Related Claim or claims that arise out of the same circumstances as may give rise to a Patient-Related Claim. Without limiting the generality of the foregoing, Insurance Policies include Dentists Liability Policy Number DNU3375848 and Dentists Liability Insurance Policy Number DNU6360128, both issued by National Union Fire Insurance Company of Pittsburgh, PA to Small Smiles Holding Company LLC as the first named insured. 1.52. Insurance Rights means any right to defense, indemnification, payment of Claims or any other benefits arising under the Insurance Policies, including any benefit resulting from claims or causes of action against Insurance Carriers for breach of contract, wrongful action or bad faith related to the Insurance Policies or any handling of Claims thereunder including, without limitation, any claims asserted by the Debtors in the Coverage Litigation. 1.53. Intercompany Claim means any Claim against any Debtor held by another Debtor.
1.54. Lien means any charge against or interest in property to secure payment of a debt or performance of an obligation. 1.55. Liquidating Trust means the liquidating trust to be established for the benefit of holders of Allowed Claims and Allowed Equity Interests in accordance with the terms of section 5.3 of this Plan. 1.56. Liquidating Trust Agreement means that certain agreement by and between the Plan Agent and the Liquidating Trustee governing the Liquidating Trust to be filed with the Court prior to the Confirmation Hearing. 1.57. Liquidating Trustee means the individual appointed to be trustee of the Liquidating Trust in accordance with the terms of section 5.3 of this Plan. 1.58. Net Cause of Action Proceeds means amounts received on account of the Causes of Action after deducting any legal fees or other costs incurred in prosecuting the Causes of Action. Net Cause of Action Proceeds does not include any recoveries from the Insurance Rights.
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1.59. Other Priority Claim means any Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code, other than an Administrative Expense Claim, a DIP Loan Claim, or a Priority Tax Claim. 1.60. Other Secured Claim means any Secured Claim other than a Secured Tax Claim or the Prepetition First Lien Facility Claims or the Prepetition Second Lien Facility Claims. 1.61. Patient Interest means a beneficial interest in the Liquidating Trust deemed issued to holders of Class 5(a) Claims on the Effective Date. 1.62. Patient-Related Claim means any Claim against, or remedy or liability sought from any Debtor, whether or not such Claim, remedy or liability is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, whether or not the facts of or legal bases therefor are known or unknown, under any theory of law, equity, admiralty or otherwise (including piercing the corporate veil, alter ego and similar theories), arising out of actual or alleged property damage, death, bodily injury, sickness, disease, medical monitoring or other personal injuries (whether physical, emotional or otherwise) to the extent allegedly arising out of or based on, directly or indirectly, in whole or in part, the provision of dental services by any Debtor or an Entity for which any Debtor allegedly has liability, including any Claim, remedy or liability for compensatory damages (such as loss of consortium, lost wages or other opportunities, wrongful death, medical monitoring, survivorship, proximate, consequential, general and special damages) or punitive damages related thereto, and any Claim under any settlement of a Patient-Related Claim entered into by or on behalf of any Debtor prior to the Commencement Date. 1.63. Plan Documents means the documents to be executed, delivered, assumed, and/or performed in conjunction with the consummation of the Plan on the Effective Date, including the Liquidating Trust Agreement. Each of the Plan Documents to be entered into as of the Effective Date will be included in draft form in the Plan Supplement. 1.64. Plan means this First Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, including the Plan Documents, the Plan Supplement, and the exhibits and schedules hereto and thereto, as the same may be amended or modified from time to time in accordance with the provisions of the Bankruptcy Code and the terms of the Plan. 1.65. Plan Agent means Bradley B. Williams until the Effective Date, and on and after the Effective Date, means the Liquidating Trustee, in his role as administrator of the Plan. 1.66. Plan Supplement means the document (as may be amended, modified or supplemented) containing the forms of documents specified in Section 12.8 of the Plan. 1.67. Date of the Plan. Post-Confirmation Debtors means each of the Debtors, following the Effective
1.68. Prepetition First Lien Claims means Claims of the lenders under the Prepetition First Lien Facility, as set forth in the DIP Financing Order. 1.69. Prepetition First Lien Facility means that certain credit facility of the Debtors in the original principal amount of $131,475,000.00 borrowed under that certain Amended and Restated Credit Agreement dated as of February 1, 2010, that certain Amended and Restated Registered Lease Financing and Purchase Option dated as of February 1, 2010, and any related loan and security documents executed in connection with the foregoing.
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1.70. Prepetition Second Lien Claims means Claims of the lenders under the Prepetition Second Lien Facility, as set forth in the DIP Financing Order. 1.71. Prepetition Second Lien Facility means that certain facility of the Debtors in the original principal amount of $25,000,000.00 borrowed under that certain Second Lien Credit Agreement dated as of February 1, 2010, that certain Amended and Restated Senior Murabaha Facility Agreement dated as of February 1, 2010, and any related loan and security documents executed in connection with the foregoing. 1.72. Prepetition Intercreditor Agreement means that certain Intercreditor Agreement dated as of February 1, 2010 by and between the lenders under the Prepetition First Lien Facility and the Prepetition Second Lien Facility. 1.73. Prepetition Secured Lenders means, collectively, those certain lenders under the Prepetition First Lien Facility and the Prepetition Second Lien Facility. 1.74. Prepetition Subordinated Debt Claims means Claims of the lenders under the Prepetition Subordinated Debt Facility. 1.75. Prepetition Subordinated Debt Facility means that certain subordinated indebtedness of the Debtors, including (i) that certain Subordinated Murabaha Facility Agreement dated as of February 1, 2010 in the original principal amount of $30,000,000.00; (ii) that certain Amended and Restated Subordinated Debt Note Purchase Agreement dated as of February 1, 2010, under which notes in the aggregate principal amount of $31,000,000.00 were issued; and (iii) that certain Amended and Restated Subordinated Murabaha Facility Agreement dated as of February 1, 2010, in the original principal amount of $61,000,000.00; and (iv) any loan and security documents executed in connection with the foregoing. 1.76. Prepetition Subordinated Lenders means those certain lenders under the Prepetition Subordinated Debt Facility. 1.77. Priority Tax Claim means any Claim of a governmental unit of the kind entitled to priority in payment as specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code. 1.78. Purchaser means CSHM LLC, which purchased substantially all of the Companys assets pursuant to the Sale Approval Order. 1.79. Sale Approval Order means that certain Order (I) Authorizing Sale of Substantially All of the Debtors Assets Free and Clear of All Liens, Claims and Encumbrances; (II) Approving the Asset Sale Agreement; and (III) Authorizing the Assumption and Assignment of Executory Contracts and Unexpired Leases entered on May 24, 2012 at docket entry 404. 1.80. Schedules means the schedules of assets and liabilities and the statements of financial affairs filed by the Debtors pursuant to section 521 of the Bankruptcy Code, Bankruptcy Rule 1007, and the Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and statements may be supplemented or amended on or prior to the Effective Date. 1.81. Second-Tier General Interest means a beneficial interest in the Liquidating Trust issued to holders of Allowed Prepetition First Lien Claims, Prepetition Second Lien Claims, and Prepetition Subordinated Debt Claims, subject to the terms of the Sale Approval Order, including that certain waiver of recovery from Net Cause of Action Proceeds up to the Threshold (defined as $600,000 in the Sale Approval Order).
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1.82. Secured Claim means any Claim that is secured by a Lien on Collateral to the extent of the value of such Collateral, as determined in accordance with section 506(a) of the Bankruptcy Code, or, in the event that such Claim is subject to a permissible setoff under section 553 of the Bankruptcy Code, to the extent of such permissible setoff. 1.83. Secured Tax Claim means any Secured Claim that, absent its secured status, would be entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy Code (determined irrespective of any time limitations therein), and including any related Secured Claim for penalties. 1.84. Trust Advisory Committee means the Trust Advisory Committee to be established pursuant to the Liquidating Trust Agreement. 1.85. Unliquidated Claim means any Claim, the amount of liability for which has not been fixed, whether pursuant to agreement, applicable law, or otherwise, as of the date on which such Claim is sought to be estimated. B. Interpretation; Application of Definitions and Rules of Construction.
Unless otherwise specified, all section or exhibit references in the Plan are to the respective section in, or exhibit to, the Plan, as the same may be amended, waived, or modified from time to time. The words herein, hereof, hereto, hereunder, and other words of similar import refer to the Plan as a whole and not to any particular section, subsection, or clause contained therein. The words including or includes shall be without limitation. A term used herein that is not defined herein shall have the meaning ascribed to that term in the Bankruptcy Code. The rules of construction contained in section 102 of the Bankruptcy Code shall apply to the Plan. In the event that a particular term of the Plan (including any exhibits or schedules hereto) conflicts with a particular term of the definitive documentation required to be implemented pursuant to the terms of the Plan or any settlement or other agreement contemplated hereunder, the definitive documentation shall control and shall be binding on the parties thereto. The headings in the Plan are for convenience of reference only and shall not limit or otherwise affect the provisions of the Plan. Timing shall be calculated as set forth in Rule 9006 of the Bankruptcy Rules. All exhibits to the Plan and the Plan Supplement are incorporated into the Plan and shall be deemed to be included in the Plan, regardless of when filed with the Bankruptcy Court. ARTICLE II ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS 2.1. Administrative Expense Claims.
Except to the extent that a holder of an Allowed Administrative Expense Claim agrees to a less favorable treatment, each Allowed Administrative Expense Claim shall be paid by the Post-Confirmation Debtors in full, in Cash, in an amount equal to such Allowed Administrative Expense Claim on or as soon as reasonably practicable following the later to occur of (a) the Effective Date and (b) the date on which such Administrative Expense Claim shall become an Allowed Claim. The holder of an Administrative Expense Claim, other than (i) a claim assumed by the Purchaser or (ii) an Administrative Expense Claim that has been Allowed on or before the Effective Date, must file with the Bankruptcy Court and serve on the Debtors or the Post-Confirmation Debtors, as applicable, and the Office of the United States Trustee (the U.S. Trustee), notice of such Administrative Expense Claim on or prior to the Bar Date. Such notice must include at a minimum (i) the name of the Debtor(s) that are purported to be liable for the Claim, (ii) the name of the holder of the Claim, (iii) the amount of the Claim, and (iv) the basis for the Claim. Failure to file and serve such notice timely and properly will result in the Administrative Expense Claim being forever barred and discharged.
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2.2.
Professional Compensation and Reimbursement Claims.
