FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

(I) APPROVING THE DEBTORS’ (A) DISCLOSURE STATEMENT

DATED APRIL 16, 2014 PURSUANT TO SECTIONS 1125 AND 1126(B)

OF THE BANKRUPTCY CODE AND (B) SOLICITATION OF VOTES

AND SOLICITATION PROCEDURES AND (II) CONFIRMING

THE FIRST AMENDED PREPACKAGED PLAN OF REORGANIZATION OF THE

Genco Shipping & Trading Limited (“Genco”) and certain of its direct and indirect subsidiaries, as chapter 11 debtors and debtors-in-possession (each a “Debtor” and, collectively, the “Debtors”¹ or the “Company”) in the above-referenced chapter 11 cases having proposed and filed (A) the Prepackaged Plan of Reorganization of the Debtors Pursuant to

 

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¹ The Debtors and, if applicable, the last four digits of their taxpayer identification numbers are as follows: Genco Shipping & Trading Limited (9758), Genco Investments LLC, Genco Management (USA) LLC (3865), Genco RE Investments LLC, Genco Ship Management LLC (7604), Genco Acheron Limited (9293), Genco Aquitaine Limited (8217), Genco Ardennes Limited (8215), Genco Augustus Limited (3622), Genco Auvergne Limited (8233), Genco Avra Limited (5557), Genco Bay Limited (5558), Genco Beauty Limited (9761), Genco Bourgogne Limited (8236), Genco Brittany Limited (8237), Genco Carrier Limited (9763), Genco Cavalier LLC (9764), Genco Challenger Limited (6074), Genco Champion Limited (6073), Genco Charger Limited (6072), Genco Claudius Limited (3620), Genco Commodus Limited (3619), Genco Constantine Limited (3617), Genco Explorer Limited (9764), Genco Hadrian Limited (3608), Genco Hunter Limited (6158), Genco Knight Limited (9773), Genco Languedoc Limited (8238), Genco Leader Limited (9774), Genco Loire Limited (8239), Genco London Limited (3610), Genco Lorraine Limited (8242), Genco Mare Limited (5641), Genco Marine Limited (9775), Genco Maximus Limited (3613), Genco Muse Limited (5276), Genco Normandy Limited (8243), Genco Ocean Limited (5645), Genco Picardy Limited (8244), Genco Pioneer Limited (9767), Genco Predator Limited (6075), Genco Progress Limited (9776), Genco Prosperity Limited (9777), Genco Provence Limited (8246), Genco Pyrenees Limited (8599), Genco Raptor LLC (9767), Genco Reliance Limited (9768), Genco Rhone Limited (8248), Genco Spirit Limited (5650), Genco Success Limited (9769), Genco Sugar Limited (9778), Genco Surprise Limited (9385), Genco Thunder LLC (9769), Genco Tiberius Limited (3614), Genco Titus Limited (3615), Genco Vigour Limited (9770), Genco Warrior Limited (6076), and Genco Wisdom Limited (9771). The Debtors’ business address is 299 Park Avenue, 12th Floor, New York, NY 10171.  Neither Baltic Trading Limited nor its subsidiaries are Debtors.

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Chapter 11 of the Bankruptcy Code dated April 16, 2014, and filed with the Court on April 21, 2014 (as the same has been or may be further modified or supplemented, including by the Plan Supplement (as defined below), the “Prepack Plan”) [ECF No. 14], a copy of which is annexed hereto as Exhibit A, and those certain supplements to the Prepack Plan, dated and filed with the Court on May 15 and June 11, 2014 (as the documents contained therein have been or may be further amended or supplemented, the “Plan Supplement”) [ECF No. 166, 287] and (B) the Disclosure Statement For the Prepack Plan, dated April 16, 2014, and filed with the Court on April 21, 2014 (the “Disclosure Statement”) [ECF No. 14]; and the Court on April 25, 2014 having entered the Order (A) Scheduling a Combined Hearing on Disclosure Statement and Plan Confirmation, (B) Approving Form of Combined Notice of Confirmation Hearing (the “Combined Notice”), Commencement of the Chapter 11 Cases, and Establishment of the Limited Bar Dates, (C) Establishing the Limited Bar Dates, (D) Approving the Rights Offering Procedures, (E) Waiving the Requirements for a Meeting of Creditors or Equity Security Holders and the Filing of Monthly Operating Reports, and (F) Granting Related Relief [ECF No. 46] (the “Scheduling Order” and the underlying motion, the “Scheduling Motion”)² which, among other things, (i) scheduled a combined hearing (the “Combined Hearing”) on and objection deadline for (a) approval of (x) the adequacy of the solicitation procedures used in connection with the prepetition solicitation (and prepetition and postpetition tabulation) of votes to accept or reject the Prepack Plan (the “Solicitation Procedures”) and (y) the Disclosure Statement and (b) confirmation of the Prepack Plan; (ii) approved the form and manner of the notice of the Combined Hearing, Limited Bar Dates and commencement of the Chapter 11 Cases (as defined

 

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² Unless otherwise defined herein, capitalized terms shall have the meanings ascribed to them in the Prepack Plan or the Scheduling Order, as applicable.  The rules of construction contained in section 102 of the Bankruptcy Code shall apply to this Confirmation Order.