The Bankruptcy Court shall fix in the Confirmation Order a date for the filing of, and a date to hear and determine, all applications for final allowance of compensation for services rendered or reimbursement of expenses incurred through and including the Confirmation Date under sections 328 and 330 of the Bankruptcy Code or applications for allowance of Administrative Expense Claims arising under section 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code. Unless otherwise agreed to by the claimant and the Debtors or the Post-Confirmation Debtors, as applicable, the Allowed Administrative Expense Claims arising under section 330, 331, 503(b)(2), 503(b)(3), 503(b)(4), and 503(b)(5) of the Bankruptcy Code shall be paid in full, in Cash, as soon as practicable following the later to occur of (a) the Effective Date and (b) the date upon which any such Administrative Expense Claim becomes an Allowed Administrative Expense Claim. The Debtors and the PostConfirmation Debtors, as applicable, are authorized to pay compensation for services rendered or reimbursement of expenses incurred after the Confirmation Date and until the Effective Date in the ordinary course of business and without the need for Bankruptcy Court approval. Final Fee Applications must be filed in accordance with Section 7.2 below. 2.3. DIP Loan Claims.
The DIP Loan Claims were satisfied upon consummation of the 363 Sale and no payment is due based upon the DIP Loan. Accordingly, there is no distribution to the DIP Lenders. 2.4. Priority Tax Claims.
Except to the extent that a holder of an Allowed Priority Tax Claim has been paid by the Debtors prior to the Effective Date or agrees to a less favorable treatment, each holder of an Allowed Priority Tax Claim shall receive, at the sole option of the Debtors or the Post-Confirmation Debtors, (a) Cash in an amount equal to such Allowed Priority Tax Claim on or as soon as reasonably practicable following the later to occur of (i) the Effective Date and (ii) the date on which such Administrative Priority Tax Claim shall become an Allowed Priority Tax Claim, (b) equal semi-annual Cash payments in an aggregate amount equal to such Allowed Priority Tax Claim, together with interest at the applicable non-bankruptcy rate, commencing upon the later of the Effective Date and the date such Priority Tax Claim becomes an Allowed Priority Tax Claim, or as soon thereafter as is practicable and continuing over a period of eighteen (18) months (but in no event exceeding five (5) years from and after the Commencement Date), or (c) such other treatment as shall be determined by the Bankruptcy Court to provide the holder of such Allowed Priority Tax Claim deferred Cash payments having a value, as of the Effective Date, equal to such Allowed Priority Tax Claim. ARTICLE III CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS The following table designates the Classes of Claims against and Equity Interests in the Debtors and specifies which of those Classes are (i) impaired or unimpaired by the Plan and (ii) entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code or deemed to reject the Plan. CLASS Class 1 Class 2(a) Designation Other Priority Claims against all Debtors Prepetition First Lien Claims against CS DIP, LLC STATUS Unimpaired Impaired ENTITLED TO VOTE? No (deemed to accept) Yes
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CLASS Class 2(b) Class 2(c) Class 2(d) Class 2(e) Class 3(a) Class 3(b) Class 3(c) Class 3(d) Class 3(e) Class 4(a) Class 4(b) Class 4(c) Class 4(d) Class 4(e) Class 5(a)
Designation Prepetition Second Lien Claims against CS DIP, LLC General Unsecured Claims against CS, DIP, LLC Prepetition Subordinated Debt Claims against CS DIP, LLC Equity Interests in CS DIP, LLC Prepetition First Lien Claims against SSHC DIP, LLC Prepetition Second Lien Claims against SSHC DIP, LLC General Unsecured Claims against CS, SSHC DIP, LLC Prepetition Subordinated Debt Claims against SSHC DIP, LLC Equity Interests in SSHC DIP, LLC Prepetition First Lien Claims against FNY DIP, LLC Prepetition Second Lien Claims against FNY DIP, LLC General Unsecured Claims against FNY DIP, LLC Prepetition Subordinated Debt Claims against FNY DIP, LLC Equity Interests FNY DIP, LLC Patient-Related Claims against CS DIP; SSHC DIP, LLC; FNY DIP, LLC and all related claims against other entities Dentists Contribution or Indemnity Claims Clinics Contribution or Indemnity Claims
STATUS Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired Impaired
ENTITLED TO VOTE? Yes Yes Yes No (deemed to reject) Yes Yes Yes Yes No (deemed to reject) Yes Yes Yes Yes No (deemed to reject) Yes
Class 5(b) Class 5(c)
Impaired Impaired
Yes Yes
ARTICLE IV TREATMENT OF CLAIMS AND EQUITY INTERESTS 4.1. Class 1: Other Priority Claims against all Debtors
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each holder of an Allowed Other Priority Claim against any of the Debtors is conclusively presumed to have accepted the Plan and is not entitled to vote to accept or reject the Plan. (b)
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against a Debtor agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Allowed Other Priority Claim, Cash in an amount equal to such Allowed Other Priority Claim, on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed. 4.2. Class 2(a): Prepetition First Lien Claims against CS DIP, LLC
(a) Impairment and Voting. Class 2(a) is impaired by the Plan. Each holder of an Allowed Prepetition First Lien Claim against CS DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition First Lien Claim against CS DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(a), 3(a), or 4(a) are not aggregated for calculation of the Second-Tier General Interest). 4.3. Class 2(b): Prepetition Second Lien Claims against CS DIP, LLC
(a) Impairment and Voting. Class 2(b) is impaired by the Plan. Each holder of an Allowed Prepetition Second Lien Claim against CS DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition Second Lien Claim against CS DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(b), 3(b), or 4(b) are not aggregated for calculation of the Second-Tier General Interest). 4.4. Class 2(c): General Unsecured Claims against CS DIP, LLC
(a) Impairment and Voting. Class 2(c) is impaired by the Plan. Each holder of an Allowed General Unsecured Claim against CS DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed General Unsecured Claim against CS DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a First-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed. Note that recoveries on account of First-Tier General Interests for Class 2(c) are also limited to the Net Cause of Action Proceeds that are allocable to the estate of CS DIP, LLC. 4.5. Class 2(d): Prepetition Subordinated Debt Claims against CS DIP, LLC
(a) Impairment and Voting. Class 2(d) is impaired by the Plan. Each holder of an Allowed Prepetition Subordinated Debt Claim against CS DIP, LLC is entitled to vote to accept or reject the Plan. (b)
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Debt Claim against CS DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(d), 3(d), or 4(d) are not aggregated for calculation of the Second-Tier General Interest). 4.6. Class 2(e): Equity Interests in CS DIP, LLC
(a) Impairment and Voting. Class 2(e) is fully impaired by the Plan. Each holder of an Allowed Equity Interest in CS DIP, LLC is NOT entitled to vote to accept or reject the Plan. (b) Distributions. There will be no distribution on account of Equity Interests in CS DIP, LLC. On the Effective Date, all Equity Interests in CS DIP, LLC will be forfeited the existing owners and deemed to be transferred to the Liquidating Trust which shall thereafter be the sole member of CS DIP, LLC. 4.7. Class 3(a): Prepetition First Lien Claims against SSHC DIP, LLC
(a) Impairment and Voting. Class 3(a) is impaired by the Plan. Each holder of an Allowed Prepetition First Lien Claim against SSHC DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition First Lien Claim against SSHC DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(a), 3(a), or 4(a) are not aggregated for calculation of the Second-Tier General Interest). 4.8. Class 3(b): Prepetition Second Lien Claims against SSHC DIP, LLC
(a) Impairment and Voting. Class 3(b) is impaired by the Plan. Each holder of an Allowed Prepetition Second Lien Claim against SSHC DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition Second Lien Claim against SSHC DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(b), 3(b), or 4(b) are not aggregated for calculation of the Second-Tier General Interest). 4.9. Class 3(c): General Unsecured Claims against SSHC DIP, LLC
(a) Impairment and Voting. Class 3(c) is impaired by the Plan. Each holder of an Allowed General Unsecured Claim against SSHC DIP, LLC is entitled to vote to accept or reject the Plan.
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(b) Distributions. Except to the extent that a holder of an Allowed General Unsecured Claim against SSHC DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a First-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed. Note that recoveries on account of First-Tier General Interests for Class 3(c) are also limited to the Net Cause of Action Proceeds that are allocable to the estate of SSHC DIP, LLC. 4.10. Class 3(d): Prepetition Subordinated Debt Claims against SSHC DIP, LLC
(a) Impairment and Voting. Class 3(d) is impaired by the Plan. Each holder of an Allowed Prepetition Subordinated Debt Claim against SSHC DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition Subordinated Debt Claim against SSHC DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(d), 3(d), or 4(d) are not aggregated for calculation of the Second-Tier General Interest). 4.11. Class 3(e): Equity Interests in SSHC DIP, LLC
(a) Impairment and Voting. Class 3(e) is fully impaired by the Plan. Each holder of an Allowed Equity Interest in SSHC DIP, LLC is NOT entitled to vote to accept or reject the Plan. (b) Distributions. There will be no distribution on account of Equity Interests in SSHC DIP, LLC. On the Effective Date, all Equity Interests in SSHC DIP, LLC will be forfeited by the existing owners and deemed to be transferred to the Liquidating Trust which shall thereafter be the sole member of SSHC DIP, LLC. 4.12. Class 4(a): Prepetition First Lien Claims against FNY DIP, LLC
(a) Impairment and Voting. Class 4(a) is impaired by the Plan. Each holder of an Allowed Prepetition First Lien Claim against FNY DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition First Lien Claim against FNY DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(a), 3(a), or 4(a) are not aggregated for calculation of the Second-Tier General Interest). 4.13. Class 4(b): Prepetition Second Lien Claims against FNY DIP, LLC
(a) Impairment and Voting. Class 4(b) is impaired by the Plan. Each holder of an Allowed Prepetition Second Lien Claim against FNY DIP, LLC is entitled to vote to accept or reject the Plan.
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(b) Distributions. Except to the extent that a holder of an Allowed Prepetition Second Lien Claim against FNY DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(b), 3(b), or 4(b) are not aggregated for calculation of the Second-Tier General Interest). 4.14. Class 4(c): General Unsecured Claims against FNY DIP, LLC
(a) Impairment and Voting. Class 4(c) is impaired by the Plan. Each holder of an Allowed General Unsecured Claim against FNY DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed General Unsecured Claim against FNY DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a First-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed. Note that recoveries on account of First-Tier General Interests for Class 4(c) are also limited to the Net Cause of Action Proceeds that are allocable to the estate of FNY DIP, LLC. 4.15. Class 4(d): Prepetition Subordinated Debt Claim against FNY DIP, LLC
(a) Impairment and Voting. Class 4(d) is impaired by the Plan. Each holder of an Allowed Prepetition Subordinated Debt Claim against FNY DIP, LLC is entitled to vote to accept or reject the Plan. (b) Distributions. Except to the extent that a holder of an Allowed Prepetition Subordinated Debt Claim against FNY DIP, LLC agrees to a less favorable treatment, each such holder shall receive, in full satisfaction of such Claim, a Second-Tier General Interest in the Liquidating Trust as set forth in the Liquidating Trust Agreement on or as soon as reasonably practicable after the later of (i) the Effective Date, and (ii) the date such Claim becomes Allowed and sufficient net assets exist in the Liquidating Trust for distributions on account of Second-Tier General Interests; provided, however, such holder shall only be entitled to a single recovery and the Second-Tier General Interest shall be limited to the amounts set forth in the DIP Financing Order (or in other words, holders Claims in Classes 2(d), 3(d), or 4(d) are not aggregated for calculation of the Second-Tier General Interest). 4.16. Class 4(e): Equity Interests in FNY DIP, LLC
(a) Impairment and Voting. Class 4(e) is fully impaired by the Plan. Each holder of an Allowed Equity Interest in FNY DIP, LLC is NOT entitled to vote to accept or reject the Plan. (b) Distributions. There will be no distribution on account of Equity Interests in FNY DIP, LLC. On the Effective Date, all Equity Interests in FNY DIP, LLC will be forfeited by the existing owners and deemed to be transferred to the Liquidating Trust which shall thereafter be the sole member of FNY DIP, LLC. 4.17. Class 5(a): Patient-Related Claims against CS DIP, LLC; SSHC DIP, LLC; FNY DIP, LLC and all related claims against other Entities
(a) Claims. Class 5(a) includes (i) Patient-Related Claims, (ii) claims against any Dentists or Clinics that provided services or that may be responsible for any claims or causes of action that arise from the same circumstances or treatment that give rise to any Patient-Related Claim, and (iii) any Claims asserted by the
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holder of a Claim or cause of action referenced in clauses (i) or (ii) above. (b) Impairment and Voting. Class 5(a) is impaired by the Plan. Each holder of a PatientRelated Claim against CS DIP, LLC is entitled to vote to accept or reject the Plan. (c) Liquidation. Unless and until the Liquidating Trust adopts and implements a Claim Approval Structure and/or Claim Distribution Procedures pursuant to the Plan and the Liquidating Trust Agreement, all holders of Class 5(a) Claims will be entitled to initiate and prosecute their Claims without restriction in the tort system. To the extent the automatic stay in these cases or any other limitation imposed by these cases would limit any such action, such automatic stay or limitation will be lifted thirty (30) days after the Effective Date of the Plan. Nothing herein shall obligate the Liquidating Trust or the Liquidating Trustee to defend any such Claims. The Liquidating Trust and Liquidating Trustee will, however, cooperate with and assist the Insurance Carriers in defending such Claims, whether brought against the Debtors, Post-Confirmation Debtors, Dentists or Clinics, to the extent required under the terms of the applicable Insurance Policies. (d) Insurance. The Liquidating Trust shall be entitled to exercise and enforce all of the rights and obligations of the Debtors, Post-Confirmation Debtors or other insureds, including the Insurance Rights, under or related to the Insurance Policies, including directing the Debtors or Post-Confirmation Debtors litigation of the Coverage Litigation. The Liquidating Trust will perform or cause the Debtors or PostConfirmation Debtors to perform, such obligations, if any, required by the Insurance Policies (for example, by providing any required notice of Claims to the Insurance Carrier) to preserve the Insurance Rights to the fullest extent possible. The Liquidating Trust will have the rights as described in this Plan and in the Trust Agreement related to the pursuit, settlement, and resolution of such insurance coverage rights. All holders of Class 5(a) Claims are deemed to grant to the Liquidating Trust the right and power to bind them to a settlement of Insurance Rights and the related limitations on their Class 5(a) Claims as described in the following subsection of the Plan. (e) Settlement of Coverage Claims. To facilitate its enforcement of the Insurance Rights and in connection with any resolution thereof, the Liquidating Trust shall have the right, subject to approval by the Trust Advisory Committee and the approval of the Bankruptcy Court after notice and hearing, to compromise, settle, and release any and all claims or potential claims by any (i) Class 5(a) claimant, (ii) Dentist, (iii) Clinic, or other Entity against an Insurance Carrier related to Class 5(a) claims, including any claim that any of the foregoing might have for indemnification or defense from any Insurance Carrier, subject in all events to the following restrictions:
i.
No such settlement shall affect, impair or otherwise alter any payment made by any Insurance Carrier related to any Class 5(a) claim prior to the effective date of such settlement without the express written consent of the beneficiary of such payment. To the extent that that Liquidating Trust comprises, settles or releases any claims or potential claims by any Dentists or Clinics pursuant to the authority granted herein (including the release of any Insurance Rights that benefit such Dentist or Clinic), the terms of such compromise, settlement or release must provide that any remaining claims against such Dentist or Clinics by any holder of a Class 5(a) Claim will become non-recourse with respect to such Dentist or Clinics, and that holders of such Class 5(a) Claims who have or might have claims against such Dentist or Clinics will be entitled to recovery only from the Liquidating Trust assets as provided in the Liquidating Trust Agreement and/or any Insurance Carriers that are not parties to such compromise, settlement or release.
ii.
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iii.
In no event will the Liquidating Trust have the right or power under the terms of this Plan to release any insurance coverage that might provide defense or indemnity rights to Danny DeRose, Edward DeRose, Michael DeRose, William Mueller, or Adolph Padula for any claims that arise in whole or in part out of the circumstances that give rise to the Class 5(a) Claims, without the unanimous approval of the Trust Advisory Committee.
(f) Distributions. Each Class 5 (a) claimant will be deemed to have been issued a Patient Interest in the Liquidating Trust on the Effective Date, subject to the terms of the Liquidating Trust Agreement and subject to any Claim Approval Structure and/or Claim Distribution Procedures that may subsequently be approved. Holders of Patient-Related Claims will receive no monetary distribution from the Debtors estates or based upon their Patient Interests (other than as set forth in Section 4.17(g) of the Plan or as may be deemed a distribution for tax purposes under Section 5.3(e) of the Plan) unless and until the Liquidating Trust establishes a Claim Approval Structure or Claim Distribution Procedures in accordance with Section 4.17(g) of the Plan and the Liquidating Trust Agreement. The Debtors purchased or facilitated the Dentists purchase of the Insurance Policies that were intended to protect the Debtors, the Clinics and the Dentists from patient claims arising from dental services provided by or under the management of the Debtors, the Clinics, or the Dentists. The Plan provides the Liquidating Trust the Insurance Rights, including the rights and powers to prosecute and defend litigation that is intended to maintain and establish the rights to coverage under the Insurance Policies that the Debtor believes should respond to patient claims that have been or may be asserted against the Debtors, the Clinics, or the Dentists. Preservation of this insurance coverage provides Class 5(a) Claimants their greatest likelihood of meaningful recovery. (g) Establishment of Claim Approval Structure or Claim Distribution Procedures. Pursuant to the Liquidating Trust Agreement, the Liquidating Trustee may, subsequent to the Effective Date, implement a structure for the submission, review and allowance of Class 5(a) Claims, and/or for the procedures for distribution from the Liquidating Trust to holders of Allowed Class 5(a) Claims. Any Claim Approval Structure and/or Claim Distribution Procedures shall be binding upon and will govern distributions to all Class 5(a) Claim holders whose Claims are unsatisfied at the time of establishment of the structure or procedures, and will provide the exclusive remedy to all holders of unsatisfied Class 5(a) Claims. Any such Claim Approval Structure and/or Claim Distribution Procedures shall require approval by the Trustee Advisory Committee, the Bankruptcy Court, after notice and hearing, and be subject to such other approvals as provided for in the Liquidating Trust Agreement. Any monetary distribution to the holders of Patient Interests will be determined and paid in accordance with the approved Claim Approval Structure and/or Claim Distribution Procedures and the Liquidating Trust Agreement. (h) Claims Against Former Affiliates. Each holder of a Class 5(a) Claim will retain any and all claims and legal rights such holder may have against any of Danny DeRose, Edward DeRose, Michael DeRose, William Mueller, or Adolph Padula. All holder of Class 5(a) Claims will be entitled to initiate and prosecute any such claim against any or all of Danny DeRose, Edward DeRose, Michael DeRose, William Mueller, or Adolph Padula without restriction in the tort system. To the extent the automatic stay in these Chapter 11 Cases or any other limitation imposed by these Chapter 11 Cases would limit any such action, such automatic stay or limitation will be lifted thirty (30) days after the Effective Date of the Plan. 4.18. Class 5(b): Dentists Contribution or Indemnity Claims
(a) Impairment and Voting. Class 5(b) is impaired by the Plan. Holders of a Dentists Contribution or Indemnity Claim against one or more of the Debtors are entitled to vote to accept or reject the Plan. (b)
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receive no distribution from the Debtors estates. The Debtors purchased or facilitated the Dentists purchase of the Insurance Policies, which includes certain insurance coverage that was intended to protect the Dentists from patient claims arising from dental services provided by the Dentists while in the employ of one or more of the Debtors or the Clinics. Pursuant to the Plan, the Debtors have facilitated the establishment of the Liquidating Trust. The Plan provides the Liquidating Trust the rights and powers to prosecute and defend litigation that is intended to maintain, establish and enforce the Insurance Rights, including the rights to coverage under the insurance policies that the Debtor or Post-Confirmation Debtors believe should respond to patient claims that have been or may be asserted against the Dentists. Notwithstanding the foregoing, nothing contained herein shall be deemed to limit, waive or impair any right that a Holder of a Dentists Contribution or Indemnity Claims has to assert such Claim as a defense to any Cause of Action brought against such Holder by the Debtors, the Post-Confirmation Debtors or the Liquidating Trustee. (c) Right to Settle or Release Dentists claims to insurance coverage or potential coverage. To facilitate the Liquidating Trusts management of the Insurance Policies that may respond to Patient-Related Claims and against the Dentists based on similar circumstances, the Dentists do on the Effective Date irrecoverably grant the Liquidating Trust and/or the Post-Confirmation Debtors the right and power (subject to approval by the Trust Advisory Committee and the approval of the Bankruptcy Court after notice and a hearing) to compromise, settle, release and receive the proceeds of any and all claims that the Dentists may have against any or all Insurance Carriers, subject in all events to the following restrictions: i. To the extent that that Liquidating Trust and/or Post-Confirmation Debtors comprises, settles or releases any claims or potential claims by any Dentist pursuant to the authority granted herein (including the release of any Insurance Rights that benefit such Dentist), the terms of such compromise, settlement or release must provide that any remaining claims or potential claims (whether or not such claims have been asserted) against such Dentist by any and all holders of Class 5(a) Claims (whether or not such claims have been asserted) will become non-recourse with respect to such Dentist and his/her personal assets, and that holders of such Class 5(a) Claims who have or might have claims against such Dentist will be entitled to recovery only from the Liquidating Trust assets as provided in the Liquidating Trust Agreement and/or any Insurance Carriers that are not parties to such compromise, settlement or release, and such non-recourse treatment shall be embodied in a final, non-appealable order of the Bankruptcy Court or another court of competent jurisdiction. ii. To the extent that the potential insurance released by the Liquidating Trust and/or Post-Confirmation Debtors was limited to claims arising from dental services performed within a specific time period, the non-recourse limitation afforded Dentists as a result may be limited to patients who may assert claims arising in whole or in part from services performed within that same time period. iii. The Dentists whose claims may be compromised, settled or released pursuant to the authority granted herein will be parties entitled to notice of any motion seeking approval of such an agreement, subject to any notice procedures approved by the Bankruptcy Court. 4.19. Class 5(c) Clinics Contribution or Indemnity Claims
(a) Impairment and Voting. Class 5(c) is impaired by the Plan. Holders of a Dentists Contribution or Indemnity Claim against one or more of the Debtors are entitled to vote to accept or reject the Plan. (b)