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below); (iii) established the Limited Bar Dates; and (iv) approved the Rights Offering Procedures; and the Prepack Plan, Disclosure Statement and appropriate ballots for voting on the Prepack Plan (the “Ballots”), in the forms attached as Exhibit B to the Scheduling Motion, having been duly transmitted to holders of Claims in Classes 3, 4, 5 and 8; and the Court having conducted the Combined Hearing on June 12, 13, 23 & 24, 2014; and the Court having considered the Debtors’ Memorandum of Law in Support of Entry of an Order (I) Approving (A) the Debtors’ Disclosure Statement Pursuant to Sections 1125 and 1126(B) of the Bankruptcy Code, and (B) the Solicitation Procedures, and (II) Confirming the Prepackaged Plan of Reorganization of the Debtors Pursuant to Chapter 11 of the Bankruptcy Code [ECF No. 223]; each of the Confirmation Direct Testimony Declarations³; the Declaration of Craig E. Johnson of GCG, Inc. Certifying the Methodology for the Tabulation of Votes On and Results of Voting for Classes 3, 4 and 5 with Respect to the Prepack Plan [ECF No. 52] (the “Class 3, 4 and 5 Voting Declaration”), the Final Certification of Craig E. Johnson of GCG, Inc. Certifying the Methodology for the Tabulation of Votes On and Results of Voting for Class 8 With Respect to the Prepackaged Plan of Reorganization of the Debtors Pursuant to Chapter 11 of the Bankruptcy Code (the “Class 8 Voting Declaration”, and together with the Class 3, 4 and 5 Voting Declaration, the “Voting Declarations”); the Affidavit of Service of the Solicitation

 

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³ The Confirmation Direct Testimony Declarations are: (a) Declaration of Dr. Adam Kent in Support of Confirmation of the First Amended Prepackaged Plan of Reorganization of the Debtors Under Chapter 11 of the Bankruptcy Code [ECF. No. 279]; (b) Declaration of John James O’Connell, III in Support of Confirmation of the Prepackaged Plan of Reorganization of the Debtors Under Chapter 11 of the Bankruptcy Code [ECF. No. 280]; (c) Declaration of Harry A. Perrin in Support of Confirmation of the First Amended Prepackaged Plan of Reorganization of the Debtors Under Chapter 11 of the Bankruptcy Code [ECF. No. 282]; (d) Declaration of John C. Wobensmith in Support of Entry of an Order (I) Approving (A) the Debtors’ Disclosure Statement Pursuant to Sections 1125 and 1126(B) of the Bankruptcy Code, and (B) the Solicitation Procedures, and (II) Confirming the Prepackaged Plan of Reorganization of the Debtors Pursuant to Chapter 11 of the Bankruptcy Code [ECF No. 285]; (e) Declaration of Dr. Arlie G. Sterling in Support of Confirmation of the First Amended Prepackaged Plan of Reorganization of the Debtors Under Chapter 11 of the Bankruptcy Code [ECF. No. 308]; and (f) Declaration of Timothy R. Coleman in Support of Confirmation of the First Amended Prepackaged Plan of Reorganization of the Debtors Under Chapter 11 of the Bankruptcy Code [ECF. No. 309].

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Package [ECF No. 52], each admitted into evidence at the Combined Hearing; the objections [ECF Nos. 262, 264] and the declarations filed in opposition to confirmation of the Prepack Plan [ECF Nos. 306, 307], the Debtors’ Reply to the Objections of (I) the Official Committee of Equity Security Holders and (II) the Office of the United States Trustee to Confirmation of the Prepackaged Plan of Reorganization of the Debtors Pursuant to Chapter 11 of the Bankruptcy Code [ECF No. 278], and the various responses and statements in support of confirmation filed by the parties in interest [ECF Nos. 272, 273, 274, 275, 286], and the arguments of counsel, testimony and evidence presented at the Combined Hearing; and the Court being familiar with the Prepack Plan, the Disclosure Statement and other relevant factors affecting these Chapter 11 Cases; and the Court having taken judicial notice of the entire docket of the Chapter 11 Cases maintained by the Clerk of the Court and/or its duly appointed agent, and all pleadings and other documents filed, all orders entered, and evidence and arguments made, proffered, or adduced at the hearings held before the Court during the pendency of the Chapter 11 Cases; and the Court having found that due and proper notice has been given with respect to the Combined Hearing and the deadlines and procedures for filing objections to the Disclosure Statement and confirmation of the Prepack Plan in accordance with the Scheduling Order, the Amended Procedural Guidelines for Prepackaged Chapter 11 Cases in the United States Bankruptcy Court for the Southern District of New York, as amended, effective June 27, 2013 (as incorporated by Local Rule 3018-2 and General Order M-454) (the “Guidelines”), title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (as amended, the “Bankruptcy Code”), the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), the Local Bankruptcy Rules for the Southern District of New York (the “Local Rules”), and all other applicable laws, rules, and regulations, in each case as established by the affidavits of service, mailing, and/or publication filed with this