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receive no distribution from the Debtors estates. The Debtors purchased the Insurance Policies, which include certain insurance coverage that was intended to protect the Clinics from patient claims arising from dental services provided by the Clinics subject to management by one or more of the Debtors. Pursuant to the Plan, the Debtors have facilitated the establishment of the Liquidating Trust. The Plan will give the Liquidating Trust the rights and powers to prosecute and defend litigation that is intended to maintain, establish and enforce rights to coverage under the insurance policies that the Debtors or Post-Confirmation Debtors believe should respond to patient claims that have been or may be asserted against the Clinics. Notwithstanding the foregoing, that nothing contained herein shall be deemed to limit, waive or impair any right that a Holder of a Clinics Contribution or Indemnity Claims has to assert such claim as a defense to any Cause of Action brought against such Holder by the Debtors, the Post-Confirmation Debtors or the Liquidating Trustee. (c) Right to Settle or Release Clinics claims to insurance coverage or potential coverage. To facilitate the Liquidating Trusts management of the Insurance Policies that may respond to Patient-Related Claims and claims against the Clinics based on similar circumstances, the Clinics do on the Effective Date irrecoverably grant the Liquidating Trust and/or Post-Confirmation Debtors the right and power (subject to approval by the Trust Advisory Committee and the approval of the Bankruptcy Court after notice and a hearing) to compromise, settle, release, and receive the proceeds of any and all claims that the Clinics may have against any or all Insurance Carriers, subject in all events to the following restrictions: i. To the extent that that Liquidating Trust and/or Post-Confirmation Debtors compromises, settles or releases any claims or potential claims by any Clinic pursuant to the authority granted herein (including the release of any Insurance Rights that benefit such Clinic), the terms of such compromise, settlement or release must provide that any remaining claims or potential claims (whether or not such claims have been asserted) against such Clinic by any and all holders of Class 5(a) Claims (whether or not such claims have been asserted) will become non-recourse with respect to such Clinic and its assets, and that holders of such Class 5(a) Claims who have or might have claims against such Clinic will be entitled to recovery only from the Liquidating Trust assets as provided in the Liquidating Trust Agreement and/or any Insurance Carriers that are not parties to such compromise, settlement or release, and such nonrecourse treatment shall be embodied in a final, non-appealable order of the Bankruptcy Court or another court of competent jurisdiction. ii. To the extent that the potential insurance released by the Liquidating Trust and/or Post-Confirmation Debtors was limited to claims arising from dental services performed within a specific time period, the non-recourse limitation afforded Clinics as a result may be limited to patients who may assert claims arising in whole or in part from services performed within that same time period. iii. The Clinics whose claims may be compromised, settled or released pursuant to the authority granted herein will be parties entitled to notice of any motion seeking approval of such an agreement, subject to any notice procedures approved by the Bankruptcy Court. ARTICLE V MEANS FOR IMPLEMENTATION 5.1. Intercompany Claims.
Notwithstanding anything to the contrary herein, Claims by one Debtor against another Debtor or by FS
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DIP, Inc. or EEHC DIP, Inc., to the extent such Claims exist, the Liquidating Trustee will include those Claims in the analysis of the allocation of assets to each Debtors estate. 5.2. Cancellation and Surrender of Existing Securities and Agreements; Transfer of Equity Interests to Liquidating Trust.
(a) Except (i) as otherwise expressly provided in the Plan, (ii) with respect to executory contracts or unexpired leases that have been assumed by the Debtors, (iii) for purposes of evidencing a right to distributions under the Plan, or (iv) with respect to any Claim that is reinstated and rendered unimpaired under the Plan, on the Effective Date, any document, agreement, or debt instrument evidencing any Claim or Equity Interest shall be deemed automatically cancelled without further act or action under any applicable agreement, law, regulation, order or rule and the obligations of the Debtors thereunder shall be discharged. (b) Notwithstanding section 5.2(a), on the Effective Date, the Equity Interests in the Debtors shall be deemed and shall actually be transferred from the respective holders of the Equity Interests to the Liquidating Trust for the benefit of the beneficiaries of the Liquidating Trust without the need for any further action or documentation. Any and all corporate formalities are also hereby deemed to be satisfied in order for such transfer to be given effect; and without limiting the foregoing, the Liquidating Trustee shall be the sole member of the Post-Confirmation Debtors. 5.3. The Liquidating Trust
(a) Establishment. On the Effective Date, the Plan Agent and the Liquidating Trustee will execute the Liquidating Trust Agreement and related documents to form the Liquidating Trust for the benefit of holders of Claims in Classes 2(a), 2(b), 2(c), 2(d), 3(a), 3(b), 3(c), 3(d), 3(e), 4(a), 4(b), 4(c), 4(d), 4(e), and 5(a) (the Liquidating Trust Beneficiaries). In the event of any conflicts between the terms of this section 5.3 of the Plan and the Liquidating Trust Agreement, the terms of the Liquidating Trust Agreement shall govern. A true and correct copy of the Liquidating Trust Agreement shall be included in the Plan Supplement, and shall include terms designed to implement the provisions of this Plan, including the indemnification of the Liquidating Trustees and any governing committees good faith actions, governance by-laws for any governance committee, the establishment of separate funds for commercial claims and the tort and related claims of patients, Dentists, and Clinics, rights and powers permitting the Liquidating Trust to prosecute or defend litigation related to the Insurance Rights, the rights and powers appropriate to permit the Liquidating Trust to compromise, settle, release and receive the proceeds related to the Insurance Rights on behalf of the Debtors, holders of PatientRelated Claims, Dentists, and Clinics, and the right and power to establish as may be appropriate a structure to efficiently process, resolve, and satisfy Patient-Related Claims. Subject to approval by the Bankruptcy Court as part of the Confirmation Order, the Liquidating Trustee will be an individual or individuals identified in the Plan Supplement. (b) Purpose. The Liquidating Trust shall be established for the sole purposes of (1) liquidating and distributing its assets, in accordance with applicable provisions of the Internal Revenue Code of 1986 and any applicable Treasury Regulations, with no objective to continue or engage in the conduct of a trade or business and (2) litigating any Insurance Rights and defending against any claim brought by any Insurance Carrier or its agent to rescind, annul, cancel or otherwise limit any Insurance Policies or Insurance Rights. (c) Funding. On the Effective Date, the Liquidating Trust shall be funded with the Initial Trust Assets free and clear of all liens, claims and encumbrances. The Liquidating Trust also shall be funded by any and all amounts received by the Debtors or the Post-Confirmation Debtors on account of the Insurance Rights or the Coverage Litigation, which the Debtors or Post-Confirmation Debtors, as applicable, shall transfer to the Liquidating Trust as provided in section 8.3 of the Plan. The Liquidating Trust may be further funded by contributions from beneficiaries of the Liquidating Trust of any assets such beneficiaries are willing to contribute and that the Liquidating Trustee deems advisable to accept. The Liquidating Trustee may also seek to obtain
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financing to fund the ongoing administrative obligations of the Liquidating Trust or to continue the litigation of the Coverage Litigation or any other insurance-related lawsuits. (d) Retention of Counsel. The Liquidating Trustee may employ counsel on such terms as the Trustee shall consider prudent under all the existing circumstances. The Trustee shall specifically be authorized to employ attorneys that are employed or affiliated with the same law firm as the Trustee is associated with. As it is anticipated that the Liquidating Trust will likely have limited liquid assets at its inception, it is quite likely that the Liquidating Trustee may deem it advisable to retain counsel pursuant to a contingency fee arrangement. The Liquidating Trust is specifically authorized to employ counsel on contingency fee or other special billing arrangements to be paid in whole or in part from any proceeds obtained as a result of such litigation. (e) Tax Treatment. The transfer of the Initial Trust Assets to the Liquidating Trust, and all subsequent transfers permitted under subparagraph (c) of this section, shall be treated for all purposes of the Internal Revenue Code of 1986, as amended, as a deemed transfer by the Debtors to the Liquidating Trust Beneficiaries of any rights the Debtors or their Estates may have in and/or to prosecute the Initial Trust Assets, followed by a deemed transfer by the Liquidating Trust Beneficiaries to the Liquidating Trust. The Liquidating Trust Beneficiaries shall be treated as the grantors and deemed owners of the trust assets that they are deemed to transfer to the Liquidating Trust. Whether or not the Liquidating Trustee establishes reserves to pay future trust expenses, all Liquidating Trust income shall be treated as subject to tax on a current basis. The Liquidating Trustees shall allocate the Liquidating Trust income for each taxable year among the Liquidating Trust Beneficiaries in accordance with their respective interest in the Liquidating Trust, as determined from time to time by the Liquidating Trustee, and the Liquidating Trust Beneficiaries shall be responsible for any tax liability that results from said income. The Liquidating Trustee shall execute and file tax returns on behalf of the Liquidating Trust as a grantor trust pursuant to Treasury Regulation Section 1.671.4(a). The Liquidating Trust shall also be responsible for preparing and filing all tax returns for the Debtors due after the Effective Date for any period prior to the Effective Date. (f) Access to Books and Records; Attorney Client Privilege. i. Upon establishment of the Liquidating Trust, the Liquidating Trustee shall be entitled to obtain access to the Companys books and records to the extent necessary to enable the Liquidating Trust to fulfill its obligations under the Plan, including to obtain financial information for compliance with tax reporting obligations, obtain patient and other claims-related information for the purpose of establishing a Claim Approval Structure and/or Claim Distribution Procedures, assist in the litigation of the Coverage Litigation, and assist in the retention of any and all Insurance Rights. Notwithstanding the foregoing, the Liquidating Trustee shall not share any information received or obtained pursuant to this paragraph with any member of the Trust Advisory Committee or any other person who represents any plaintiff or prospective plaintiff in any actual or prospective litigation related to the assertion of any Class 5(a) Claim or other claim that has been or could be asserted against Purchaser, Clinics or Dentists (a Precluded Party). For the avoidance of doubt, as the Post-Confirmation Debtors sole shareholder, the Liquidating Trustee shall be entitled to control the attorney-client and other privileges of the Debtors following the Effective Date, including as it relates to the Insurance Rights or the litigation of any Class 5(a) Claims. Notwithstanding the foregoing, absent subsequent order of the Bankruptcy Court, which may be granted upon a showing of good cause, the Liquidating Trustee shall be prohibited from sharing with a Precluded Party any attorney-client or other privileged information
ii.
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of any Debtor or Post-Confirmation Debtor where such privilege also belongs to a Clinic or Dentist and the information subject to such privilege relates to the defense of any Patient-Related Claim. iii. The Liquidating Trustee shall implement safeguards with respect to access to book and records and as to privileges as may be prudent to avoid impairing the Insurance Rights and to avoid improper disclosure of information confidential to individual patients or former patients, including to prevent the improper disclosure of information protected under HIPAA. The Debtors, the Post-Confirmation Debtors, and any counsel that is defending them with respect to any Class 5(a) Claims shall have full access to the Companys books and records to permit an effective defense of such Claims and complete responses to discovery requests that arise in such litigation as if the books and records were still in the possession of the Debtors or Post-Confirmation Debtors. General Description of Beneficial Interests.
iv.
(g)
i. Waterfall of Net Cause of Action Proceeds:

Because the Plan does not substantively consolidate the estates of the Debtors, each claimant will retain its claim against the respective Debtor against which the claimant held its claim and be directed to recover from the assets of that particular Debtors estate, but such recovery will be directed by the Liquidating Trust. In other words, the Liquidating Trustee will pursue the Causes of Action on behalf of each Debtors estate and track each net recovery for the separate benefit of distributions to Classes 2(c), 3(c), and 4(c). The Liquidating Trust will be responsible for determining the extent of claims against each Debtor and tracking the proceeds of each Debtors estate, including pursuing Insurance Rights and the potential proceeds of the Insurance Policies. For purposes of compliance with the Sale Approval Order and calculation of the Carve Out Amount, the aggregate Net Cause of Action Proceeds for all of the Debtors estates shall be subject to the following distribution waterfall: a. The Net Cause of Action Proceeds not to exceed the Carve-Out Amount will be used first to pay in full any Deferred Administrative Claims. b. First-Tier General Interests shall share, on a pro rata basis, the lesser of (a) one hundred fifty thousand dollars ($150,000.00) of Net Cause of Action Proceeds and (b) the remaining Carve-Out Amount, if any, after satisfaction of Deferred Administrative Claims. Holders of First-Tier General Interests shall only be entitled to Net Cause of Action Proceeds under this section to the extent that such Net Cause of Action Proceeds are allocable to the Debtors estate against which the claimant held its Class 2(c), Class 3(c), or Class 4(c) Claim. c. If any of the Carve-Out Amount remains after payment of items (a) and (b) above, the lesser of (a) two hundred fifty thousand dollars ($250,000.00) of Net Cause of Action Proceeds and (b) the remaining Carve-Out Amount shall be retained by the Liquidating Trust for the costs of administering the Liquidating Trust for the benefit of Class 5(a) Claims, including any actions taken to preserve Insurance Rights and, to the extent after such use
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there remains funds, for distribution to holders of Class 5(a) Claims in accordance with any Claim Distribution Procedures that may be established. d. If any of the Carve-Out Amount remains after payment of items (a), (b) and (c) above, the lesser of (a) one hundred fifty thousand dollars ($150,000.00) of Net Cause of Action Proceeds and (b) the remaining Carve-Out Amount shall be paid pro rata to First-Tier General Interests until such claims are paid in full or until a maximum total of $300,000.00 has been distributed to First-Tier General Interests. Any remaining portion of the Carve-Out Amount after payment of items (a) (d) shall be retained by the Liquidating Trust and used for the purposes described in item (c) hereof. Holders of First-Tier General Interests shall only be entitled to Net Cause of Action Proceeds under this section to the extent that such Net Cause of Action Proceeds are allocable to the Debtors estate against which the claimant held its Class 2(c), Class 3(c), or Class 4(c) Claim. e. To the extent the First-Tier General Interests and underlying General Unsecured Claims are satisfied in full once all distributions provided for in items (a) through (d) above have been made, then any remaining Net Cause of Action Proceeds shall be shared on a pro rata basis among the holders of Second-Tier General Interests. If the First-Tier General Interests and underlying General Unsecured Claims are NOT satisfied in full by the distributions in items (a) through (d) of this Section 5.3(e), then any Net Causes of Action Proceeds in excess of six hundred thousand dollars ($600,000.00) shall be allocated on a pro rata basis among holders of the Second-Tier General Interests and holders of any remaining deficiency on First-Tier General Interests and underlying General Unsecured Claims. In no event shall the total aggregate distributions pursuant to paragraphs a. through d. above exceed the amount of the Carve-Out Amount. Allocation of any pro rata payment among the holders of Second-Tier General Interests shall be subject to the terms of the Prepetition Intercreditor Agreement as follows:any distribution to these claims shall be paid first to the First Lien Claimholders (as defined in the Prepetition Intercreditor Agreement) until the same are paid in full in cash and then to the Second Lien Claimholders (as defined in the Prepetition Intercreditor Agreement) until paid in full in cash, and lastly to holders of Prepetition Subordinated Debt Claims.
ii. Net Proceeds of Insurance Rights and Coverage Litigation. Amounts received on
account of the Insurance Rights and Coverage Litigation after deducting any legal fees or other costs incurred in prosecuting the Insurance Rights and Coverage Litigation shall be distributed in accordance with the terms of the Liquidating Trust Agreement and any approved Claim Approval Structure and/or Claim Distribution Procedures to holders of Class 5(a) Claims and the holders of Patient Interests. Any amounts received by the Debtors or Post-Confirmation Debtors on account of the Insurance Rights or the Coverage Litigation will be held in trust by the Debtors or Post-Confirmation Debtors, as applicable, until such amounts are transferred to the Liquidating Trust, which transfer shall be made as the Liquidating Trustee shall request. 5.4.
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On and after the Confirmation Date, the Plan Agent shall be the designated representative of the Debtors estates and is entitled to take any actions necessary to carry out the provisions of this Plan. Upon the Effective Date, the Liquidating Trustee shall become the Plan Agent. ARTICLE VI VOTING AND DISTRIBUTIONS 6.1. Voting of Claims.
Each holder of an Allowed Claim in an impaired Class of Claims that is entitled to vote on the Plan pursuant to Article III of the Plan shall be entitled to vote separately to accept or reject the Plan, as provided in such order as is entered by the Bankruptcy Court establishing procedures with respect to the solicitation and tabulation of votes to accept or reject the Plan, or any other order or orders of the Bankruptcy Court. 6.2. Nonconsensual Confirmation.
If any impaired class of Claims entitled to vote shall not accept the Plan by the requisite statutory majority provided in section 1126(c) of the Bankruptcy Code, the Debtors reserve the right to undertake to have the Bankruptcy Court confirm the Plan under section 1129(b) of the Bankruptcy Code. 6.3. Distribution Record Date.
On the Distribution Record Date the claims register shall be closed and any transfer of any Claim therein shall be prohibited. The Disbursing Agent shall instead be authorized and entitled to recognize and deal for all purposes under the Plan with only those record holders stated on the claims register as of the close of business on the Distribution Record Date. 6.4. Date of Distributions.
In the event that any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date. 6.5. Disbursing Agent
All distributions under the Plan shall be made by the Plan Agent as a Disbursing Agent. The Disbursing Agent shall not be required to give any bond or surety or other security for the performance of its duties unless otherwise ordered by the Bankruptcy Court and, in the event that a Disbursing Agent is so otherwise ordered, all costs and expenses of procuring any such bond or surety shall be borne by the PostConfirmation Debtors. 6.6. Rights and Powers of Disbursing Agent.
The Disbursing Agent shall be empowered to (a) effect all actions and execute all agreements, instruments and other documents necessary to perform its duties under the Plan, (b) make all distributions contemplated hereby, and (c) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof.
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6.7.
Expenses of the Disbursing Agent.
Except as otherwise ordered by the Bankruptcy Court, any reasonable fees and expenses incurred by the Disbursing Agent on or after the Effective Date shall be paid in Cash by the Post-Confirmation Debtors in the ordinary course of business. 6.8. Delivery of Distributions.
(a) General. Subject to Bankruptcy Rule 9010, all distributions to a holder of an Allowed Claim shall be made at the address of the holder thereof as set forth on the Schedules filed with the Bankruptcy Court or on the books and records of the Debtors or their agents or in a letter of transmittal unless the Debtors have been notified in writing of a change of address, including, without limitation, by the filing of a proof of claim by such holder that contains an address for such holder different from the address reflected on such Schedules for such holder. (b) Withholding and Reporting Requirements. In connection with the Plan and all instruments issued in connection therewith and distributed thereon, any party issuing any instrument or making any distribution under the Plan, including any party described in Section 6.5 above, shall comply with all applicable withholding and reporting requirements imposed by any federal, state or local taxing authority, and all distributions under the Plan shall be subject to any such withholding or reporting requirements. Notwithstanding the above, each holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any governmental unit, including income, withholding and other tax obligations, on account of such distribution. Any party issuing any instrument or making any distribution under the Plan has the right, but not the obligation, to not make a distribution until such holder has made arrangements satisfactory to such issuing or disbursing party for payment of any such tax obligations. 6.9. Unclaimed Distributions.
In the event that any distribution to any holder is returned as undeliverable, the Post-Confirmation Debtors shall use reasonable efforts to determine the current address of such holder, but no distribution to such holder shall be made unless and until the Post-Confirmation Debtors have determined the then-current address of such holder, at which time such distribution shall be made to such holder without interest from the original distribution date through the new distribution date; provided that such distributions shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code at the expiration of one year from the Effective Date. After such date, all unclaimed property or interest in property shall revert to the Liquidating Trust, and the Claim of any other Entity to such property or interest in property shall be discharged and forever barred. 6.10. Manner of Payment.
At the option of the Disbursing Agent, any Cash payment to be made hereunder may be made by a check or wire transfer or as otherwise required or provided in applicable agreements. 6.11. Minimum Cash Distributions.
Notwithstanding anything set forth herein to the contrary, no payment of Cash less than $50 shall be made to any holder of an Allowed Claim unless a request therefor is made in writing to the Disbursing Agent. 6.12. Setoffs.
The Debtors may, but shall not be required to, set off against any Claim (for purposes of determining the Allowed amount of such Claim on which distribution shall be made) any Claims of any nature whatsoever that
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the Debtors may have against the holder of such Claim, but neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors of any such Claim the Debtors may have against the holder of such Claim; provided, however, that the Debtors shall not exercise setoff rights with respect to the respective Claims of the Prepetition Secured Lenders. ARTICLE VII PROCEDURES FOR ADMINISTRATIVE EXPENSE CLAIMS, OTHER PROOFS OF CLAIM AND DISPUTED CLAIMS 7.1. Administrative Expense Claims, General Unsecured Claims (other than Patient-Related Claims), and Priority Claims Bar Date.
(a) With the sole exception of holders of Patient-Related Claims (the allowance and distributions on account thereof being governed by the Liquidating Trust Agreement), all entities (including without limitation Governmental Units as defined in Section 101(27) of the Bankruptcy Code) with Administrative Expense Claims, General Unsecured Claims (other than Patient-Related Claims) or Priority Claims against the Debtors shall file their proofs of claim in the form approved by the Confirmation Order prior to the Bar Date. Notice of entry of the Confirmation Order shall contain notice of the Bar Date. If the holder of the Claim fails to file a Proof of Claim in respect of their Claim before the Bar Date in accordance with the procedures set forth in the Confirmation Order, that Claim Holder shall be forever barred, estopped and enjoined from asserting such Claim against the Debtors and their estates (or filing a Proof of Claim with respect thereto), and the Debtors and their property shall be forever discharged from any and all indebtedness or liability with respect to such Claim. Furthermore, such holder shall not be permitted to participate in any distribution in these cases on account of such Claim, or be entitled to receive further notices regarding such Claim in these cases. The Debtors shall also publish a notice of the Bar Date once in The Tennessean and once in a national newspaper as soon as is reasonable practicable after entry of the Confirmation Order, but in no event later than twenty-five (25) days prior to the Bar Date. Counsel to holders of Patient-Related Claims shall be allowed to file omnibus claims on behalf of their Client in unliquidated amounts, which will be determined at a later date. (b) The determination of entitlement to distributions on account of Patient Interests and (and the underlying Patient-Related Claims) shall be governed by the process and procedures established pursuant to the Liquidating Trust Agreement. 7.2. Final Fee Applications
Final Fee Applications for payment of administrative expenses for professionals through the Confirmation Date pursuant to Sections 330 and 331 of the Bankruptcy Code as well as that certain Expedited Order Pursuant to Bankruptcy Code 331 Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals (Docket No. 170) shall be filed no later than thirty (30) days after entry of the Confirmation Order. Amounts payable pursuant to any Final Order regarding the Final Fee Applications shall be made (a) first, from any remaining proceeds of the 363 Sale held by the Debtors on the Effective Date or by application of any retainer held by any professional and (b) second, by the Plan Agent or Liquidating Trustee from the Net Cause of Action Proceeds as soon as they become available. 7.3. Objections.
Objections to all Claims against the Debtors other than Patient-Related Claims may be interposed and prosecuted only by the Debtors and the Post-Confirmation Debtors. The Post-Confirmation Debtors shall be entitled to object to any Claim through and after the Effective Date. Any objections to Claims other than Patient-Related Claims shall be served and filed with the Bankruptcy Court on or before the later of (i) one
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hundred eighty (180) days after the Effective Date, as such time may be extended by order of the Bankruptcy Court and (ii) such later date as may be fixed by the Bankruptcy Court, whether fixed before or after the date specified in clause (i) above. Unless and until the Liquidating Trust establishes a Claim Approval Structure or Claim Distribution Procedures in accordance with Section 4.17(g) of the Plan, Patient-Related Claims will be asserted, prosecuted, and liquidated in courts where such claims could have been asserted absent these Chapter 11 cases. Insurers who may have responsibility for such claims may defend such claims as those insurers deem appropriate. 7.4. No Payment Pending Allowance.
Notwithstanding any other provision in the Plan, if any portion of a Claim is disputed, then no payment or distribution provided hereunder shall be made on account of any portion of such Claim unless and until such Disputed Claim becomes an Allowed Claim. 7.5. Distributions After Allowance.
To the extent that a Disputed Claim becomes an Allowed Claim, the Disbursing Agent shall distribute to the holder of such Claim, the property distributable with respect to such Claim in accordance with Article IV of the Plan. Such distributions shall be made as soon as practicable after the later of (i) the date that the order or judgment of the Bankruptcy Court allowing such Disputed Claim (or portion thereof) becomes a Final Order, (ii) the date on which any objection to such Disputed Claim has been withdrawn, or (iii) the date on which such Disputed Claim has been settled, compromised or otherwise resolved. To the extent that all or a portion of a Disputed Claim is disallowed, the holder of such Claim shall not receive any distribution on account of the portion of such Claim that is disallowed and any property withheld, if any, pending the resolution of such Claim shall revest in the Liquidating Trust. 7.6. Resolution of Administrative Expense Claims and other Claims.
On and after the Effective Date, the Post-Confirmation Debtors shall have the authority to compromise, settle, otherwise resolve, or withdraw any objections to Administrative Expense Claims and any other Claims and to compromise, settle, or otherwise resolve any Disputed Claims without approval of the Bankruptcy Court, other than with respect to Administrative Expense Claims relating to compensation of professionals. 7.7. Estimation of Claims.
Requests for estimation of all Claims against the Debtors may be interposed and prosecuted only by the Debtors and the Post-Confirmation Debtors. The Debtors and the Post-Confirmation Debtors may at any time request that the Bankruptcy Court estimate any Contingent Claim, Unliquidated Claim, or Disputed Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether any of the Debtors or the PostConfirmation Debtors previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including, without limitation, during the pendency of any appeal relating to any such objection. In the event that the Bankruptcy Court estimates any Contingent Claim, Unliquidated Claim, or Disputed Claim, the amount so estimated shall constitute either the Allowed amount of such Claim or a maximum limitation on such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such Claim, the Debtors or the Post-Confirmation Debtors may pursue supplementary proceedings to object to the allowance of such Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn, or resolved by any mechanism approved by the Bankruptcy Court.
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7.8.
Interest.
To the extent that a Disputed Claim becomes an Allowed Claim after the Effective Date, the holder of such Claim shall not be entitled to any interest thereon from the Effective Date to the date such Claim becomes Allowed. ARTICLE VIII EXECUTORY CONTRACTS, UNEXPIRED LEASES AND INSURANCE RIGHTS 8.1. Rejection of Executory Contracts and Unexpired Leases.
Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts and unexpired leases that exist between the Debtors and any person or entity shall be deemed rejected by the Debtors as of the Effective Date, except for any executory contract or unexpired lease (i) that has been assumed, assumed and assigned, or rejected pursuant to the Plan or pursuant to an order of the Bankruptcy Court entered on or before the Effective Date or (ii) as to which a motion for approval of the assumption, assumption and assignment, or rejection has been filed and served prior to the Confirmation Date, which motion is thereafter approved by the Bankruptcy Court. 8.2. Bar Date for Filing Proofs of Claim Relating to Executory Contracts and Unexpired Leases Rejected Pursuant to the Plan.
In the event that the rejection of an executory contract or unexpired lease by the Debtors pursuant to the Plan results in damages to the other party or parties to such contract or lease, a Claim for such damages, if not heretofore evidenced by a timely filed proof of claim, shall be forever barred and shall not be enforceable against the Debtors or the Post-Confirmation Debtors, or their properties or interests in property as agents, successors, or assigns, unless a proof of claim is filed with the Claims Agent in accordance with the procedures established by the Confirmation Order. 8.3. Insurance Policies and Rights.
Notwithstanding anything contained in the Plan to the contrary, unless specifically rejected by order of the Bankruptcy Court prior to the Effective Date, all of the Insurance Policies and any agreements, documents or instruments relating to Insurance Policies or Insurance Rights (including the Coverage Agreement), to the extent such policies, agreements, documents or instruments are executory contracts, shall be deemed assumed pursuant to the Plan effective as of the Effective Date. Nothing contained in this Section 8.3 shall constitute or be deemed a waiver of any Cause of Action that the Debtors or Post-Confirmation Debtors may hold against any entity, including an Insurance Carrier, under any of the Insurance Policies. To the extent the Insurance Policies are determined not to be executory contracts, they will remain in full force and effect in accordance with their terms and will be treated as unimpaired (as defined in section 1124 of the Bankruptcy Code), including for purposes of payment of Claims for retrospective premiums as the Liquidating Trust may see fit to preserve the value of the Insurance Rights. The Debtors and the Post-Confirmation Debtors (through the Liquidating Trustee) will perform the insureds obligations under the Insurance Policies, whether they are treated as executory or non-executory. The Plan does not modify any of the rights or obligations of any Insurance Carriers or the Debtors under any of the Insurance Policies. Notwithstanding any other provision of the Plan, the Debtors and Post-Confirmation Debtors will be bound by all of the terms, conditions, limitations and/or exclusions contained in the Insurance Policies, which will continue in full force and effect, but subject to the Coverage Litigation.
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After the Effective Date, the Liquidating Trustee shall have the right to require that the Debtors or PostConfirmation Debtors promptly transfer to the Liquidating Trust any payment received by the Debtors or PostConfirmation Debtors in connection with any Insurance Rights or under any Insurance Policies. On and after the Effective Date, the Liquidating Trustee shall be permitted to intervene in the Coverage Litigation, to engage counsel to represent it and/or the Debtors or Post-Confirmation Debtors in the Coverage Litigation and, to the extent he/she deems appropriate, to substitute the Liquidating Trustee as the party-in-interest in such litigation. Notwithstanding anything to contrary, nothing in the Plan or any order confirming the Plan impairs or alters any rights that the Debtors, Post-Confirmation Debtors, or other insureds have or might have under any Insurance Policies prior to the Effective Date, nor shall the Plan or any order confirming the Plan create any defense to the obligations the Insurance Carriers may have under the Insurance Policies or Coverage Agreement that did not exist prior to the Effective Date. ARTICLE IX EFFECT OF CONFIRMATION 9.1. Vesting of Assets.
Upon the Effective Date, pursuant to section 1141(b) and (c) of the Bankruptcy Code, all property of the Debtors shall vest in each of the Post-Confirmation Debtors free and clear of all Claims, Liens, encumbrances, charges, and other interests, except as provided in the Plan, and as set forth herein, the Initial Trust Assets shall be transferred to the Liquidating Trust. From and after the Effective Date, the Plan Agent may dispose of the assets of the Liquidating Trust free of any restrictions of the Bankruptcy Code, but in accordance with the provisions of the Plan and the Liquidating Trust Agreement. 9.2. Release of Assets.
Until the Effective Date, the Bankruptcy Court shall retain jurisdiction of the Debtors and their assets and properties. Thereafter, jurisdiction of the Bankruptcy Court shall be limited to the subject matter as set forth in Article 11 hereof. 9.3. Term of Injunctions or Stays.
Unless otherwise provided, all injunctions or stays arising under or entered during the Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until the later of the closing of the Chapter 11 Cases and the date indicated in the order providing for such injunction or stay. Notwithstanding the foregoing, the automatic stay with respect to the Coverage Litigation shall terminate as of the date thirty (30) days after the Effective Date, and all parties to the Coverage Litigation shall be permitted to proceed thereafter with such litigation, and with any claims at issue in such litigation, in a court of appropriate jurisdiction. 9.4. Injunction Against Interference With Plan.
Upon the entry of the Confirmation Order, all holders of Claims or Equity Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals and affiliates shall be enjoined from taking any actions to interfere with the implementation or consummation of the Plan. 9.5. Exculpation.
Notwithstanding anything herein to the contrary, as of the Confirmation Date but subject to the