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Court prior to the Combined Hearing (collectively, the “Notice Affidavits”);⁴ and the Court having heard the statements and arguments made by counsel in respect of approval of the Disclosure Statement and confirmation of the Prepack Plan; and the Court having considered any and all objections to the Prepack Plan and its confirmation, the Disclosure Statement, and the Solicitation (as defined below), and all such objections being consensually resolved or withdrawn, or overruled on the merits; and the appearance of all interested parties having been duly noted in the record of the Combined Hearing; and upon the record of the Combined Hearing, and after due deliberation thereon and good and sufficient cause appearing therefor,

 

I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

IT IS DETERMINED, FOUND, ADJUDGED, DECREED AND ORDERED THAT:

 

 

 

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⁴ The Notice Affidavits are located at ECF Nos. 23, 52, 130, 131, 137, 189, 190, 279, 296, 311, 312.

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complies with the applicable provisions of the Bankruptcy Code and should be confirmed.  Venue is proper in this District pursuant to 28 U.S.C. §§ 1408 and 1409.  The Debtors are proper debtors under section 109 of the Bankruptcy Code, and the Debtors are proper proponents of the Prepack Plan under section 1121(a) of the Bankruptcy Code.

 

 

 

 

⁵ For avoidance of doubt, as used in this Confirmation Order, the word “including” means “including, without limitation.”

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Procedures, the Disclosure Statement, or the confirmation of the Prepack Plan, are OVERRULED on the merits.

 

 

 

 

The Ballots⁶ the Debtors used to solicit votes to accept or reject the Prepack Plan from the holders in the Voting Classes adequately addressed the particular needs of the Chapter 11 Cases

 

⁶ Each Voting Class received different Ballots based upon their respective classification.

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and were appropriate for the holders of Claims in the Voting Classes to use to vote to accept or reject the Prepack Plan.  No other or further ballots were required.

 

I.         Prepetition Solicitation.  Prior to the Petition Date, on April 16, 2014, the Debtors, through their solicitation agent, GCG, Inc. (“GCG”) caused the Prepack Plan (excluding the Plan Supplement), the Disclosure Statement, and the applicable Ballots (collectively, the “Solicitation Packages”), to be transmitted and served in compliance with sections 1125 and 1126 of the Bankruptcy Code, the Bankruptcy Rules (including Bankruptcy Rules 3017 and 3018), the Local Rules, the Guidelines, the Scheduling Order, all other applicable provisions of the Bankruptcy Code, and all other applicable rules, laws and regulations applicable to such solicitation.  The Solicitation Packages were transmitted to holders of Claims in the Voting Classes.  The instructions on the respective Ballots advised parties that (i) for a Ballot (or Master Ballot, as appropriate) to be counted with respect to Claims in Voting Classes 3, 4 or 5, such Ballot would have to be properly completed, signed, and returned so that it was actually received by GCG by no later than 10:00 a.m. (prevailing New York time) on April 18, 2014 and (ii) for a Ballot (or Master Ballot, as appropriate) to be counted with respect to Claims in Voting Class 8, such Ballot would have to be properly completed, signed, and returned so that it was actually received by GCG by no later than 4:00 p.m. (prevailing New York time) on May 16, 2014 (collectively, the “Voting Deadlines”).  The periods in which the Debtors solicited acceptances to the Prepack Plan were reasonable periods of time for holders of Claims in the Voting Classes to make an informed decision to accept or reject the Prepack Plan.  The Debtors were not required to solicit votes from the holders of Claims in Class 1 (Other Priority Claims), Class 2 (Other Secured Claims), Class 6 (Prepetition Swap Claims), Class 7 (General Unsecured Claims), or Class 9 (Intercompany Claims) (collectively, the “Unimpaired Claims”) or holders of Equity Interests

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in Class 10 (Subsidiary Equity Interests), as each such Class is Unimpaired under the Prepack Plan.  The Debtors were also not required to solicit votes from the holders of Equity Interests in Class 11 (Equity Interests in Genco), as that Class is deemed to reject the Prepack Plan.  Classes 10 and 11 and the Unimpaired Claims are collectively referred to as the “Non-Voting Classes.”  As described in, and as evidenced by, the Voting Declarations, the transmittal and service of the Solicitation Packages (the “Solicitation”) were timely, adequate and sufficient under the circumstances and no other or further notice was or shall be required.  The Solicitation of votes on the Prepack Plan complied with the Solicitation Procedures, was appropriate and satisfactory based upon the circumstances of the Chapter 11 Cases, was conducted in good faith, and was in compliance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Guidelines, the Scheduling Order, and any other applicable rules, laws, and regulations.  The Debtors, Reorganized Debtors, the Supporting Creditors, and each of their respective affiliates, officers, directors, counsel, advisors, and agents are entitled to the protection of section 1125(e) of the Bankruptcy Code.  The continued receipt and tabulation of Ballots from holders of Claims in Class 8 after the Petition Date was proper and in compliance with Bankruptcy Code section 1125(g).

 

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Ballots were fair, reasonable, and complied with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Guidelines, the Scheduling Order, and all other applicable rules, laws, and regulations.  As described below, (a) those creditors holding Claims in the Voting Classes who submit a Ballot voting to reject the Prepack Plan and chose not to opt out of the Releases (as defined below) will be deemed to have consented to the Releases; (b) those that vote to accept the Prepack Plan are automatically deemed to accept the Releases; and (c) those that elect not to return a Ballot are automatically deemed to accept the Releases.

 

 

 

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such filing complied the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and the Guidelines, the Scheduling Order, and all other applicable rules, laws, and regulations, and no other or further notice of the materials in the Plan Supplement is or shall be required.

 

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the terms of the notice of the Combined Hearing, including the relevant dates and deadlines.  Such notice was adequate and sufficient pursuant to section 1128 of the Bankruptcy Code, Bankruptcy Rules 2002(b) and 3020, the Guidelines and other applicable law and rules, and no other or further notice is or shall be required.

 

STANDARDS FOR CONFIRMATION

 

 

 

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Claims and Equity Interests contains only Claims or Equity Interests that are substantially similar to the other Claims or Equity Interests within that Class.  The Prepack Plan therefore satisfies sections 1122 and 1123(a)(1) of the Bankruptcy Code.

 

 

 

 

 

 

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directors and officers that are consistent with the interests of all holders of Claims and Equity Interests and public policy.  The initial directors and officers of Reorganized Genco were disclosed prior to the Combined Hearing as part of the Plan Supplement.  The initial directors and officers of the Reorganized Debtor Subsidiaries are the current directors and officers of the Debtor Subsidiaries.

 

 

 

 

 

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Agreement and the Prepack Plan were the best restructuring alternatives available to the Debtors.  Contrary to the allegations of the Equity Committee, the Prepack Plan was negotiated and proposed with the intention of accomplishing a successful reorganization, and for no ulterior purpose.  The Debtors’ good faith is evident from the facts and records of the Chapter 11 Cases, the Disclosure Statement, the Prepack Plan, the record of the Combined Hearing and the other proceedings in these Chapter 11 Cases.  The Prepack Plan fairly achieves a result consistent with the objectives and purposes of the Bankruptcy Code, including the provisions of the Bankruptcy Code favoring consensual reorganization such as “prepackaged” chapter 11 cases and is consistent with other prepackaged cases that have been filed before this Court.  In so finding, the Court has considered the totality of the circumstances in these Chapter 11 Cases.  The Prepack Plan is the result of extensive good faith, arm’s-length negotiations between the Debtors and certain of their principal constituencies, including the Backstop Parties, the Supporting 2007 Facility Lenders, the Supporting $253 Million Facility Lenders, the Supporting $100 Million Facility Lenders, the Prepetition Agents, the administrative agents and lenders under the Amended and Restated Term Loan Facilities, and the Supporting Noteholders, and, as evidenced by the overwhelming acceptance of the Prepack Plan, achieves the goal of consensual reorganization embodied by the Bankruptcy Code.  The Debtors and each of their respective officers, directors, employees, advisors and professionals (i) acted in good faith in negotiating, formulating, and proposing, where applicable, the Prepack Plan and the agreements, compromises, settlements, transactions, and transfers contemplated thereby, and (ii) will be acting in good faith in proceeding to (a) consummate the Prepack Plan and the agreements, compromises, settlements, transactions, transfers, and documentation contemplated by the Prepack Plan, including, but not limited to, the Plan Supplement documents, and (b) take any

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actions authorized and directed or contemplated by this Confirmation Order.  Thus, the Prepack Plan satisfies the requirements of section 1129(a)(3) of the Bankruptcy Code.

 

 

 

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the Reorganized Debtors will have sufficient funds, including an additional $100 million through a fully-backstopped Rights Offering, available to meet their obligations under the Prepack Plan.  The Debtors have demonstrated a reasonable assurance of the Prepack Plan’s prospects for success.

 

 

 

 

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adduced at, or prior to, the Combined Hearing is persuasive and credible, has not been controverted by other credible evidence, and establishes that the Prepack Plan does not discriminate unfairly and is fair and equitable with respect to Class 11 (Equity Interests in Genco), as required by section 1129(b)(2)(C) of the Bankruptcy Code because (a) no holder of a Claim or Equity Interest will receive more than it is legally entitled to receive on account of its Claim or Equity Interest and (b) the Prepack Plan does not provide a recovery on account of any Claim or Equity Interest that is junior to Class 11 (Equity Interests in Genco).  Thus, the Prepack Plan may be confirmed notwithstanding the deemed rejection of the Prepack Plan by Class 11 (Equity Interests in Genco).

 

 

 

 

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Hearing, (i) the Debtors, (ii) the Reorganized Debtors, (iii) the Supporting Creditors, (iv) the Backstop Parties, (v) the Convertible Notes Indenture Trustee, (vi) the Prepetition Agents, (vii) the respective successors, predecessors, control persons, members, officers, directors, employees and agents of each of the entities in (i) through (vi), and (viii) the respective attorneys, financial advisors, investment bankers, accountants, and other professionals retained by such persons, of the entities in (i) through (vi) in each case in their capacities as such, have acted in “good faith” within the meaning of section 1125(e) of the Bankruptcy Code in compliance with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, the Guidelines, and any applicable non-bankruptcy law, rule, or regulation in connection with all of their respective activities relating to the Prepack Plan, including the execution, delivery and performance of the Restructuring Support Agreement and solicitation of acceptances of the Prepack Plan, and are entitled to the protections afforded by section 1125(e) of the Bankruptcy Code.