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occurrence of the Effective Date, none of the Debtors, the Creditors Committee, the Prepetition Secured Lenders, the Prepetition Subordinated Lenders, in all their respective capacities, and their respective agents, attorneys, financial advisors, accountants, investment bankers, members, directors, officers, employees, and representatives, successors and assigns shall have or incur any liability for any claim, cause of action or other assertion of liability for any act taken or omitted to be taken since the Commencement Date in connection with, or arising out of, the Chapter 11 Cases, the formulation, dissemination, confirmation, consummation, or administration of the Plan, the Plan, the Disclosure Statement or any contract, instrument, document or other agreement related thereto; provided, however, that the foregoing shall not affect the liability of any person that would otherwise result from any such act or omission to the extent such act or omission is determined by a Final Order to have constituted willful misconduct, gross negligence, fraud, criminal conduct, intentional unauthorized misuse of confidential information that causes damages, or ultra vires act. 9.6. Releases.
Effective as of the Confirmation Date but subject to the occurrence of the Effective Date, and in consideration of the services provided to the Debtors by the present director, officer and employee of the Debtors who acted in such capacities after the Commencement Date, each holder of a Claim that votes to accept the Plan (or is deemed to accept the Plan), and to the fullest extent permissible under applicable law, as such law may be extended or integrated after the Effective Date, each holder of a Claim that does not vote to accept the Plan, shall release unconditionally and forever such present director, officer and employee of the Debtors, in all his respective capacities, and from any and all claims or causes of action that exist as of the Effective Date and arise from or relate to, in any manner, in whole or in part, the operation of the business of the Debtors, the subject matter of, or the transaction or event giving rise to, the Claim or interest of such holder, the business or contractual arrangements between any Debtor and such holder, any restructuring of such claim or equity prior to the Chapter 11 Cases, or any act, omission, occurrence, or event in any manner related to such subject matter, transaction or obligation, or arising out of the Chapter 11 Cases, including, but not limited to, the pursuit of confirmation of the Plan, the consummation thereof, the administration thereof, or the property to be distributed thereunder; provided, that the foregoing shall not operate as a waiver of or release from any causes of action arising out of the willful misconduct, gross negligence, fraud, criminal conduct, intentional unauthorized misuse of confidential information that causes damages, or ultra vires acts of any such person or entity. 9.7. Retention of Causes of Action/Reservation of Rights.
(a) Except as set forth in section 9.6 hereof, nothing contained in the Plan or the Confirmation Order shall be deemed to be a waiver or relinquishment of any rights or causes of action that the Debtors or the Post-Confirmation Debtors may have or which the Post-Confirmation Debtors may choose to assert on behalf of their respective estates under any provision of the Bankruptcy Code or any applicable nonbankruptcy law, including (i) any and all Claims against any person or entity, to the extent such person or entity asserts a crossclaim, a counterclaim, and/or a Claim for setoff that seeks affirmative relief against the Debtors, the Post-Confirmation Debtors, their officers, directors, or representatives, including the Liquidating Trust or the Liquidating Trustee, and (ii) the turnover of any property of the Debtors estates. (b) Except as set forth in section 9.6 hereof, nothing contained in the Plan or the Confirmation Order shall be deemed to be a waiver or relinquishment of any claim, cause of action, right of setoff, or other legal or equitable defense that the Debtors had immediately prior to the Commencement Date, against or with respect to any Claim left unimpaired by the Plan. Subject to the foregoing, the PostConfirmation Debtors shall have, retain, reserve, and be entitled to assert all such claims, causes of action, rights of setoff, and other legal or equitable defenses that the Debtors had immediately prior to the Commencement Date as fully as if the Chapter 11 Cases had not been commenced, and all of the Post-Confirmation Debtors legal and equitable rights respecting any Claim that are left unimpaired by the Plan may be asserted after the Confirmation Date to the same extent as if the Chapter 11 Cases had not been commenced.
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(c) Except as otherwise provided in the Plan, on and after the Effective Date, the PostConfirmation Debtors, through the Liquidating Trustee, will have the exclusive right to enforce any and all Causes of Action against any person or entity, and may pursue, abandon, settle, or release any of all Causes of Action as it deems appropriate without the need for approval or any other or further relief from the Bankruptcy Court, so long as such conduct is in accordance with the terms of the Liquidating Trust. 9.8. Limitations on Exculpation.
Nothing in Sections 9.5 or 9.6 of the Plan shall be construed to release or exculpate any entity from fraud, criminal conduct, intentional unauthorized misuse of confidential information that causes damages, or ultra vires acts. 9.9. Plan and Confirmation Order Do Not Modify or Affect 363 Sale, Sale Approval Order and/or Related Transactions.
Notwithstanding any provision of the Plan or Confirmation Order to the contrary (including, without limitation, the definition of Causes of Action and Section 9.7(b) and Article XI of the Plan), (a) the Plan and the Confirmation Order do not and shall not modify or amend the Sale Approval Order or any of the Sale Documents, including (without limitation) the Releases, (b) the term Causes of Action shall not include any action, cause of action, suit, account, controversy, agreement, promise, right to legal remedies, right to equitable remedies, right to payment or claim that was released pursuant to one or more of the Releases (the Released Claims), (c) the federal courts in the Southern District of New York shall have exclusive jurisdiction in connection with any claim, action or other legal proceeding arising out of, in connection with, or relating to, any Release or any Released Claim, and (d) all of the Releases shall remain in full force and effect in accordance with their terms. The terms Sale Documents and Releases shall have the meanings ascribed to such terms in the Sale Approval Order. ARTICLE X CONDITIONS PRECEDENT TO EFFECTIVE DATE 10.1. Conditions Precedent to Effectiveness.
The Effective Date shall not occur and the Plan shall not become effective unless and until the following conditions are satisfied in full or waived in accordance with Section 10.2 of the Plan: (a) The Confirmation Order, in form and substance acceptable to the Debtors, shall have been entered and shall not be subject to any stay or injunction; (b) All actions, documents, and agreements necessary to implement the Plan shall have been effected or executed; and (c) The Debtors shall have received all authorizations, consents, regulatory approvals, rulings, letters, no-action letters, opinions, or documents that are determined by the Debtors to be necessary to implement the Plan or that are required by law, regulation, or order. 10.2. Waiver of Conditions.
Each of the conditions precedent in Section 10.1 hereof may be waived in whole or in part by the Debtors, in their sole discretion. Any such waiver may be effected at any time, without notice or leave or order of the Bankruptcy Court and without any formal action.
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10.3.
Effect of Failure of Conditions to Effective Date.
In the event the conditions precedent specified in Section 10.1 hereof have not been satisfied or waived pursuant to Section 10.2 hereof on or prior to the 120th day after the Confirmation Order becomes a Final Order, then (i) the Confirmation Order shall be vacated, (ii) no distributions under the Plan shall be made, (iii) the Debtors and all holders of Claims and Equity Interests shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date had never occurred, and (iv) all of the Debtors obligations with respect to the Claims and Equity Interests shall remain unchanged and nothing contained herein shall be deemed to constitute a waiver or release of any claims by or against the Debtors or any other Entity or to prejudice in any manner the rights of the Debtors or any other Entity in any further proceedings involving the Debtors. ARTICLE XI RETENTION OF JURISDICTION On and after the Effective Date, the Bankruptcy Court shall have exclusive jurisdiction over all matters arising out of, arising under, and related to the Chapter 11 Cases and the Plan pursuant to, and for the purpose of, sections 105(a) and 1142 of the Bankruptcy Code, including: (a) To hear and determine pending applications for the assumption or rejection of executory contracts or unexpired leases, the allowance of Claims resulting therefrom and any disputes with respect to executory contracts or unexpired leases relating to the facts and circumstances arising out of or relating to the Chapter 11 Cases; (b) To determine any motion, adversary proceeding, application, contested matter, and other litigated matter pending on or commenced after the Confirmation Date, except that the Bankruptcy Court shall not retain any jurisdiction to determine liability or damages with respect to any Class 5(a) Claim nor shall the Bankruptcy Court retain exclusive jurisdiction with respect to any disputes as to the Insurance Rights; (c) To ensure that distributions to holders of Allowed Claims are accomplished as provided herein;
(d) To consider Claims or the allowance, classification, priority, compromise, estimation, or payment of any Claim, Administrative Expense Claim, or Equity Interest, including the entitlement of a holder of a beneficial interest in the Liquidating Trust to distribution from the Liquidating Trust, provided however, that the Court shall not retain any jurisdiction to determine liability or damages with respect to any personal injury or wrongful death Claim; (e) To enter, implement, or enforce such orders as may be appropriate in the event the Confirmation Order is stayed, reversed, revoked, modified, or vacated for any reason; (f) To issue injunctions, enter and implement other orders, and take such other actions as may be necessary or appropriate to prevent interference by any person with the consummation, implementation, or enforcement of the Plan, the Confirmation Order, or any other order of the Bankruptcy Court; (g) To hear and determine any application to modify the Plan in accordance with section 1127 of the Bankruptcy Code, to remedy any defect or omission or reconcile any inconsistency in the Plan, the Disclosure Statement, or any order of the Bankruptcy Court, including the Confirmation Order, in such a manner as may be necessary to carry out the purposes and effects thereof; (h) To hear and determine all applications under sections 330, 331, and 503(b) of the Bankruptcy Code for awards of compensation for services rendered and reimbursement of expenses incurred prior to the
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Confirmation Date; (i) To consider any amendments to or modifications of the Plan or to cure any defect or omission, or reconcile any inconsistency, in any order of the Bankruptcy Court, including, without limitation, the Confirmation Order; (j) To hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan, the Confirmation Order, any transactions or payments contemplated hereby or thereby, or any agreement, instrument, or other document governing or relating to any of the foregoing; (k) To take any action and issue such orders as may be necessary to construe, enforce, implement, execute, and consummate the Plan or to maintain the integrity of the Plan following the Effective Date; (l) To determine such other matters and for such other purposes as may be provided in the Confirmation Order; (m) To hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code (including the expedited determination of tax under section 505(b) of the Bankruptcy Code); (n) (o) To determine the scope of any discharge of any Debtor under the Plan or the Bankruptcy Code; To recover all assets of the Debtors and all property of the Debtors estates, wherever located;
(p) To hear and determine any rights, claims or causes of action held by or accruing to the Debtors pursuant to the Bankruptcy Code, any other federal or state statute, or any legal theory; (q) settlements; To approve settlement with respect to Insurance Rights and any issues related to any such
(r) To approve any Claim Approval Structure and/or Claim Distribution Procedures that may be proposed by the Liquidating Trustee with the consent of the Trust Advisory Committee and to oversee administration of any such procedures; (s) To enter a final decree closing the Chapter 11 Cases;