 

 

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Debtors proposed certain modifications to the Prepack Plan as reflected in the modified or amended versions of the Prepack Plan filed with the Court prior to entry of this Confirmation Order (collectively, the “Prepack Plan Modifications”).  In accordance with Bankruptcy Rule 3019, the Prepack Plan Modifications do not (1) affect the classification of Claims or Equity Interests, (2) constitute material modifications of the Prepack Plan under section 1127 of the Bankruptcy Code, (3) cause the Prepack Plan to fail to meet the requirements of sections 1122 or 1123 of the Bankruptcy Code, (4) materially and adversely change the treatment of any Claims or Equity Interests (other than any Claims and Equity Interests held by those who have accepted such Prepack Plan Modifications in writing or in open court), (5) require resolicitation of any holders of Claims or Equity Interests, or (6) require that any such holders be afforded an opportunity to change previously cast acceptances or rejections of the Prepack Plan.  Under the circumstances, the form and manner of notice of the proposed Prepack Plan Modifications are adequate, and no other or further notice of the proposed Prepack Plan Modifications is necessary or required.

 

 

 

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AG Filiale Deutschlandgeschäft, as agent and security agent under the Amended and Restated $253 Million Facility (the “Amended and Restated $253 Million Facility Agent”, and together with the Amended and Restated $100 Million Facility Agent, the “Amended and Restated Term Loan Agents”), the lenders party to the Amended and Restated $253 Million Facility (the “Amended and Restated $253 Million Facility Lenders”, and together with the Amended and Restated $100 Million Facility Lenders, the “Amended and Restated Term Loan Lenders”)  and each of their respective agents, affiliates, current and former officers, directors, employees, managers, attorneys, financial advisors, accountants, investment bankers, consultants, management companies or other professionals or representatives participated in good faith, arm’s length negotiations with respect to the Amended and Restated Term Loan Facilities, respectively, and all other agreements (including the Amended and Restated $100 Million Credit Agreement and the Amended and Restated $253 Million Credit Agreement), instruments, and ancillary documents to be executed and/or delivered in connection with the foregoing (including, but not limited, to any amendment and restatement agreements, supplemental agreements, intercreditor agreements, subordination agreements, guarantee agreements, pledge and security agreements, mortgages or deeds of trust, exhibits and schedules to any agreement or document, certificates, financing statements to be filed in accordance with the Uniform Commercial Code or other applicable law, account control agreements, customary opinions as may be agreed between the Reorganized Debtors and the respective agent under each of the Amended and Restated Term Loan Facilities, any amendments or modifications to any ancillary documents, including mortgages, assignments, pledges or other security agreements, arising under or in connection with the Prepetition $100 Million Facility and the Prepetition $253 Million Facility, respectively, and any other

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document used to create a validly created, attached, enforceable and perfected security interest) (collectively, the “Amended and Restated Term Loan Facility Documents”).  Any credit extended, letters of credit issued for the account of, or loans made to, the Reorganized Debtors by the Amended and Restated Term Loan Lenders pursuant to the applicable Amended and Restated Term Loan Facilities shall be deemed to have been and has been extended, issued and made in good faith and for legitimate business purposes.  The Amended and Restated Term Loan Agents and the Amended and Restated Term Loan Lenders and each of their respective agents, affiliates, current and former officers, directors, employees, managers, attorneys, financial advisors, accountants, investment bankers, consultants, management companies or other professionals or representatives are therefore entitled to any and all releases, indemnifications or other protections as set forth in the Amended and Restated Term Loan Facility Documents.  The Debtors exercised reasonable business judgment in determining to enter into the Amended and Restated Term Loan Facility and the Amended and Restated Term Loan Facility Documents and have provided sufficient and adequate notice thereof.

 

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credit thereunder and, as such, do not, and hereby are deemed not to constitute fraudulent or avoidable transfers and shall not be otherwise subject to avoidance, recharacterization, disallowance, reduction, subordination (whether equitable, contractual, or otherwise), counterclaims, recoupment, cross-claims, defenses or any other challenges under or pursuant to the Bankruptcy Code or any other applicable domestic or foreign law or regulation by any Person or Entity.  No third-party consents, authorizations, or approvals are required with respect to the Amended and Restated Term Loan Facility Documents and none of the Amended and Restated Term Loan Facility Documents contravene the Reorganized Debtors’ corporate governance documents or constitute any violation of, default under or otherwise contravene any instrument, contract, agreement or other document to which the Reorganized Debtors are a party.  The execution and delivery of the Amended and Restated Term Loan Facility Documents by the applicable Reorganized Debtor and performance of any obligations thereunder will not result in a violation or default under any instrument, contract, agreement or other document to which it is a party, including those instruments, contracts, agreements or other documents addressed, modified, created or reinstated under the Plan.

 

 

 

 

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regarding the assumption, assumption and assignment, or rejection of Executory Contracts and Unexpired Leases are based on and within the sound business judgment of the Debtors, are necessary to the implementation of the Prepack Plan and are in the best interests of the Debtors, their Estates, holders of Claims and other parties in interest in the Chapter 11 Cases.  The Debtors have filed the Rejection Schedule (as it may have been amended or supplemented) as part of the Plan Supplement and have provided notice to the affected counterparties of the Debtors’ determinations regarding the rejection of Executory Contracts or Unexpired Leases.

 

 

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release, injunction, exculpation and compromise provisions, are mutually dependent and non-severable.  In the event that, for any reason, the Effective Date does not occur, the Debtors, the Backstop Parties, the Prepetition 2007 Facility Lenders, the Prepetition $253 Million Facility Lenders, the Prepetition $100 Million Facility Lenders, and the Convertible Noteholders reserve all of their respective rights with respect to any and all disputes resolved and settled under the Prepack Plan.

 

 

 

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holders of Claims and Equity Interests; (ii) are fair, equitable, and reasonable; and (iii) are integral elements of the restructuring and resolution of the Chapter 11 Cases in accordance with the Prepack Plan.  The failure to approve the Releases would seriously impair the Debtors’ ability to confirm the Prepack Plan.  Each provision of the Releases (i) is within the jurisdiction of the Court under 28 U.S.C. § 1334; (ii) is an essential means of implementing the Prepack Plan pursuant to section 1123(a)(5) of the Bankruptcy Code; (iii) is an integral element of the settlements and transactions incorporated into the Prepack Plan; (iv) confers a material benefit on, and is in the best interests of, the Debtors, their estates, and holders of Claims and Equity Interests; (v) is important to the overall objectives of the Prepack Plan to finally resolve all Claims and Equity Interests among or against the parties in interest in the Chapter 11 Cases with respect to the Debtors’ reorganization; and (vi) is consistent with sections 105, 1123 and 1129 of the Bankruptcy Code and all other applicable law.

 

 

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holders of Impaired Claims other than those who voted to reject the Prepack Plan and have also opted out of the Releases; (c) the Supporting Creditors; (d) the Backstop Parties; (e) to the fullest extent permissible by law (i) holders of Unimpaired Claims and (ii) holders of Equity Interests; and (f) with respect to the foregoing Persons in (a) through (e), such Person’s current subsidiaries, officers, directors, principals, members, employees, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, equity holders, partners, and other professionals, in each case solely in their capacity as such.  The Ballots explicitly stated the following: (a) those who submit a Ballot voting to reject the Prepack Plan and choose not to opt out of the Releases will be deemed to have consented to the Releases; (b) those that vote to accept the Prepack Plan are automatically deemed to accept the Releases; and (c) those that elect not to return a Ballot are automatically deemed to accept the Releases.

 

 

 

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Equity Commitment Agreement) has occurred.  Without limiting, impairing or modifying any previous order of this Court approving or governing the Rights Offering, the terms and conditions of the Rights Offering and the Equity Commitment Agreement are fair and reasonable and are in the best interests of the Debtors, their Estates, the Backstop Parties, the holders of the Lender Rights and Lender Oversubscription Rights, and the holders of the Noteholder Rights, and do not conflict with and were conducted and consummated in compliance with applicable law.  The Equity Commitment Agreement and the Rights Offering were negotiated at arms’-length and in good faith, including in connection with the offer, issuance and sale of the New Genco Common Stock pursuant thereto.  The Debtors’ and Reorganized Debtors’ obligations under the Equity Commitment Agreement are valid, binding, enforceable in accordance with their terms and are not in contravention of any applicable law.  The Debtors and the Reorganized Debtors’ compliance with provisions of the Equity Commitment Agreement, performance of their obligations thereunder and the consummation of the transactions contemplated thereby, will not result in any violation of applicable law.

 

 

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incentivize performance by management.  The compensation committee of the Debtors’ board of directors approved the Management Incentive Program in an exercise of its reasonable business judgment.   The allocation of rights under the Management Incentive Program shall be determined by the New Board following the Effective Date, and will be available only to post-Effective Date directors, officers, and other management of the Reorganized Genco.  The implementation and administration of the Management Incentive Program will not occur until the Effective Date of the Prepack Plan and will be subject to the oversight of the New Board in accordance with the terms of the agreements relating to the Management Incentive Program.  The Debtors have also provided adequate notice of the material terms of the Management Incentive Program as part of the Plan Supplement.

 

 

 

II.

ORDER

 

BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS THEREFORE HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

 

 

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to execute and deliver all agreements, documents, instruments, securities and certificates relating to such agreements and perform their obligations thereunder, including, without limitation, amendment or modification of such documents in accordance with their terms and applicable non-bankruptcy law (including Marshall Islands law) and the payment of all fees due thereunder or in connection therewith.  The approval of the New Genco Charter and the New Genco By-Laws hereunder shall be deemed to be the requisite approval of the same by the shareholders of Genco for purposes of applicable non-bankruptcy law.

 

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Order as well as the documents and instruments executed and delivered in connection therewith, including the documents, exhibits, instruments and other materials comprising the Plan Supplement.  Without limiting the foregoing, the Reorganized Debtors may pay the charges that they incur from and after the Effective Date for Fee Claims, disbursements, expenses or related support services (including fees relating to the preparation of Professional fee applications) without application to, or the approval of, the Court.