(t) To determine any other matters that may arise in connection with or are related to the Plan, the Disclosure Statement, the Confirmation Order, any of the Plan Documents, or any other contract, instrument, release or other agreement or document related to the Plan, the Disclosure Statement or the Plan Supplement, including without limitation the Liquidating Trust; and (u) To hear and determine any other matter not inconsistent with the Bankruptcy Code.
On and after the Effective Date, the Bankruptcy Court shall retain non-exclusive jurisdiction over any dispute as to Insurance Rights.
ARTICLE XII
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MISCELLANEOUS PROVISIONS 12.1. Effectuating Documents and Further Transactions
The Post-Confirmation Debtors are authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures, and other agreements or and take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan and the Liquidating Trust Agreement. 12.2. Corporate Action.
On the Effective Date, all matters provided for under the Plan that would otherwise require approval of the stockholders or directors of one or more of the Debtors or the Post-Confirmation Debtors shall be deemed to have occurred and shall be in effect from and after the Effective Date pursuant to the applicable general corporation law of the states in which the Debtors or the Post-Confirmation Debtors are incorporated, without any requirement for further action by the stockholders or directors of the Debtors or the Post-Confirmation Debtors. 12.3. Exemption from Transfer Taxes.
Pursuant to section 1146(a) of the Bankruptcy Code, the issuance, transfer, or exchange of notes or equity securities under the Plan, the creation of any mortgage, deed of trust, or other security interest, the making or assignment of any lease or sublease, or the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with the Plan, including, without limitation, deeds, bills of sale, or assignments executed in connection with any of the transactions contemplated under the Plan, shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax. All sale transactions consummated by the Debtors and approved by the Bankruptcy Court on and after the Commencement Date through and including the Effective Date, including, without limitation, the transfers effectuated under the Plan, the sale by the Debtors of owned property pursuant to section 363(b) of the Bankruptcy Code, and the assumption, assignment, and sale by the Debtors of unexpired leases of non-residential real property pursuant to section 365(a) of the Bankruptcy Code, shall be deemed to have been made under, in furtherance of, or in connection with the Plan and, thus, shall not be subject to any stamp, real estate transfer, mortgage recording, or other similar tax. 12.4. Expedited Tax Determination.
The Debtors and the Post-Confirmation Debtors are authorized to request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for any and all returns filed for, or on behalf of, the Debtors for any and all taxable periods (or portions thereof) ending after the Commencement Date through, and including, the Effective Date. 12.5. Payment of Statutory Fees.
On the Effective Date, and thereafter as may be required, the Debtors shall pay all fees payable pursuant to section 1930 of chapter 123 of title 28 of the United States Code. 12.6. Post-Confirmation Date Professional Fees and Expenses.
From and after the Confirmation Date, the Post-Confirmation Debtors shall, in the ordinary course of business and without the necessity for any approval by the Bankruptcy Court, pay the reasonable fees and expenses of professional persons thereafter incurred by Post-Confirmation Debtors.
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12.7.
Dissolution of Statutory Committees.
On the Effective Date, the Creditors Committee shall be dissolved and the members thereof shall be released and discharged of and from all further authority, duties, responsibilities and obligations relating to and arising from and in connection with the Chapter 11 Cases, and the retention or employment of the Creditors Committees attorneys, financial advisors, accountants and other agents, if any, shall terminate other than for purposes of filing and prosecuting applications for final allowances of compensation for professional services rendered and reimbursement of expenses incurred in connection therewith. Nothing shall prevent the professionals of the Creditors Committee from being hired by the Liquidating Trustee in accordance with the Liquidating Trust Agreement. 12.8. Plan Supplement.
A draft form of the Plan Documents to be entered into as of the Effective Date and any other appropriate documents shall be contained in the Plan Supplement and filed with the Clerk of the Bankruptcy Court no later than ten (10) days prior to the last date by which holders of impaired Claims may vote to accept or reject the Plan. Upon its filing with the Bankruptcy Court, the Plan Supplement may be inspected in the office of the Clerk of the Bankruptcy Court during normal court hours. Documents to be included in the Plan Supplement will be posted at a website identified in the Disclosure Statement as they become available, but no later than five (5) days prior to the last date by which votes to accept or reject the Plan must be received. 12.9. Substantial Consummation.
On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code. 12.10. Amendments or Modifications of the Plan. Alterations, amendments, or modifications of or to the Plan may be proposed in writing by the Debtors at any time prior to the Confirmation Date, provided that the Plan, as altered, amended, or modified, satisfies the conditions of sections 1122 and 1123 of the Bankruptcy Code, and the Debtors shall have complied with section 1125 of the Bankruptcy Code. After the Confirmation Date, so long as such action does not materially and adversely affect the treatment of holders of Claims or Equity Interests under the Plan, the Debtors or the PostConfirmation Debtors may institute proceedings in the Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the Plan or the Confirmation Order, with respect to such matters as may be necessary to carry out the purposes and effects of the Plan. A holder of a Claim or Equity Interest that has accepted the Plan shall be deemed to have accepted the Plan, as altered, amended, or modified, if the proposed alteration, amendment, or modification does not materially and adversely change the treatment of the Claim or Equity Interest of such holder. 12.11. Revocation or Withdrawal of the Plan. The Debtors reserve the right to revoke or withdraw the Plan prior to the Effective Date. If the Debtors take such action, the Plan shall be deemed null and void. In such event, nothing contained in the Plan shall constitute or be deemed a waiver or release of any Claims against or Equity Interests in the Debtors, any claims or rights of the Debtors against any other person or to prejudice in any manner the rights of the Debtors or any other person in any further proceedings involving the Debtors. 12.12. Severability. If, prior to the entry of the Confirmation Order, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court, at the request of the Debtors, shall
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have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision as altered or interpreted shall then be applicable. Notwithstanding any such holding, alteration, or interpretation, the remainder of the terms and provisions of the Plan will remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms. 12.13. Governing Law. Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit hereto or a schedule or document in the Plan Supplement provides otherwise, the rights, duties, and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of Tennessee, without giving effect to the principles of conflict of laws thereof. 12.14. Binding Effect. The Plan shall be binding upon and inure to the benefit of the Debtors, the holders of Claims and Equity Interests, and their respective successors and assigns, including, without limitation, the Post-Confirmation Debtors and holders of beneficial interests in the Liquidating Trust. 12.15. Notices. In order to be effective, all notices, requests, and demands to or upon the Debtors or the Liquidating Trustee, as applicable, must be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows: Debtors: CS DIP, LLC Attn: Bradley B. Williams, President P.O. Box 330646 Nashville, TN 37203 Telephone: (615) 852-8455 With a copy to : Waller Lansden Dortch & Davis, LLP Attn: Katie G. Stenberg 511 Union Street, Suite 2700 Nashville, TN 37129 Telephone: (615) 244-6380 Facsimile: (615) 244-6804 Foley Hoag LLP Attn: Kenneth S. Leonetti Seaport World Trade Center West 155 Seaport Boulevard Boston, MA 02210 Telephone: (617) 832-1271
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Facsimile: (617) 832-7000 Walker Tipps & Malone PLC Attn: J. Mark Tipps 2300 One Nashville Place 150 Fourth Avenue North Nashville, Tennessee Telephone: (615) 313-6007 Facsimile: (615) 313-6001 Liquidating Trustee: ___________, Liquidating Trustee ___________________________ ___________________________ ___________________________ With a copy to: John H. Rowland, Esq. Courtney H. Gilmer, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 211 Commerce Street, Suite 800 Nashville, TN 37201 Telephone: (615) 726-5544 Facsimile: (615) 744-5544 E. Franklin Childress, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 577-2147 Facsimile: (901) 577-2303
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Respectfully Submitted this 11th day of January, 2013. Nashville, Tennessee CS DIP, LLC
By:
/s/ Bradley B. Williams Bradley B. Williams, President
SSHC DIP, LLC
By:
FNY DIP, LLC
By:
The Official Committee of Unsecured Creditors
By:
/s/ James Moriarty James Moriarty, Chairman
COUNSEL: /s/ Katie G. Stenberg John C. Tishler, Esq. Katie G. Stenberg, Esq. Robert P. Sweeter, Esq. WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, TN 37219 Telephone: (615) 244-6380 Facsimile: (615) 244-6804 Email: john.tishler@wallerlaw.com katie.stenberg@wallerlaw.com robert.sweeter@wallerlaw.com
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Kenneth S. Leonetti, Esq.* FOLEY HOAG LLP Seaport World Trade Center West 155 Seaport Boulevard Boston, MA 02210-2600 Telephone: 617.832.1000 Facsimile: 617.832.7000 Email: kleonetti@foleyhoag.com *Admitted Pro Hac Vice in Bankruptcy Court Robert J. Welhoelter, Esq. 4525 Harding Pike, Suite 105 Nashville, TN 37205 TEL 615-620-4343 FAX 615-620-4581 rjwelho@gmail.com Attorneys for the Debtors and Debtors in Possession and /s/ John H. Rowland John H. Rowland, Esq. Courtney H. Gilmer, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 211 Commerce Street, Suite 800 Nashville, TN 37201 Telephone: (615) 726-5544 Facsimile: (615) 744-5544 Email for ECF purposes: businessbknash@bakerdonelson.com E. Franklin Childress, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 577-2147 Facsimile: (901) 577-2303 Email: fchildress@bakerdonelson.com Attorneys for the Official Committee of Unsecured Creditors
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594 Proposed Second Amended Joint Plan of Reorganization

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594 Proposed Second Amended Joint Plan of Reorganization

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THIS IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION OF THE PLAN.

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Professional Compensation and Reimbursement Claims.

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Class 5(b) Class 5(c)

Distributions. Except to the extent that a holder of an Allowed Prepetition Subordinated

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Distributions / Treatment. Holders of Dentists Contribution or Indemnity Claims will

Distributions / Treatment. Holders of Clinics Contribution or Indemnity Claims will

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i. Waterfall of Net Cause of Action Proceeds:

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Expenses of the Disbursing Agent.

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Effect of Failure of Conditions to Effective Date.

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MISCELLANEOUS PROVISIONS 12.1. Effectuating Documents and Further Transactions

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Dissolution of Statutory Committees.

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/s/ Bradley B. Williams Bradley B. Williams, President

SSHC DIP, LLC

/s/ Bradley B. Williams Bradley B. Williams, President

FNY DIP, LLC

/s/ Bradley B. Williams Bradley B. Williams, President

The Official Committee of Unsecured Creditors

/s/ James Moriarty James Moriarty, Chairman

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