 

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provided in the Prepack Plan shall be in complete satisfaction, discharge and release of Claims (including any Intercompany Claims resolved or compromised after the Effective Date by the Reorganized Debtors), Equity Interests and Causes of Action of any nature whatsoever, including any interest accrued on Claims or Equity Interests from and after the Petition Date, whether known or unknown, against, liabilities of, Liens on, obligations of, rights against and Equity Interests in, the Debtors or any of their assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Prepack Plan on account of such Claims and Equity Interests, including demands, liabilities and Causes of Action that arose before the Effective Date, any liability (including withdrawal liability) to the extent such Claims or Equity Interests relate to services performed by employees of the Debtors before the Effective Date and that arise from a termination of employment, any contingent or non-contingent liability on account of representations or warranties issued on or before the Effective Date, and all debts of the kind specified in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, in each case whether or not:  (i) a Proof of Claim based upon such debt, right or Equity Interest is filed or deemed filed pursuant to section 501 of the Bankruptcy Code; (ii) a Claim or Equity Interest based upon such debt, right or Equity Interest is Allowed; or (iii) the holder of such a Claim or Equity Interest has accepted the Prepack Plan or is entitled to receive a distribution hereunder.  Any default by the Debtors or their affiliates with respect to any Claim or Equity Interest that existed immediately before or on account of the filing of the Chapter 11 Case shall be deemed cured on the Effective Date.

 

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 are so ordered and shall be immediately effective on the Effective Date of the Prepack Plan without further order or action on the part of the Court or any other party.

 

 

 

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Released Parties or the property or estate of such Released Parties on account of or in connection with or with respect to any such Claims or Equity Interests; (iv) asserting any right of setoff or subrogation of any kind against any obligations due from the Debtors or the Reorganized Debtors or against the property or interests in property of the Debtors on account of any such Claim; and (v) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Equity Interests released, settled or discharged pursuant to the Prepack Plan.

 

 

 

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Reorganized Debtors, each of their respective successors and assigns, and each of their assets and properties, and each of the Released Parties, any other Claims or Equity Interests based upon any documents, or instruments or any act or omission, transaction or other activity of any kind or nature that occurred before the Effective Date.

 

 

 

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other documents, provided, however, that (i)  no individual shall be released from any act or omission that constitutes gross negligence or willful misconduct as determined by a Final Order, (ii) other than with respect to the Prepetition 2007 Facility Claims, the Prepetition $100 Million Facility Claims, the Prepetition $253 Million Claims, and the Convertible Note Claims, the Reorganized Debtors shall not relinquish or waive the right to assert any of the foregoing as a legal or equitable defense or right of set-off or recoupment against any Claims of any such persons asserted against the Debtors, (iii) the foregoing release shall not apply to obligations arising under the Amended and Restated Term Loan Facilities and (iv) the foregoing release applies to the Released Parties solely in their respective capacities described in the Prepack Plan.

 

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transactions or events giving rise to, any Claim or Equity Interest that is treated under the Prepack Plan, the Chapter 11 Cases, the documents included in the Plan Supplement, the Rights Offering, the Equity Commitment Agreement, the Restructuring Support Agreement, the Prepack Plan, or the Disclosure Statement or related agreements, instruments or other documents, provided, however, the foregoing release shall not (i) apply to obligations arising under the Prepack Plan, (ii) apply to obligations arising under the Amended and Restated Term Loan Facilities, (iii) be construed to prohibit a party in interest from seeking to enforce the terms of the Prepack Plan, and (iv) apply to any act or omission that constitutes gross negligence or willful misconduct as determined by a Final Order.  The foregoing releases shall apply to the Released Parties solely in their respective capacities described in the Prepack Plan.  For the avoidance of doubt, nothing in Article VI.K.2 of the Prepack Plan shall be deemed to release any Claim that is unrelated to the Debtors, the purchase, sale or rescission of the purchase or sale of any security of the Debtors or the Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Equity Interest that is treated under the Prepack Plan, the Chapter 11 Cases, the documents included in the Plan Supplement, the Rights Offering, the Equity Commitment Agreement, the Restructuring Support Agreement, the Prepack Plan, or the Disclosure Statement or related agreements, instruments, or other documents.

 

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preparation and filing of, the Chapter 11 Cases, the preparation and negotiation of the Equity Commitment Agreement and the Restructuring Support Agreement, the preparation, negotiation, and filing of the Prepack Plan, the Disclosure Statement, the negotiation of the documents included in the Plan Supplement, the pursuit of approval of the Disclosure Statement or the solicitation of votes for confirmation of the Prepack Plan, the Chapter 11 Cases, the Rights Offering, the consummation of the Prepack Plan, the administration of the Prepack Plan or the property to be distributed under the Prepack Plan, or any transaction contemplated by or distributions made pursuant to the Prepack Plan or Disclosure Statement or in furtherance thereof except for any act or omission that constitutes willful misconduct or gross negligence as determined by a Final Order, and (ii) in all respects, shall be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under the Prepack Plan.  This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations and any other applicable law or rules protecting such Released Parties from liability.  Without limiting the generality of the foregoing, the Released Parties shall be entitled to and granted the protections and benefits of section 1125(e) of the Bankruptcy Code.  Pursuant to section 105 of the Bankruptcy Code, no holder or purported holder of an Administrative Claim, Claim or Equity Interest shall be permitted to commence or continue any Cause of Action, employment of process, or any act to collect, offset, or recover any Claim against a Released Party that accrued on or before the Effective Date and that has been released or waived pursuant to the Prepack Plan.

 

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of discharge, release or injunction to which the Debtors or Reorganized Debtors are entitled to under the Bankruptcy Code.  The discharge, release and injunction provisions contained in the Prepack Plan and this Confirmation Order are not intended and shall not be construed to bar the United States from, subsequent to entry of this Confirmation Order, pursuing any police or regulatory action, except to the extent those discharge and injunctive provisions bar a Governmental Unit from pursuing Claims.

 

Notwithstanding anything contained in the Prepack Plan or this Confirmation Order to the contrary, nothing in the Prepack Plan or this Confirmation Order shall discharge, release, impair or otherwise preclude: (1) any liability to a Governmental Unit that is not a Claim; (2) any Claim of a Governmental Unit arising on or after the Confirmation Date; (3) any valid right of set-off or recoupment of the United States against a Debtor; or (4) any liability of the Debtors or Reorganized Debtors under environmental law to any Governmental Unit as the owner or operator of property that such Entity owns or operates after the Confirmation Date, except those obligations to reimburse costs expended or paid by a Governmental Unit before the Petition Date or to pay penalties owing to a Governmental Unit for violations of environmental laws or regulations that occurred before the Petition Date.  Nor shall anything in the Prepack Plan or this Confirmation Order: (i) enjoin or otherwise bar the United States or any Governmental Unit from asserting or enforcing, outside the Court, any liability described as not discharged in the preceding sentence; or (ii) divest any court of jurisdiction to determine whether any liabilities asserted by the United States or any Governmental Unit are discharged or otherwise barred by the Prepack Plan, this Confirmation Order, or the Bankruptcy Code.

 

Moreover, nothing in the Prepack Plan or this Confirmation Order shall release or exculpate any non-Debtor, including any Released Parties, from any liability to the United

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States, including but not limited to any liabilities arising under the Internal Revenue Code, the environmental laws, or the criminal laws against the Released Parties, nor shall anything in the Prepack Plan or this Confirmation Order enjoin the United States from bringing any claim, suit, action or other proceeding against the Released Parties for any liability whatsoever; provided, however, that the foregoing sentence shall not limit the scope of discharge granted to the Debtors under sections 524 and 1141 of the Bankruptcy Code.

 

 

 

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agreement or document entered into in connection therewith, which shall become effective and binding in accordance with the Prepack Plan.

 

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Eligible Noteholder shall receive its Pro Rata share of the Convertible Notes Equity Distribution, and the Noteholder Rights, and (ii) each holder of an Allowed Convertible Note Claim that is a Non-Eligible Noteholder shall receive a Cash payment equal to the value of the Noteholder Rights and Convertible Notes Equity Distribution such Non-Eligible Noteholder would have received if it was an Eligible Noteholder.  The Debtors have also confirmed to their reasonable satisfaction that each holder of a Prepetition 2007 Facility Claim is a QIB or an Accredited Investor.

 

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MIP Primary Equity and New Genco MIP Warrants to be issued pursuant to the Prepack Plan shall be duly authorized, validly issued, fully paid and non-assessable.

 

 

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347(b) of the Bankruptcy Code, become the property of the Reorganized Debtors against which such Convertible Note Claim was Allowed, and the entitlement of such Record Date Convertible Noteholders to such distribution shall be extinguished.  Notwithstanding the foregoing, if any Record Date Convertible Noteholder believes that it has reasonably demonstrated that it is an Eligible Noteholder or Non-Eligible Noteholder, and the Debtors or Reorganized Debtors dispute such demonstration, then such Record Date Convertible Noteholder may submit such dispute to the Court before the expiration of eighteen (18) months after the Effective Date, and the time deadline of eighteen (18) months shall be tolled until the dispute is resolved.  For ease of distribution, the New Genco Equity Warrants may be issued in certificated form to holders of record of Equity Interests in Genco on the Effective Date.

 

 

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Stock, the New Genco Equity Warrants, the Rights, the New Genco MIP Primary Equity, the New Genco MIP Warrants, and the security interests in favor of the lenders under each of the Amended and Restated Term Loan Facilities, (ii) the making or assignment of any lease or sublease, or (iii) the making or delivery of any other instrument whatsoever, in furtherance of or in connection with the Prepack Plan, shall not be subject to any stamp, conveyance, mortgage, sales or use, real estate transfer, recording or other similar tax or governmental assessment, and upon entry of this Confirmation Order, the appropriate state or local governmental officials or agents shall forego the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental assessment.

 

 

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all acts and actions required to implement the Amended and Restated Term Loan Facilities, including to execute and/or deliver (as the case may be) the Amended and Restated Term Loan Facility Documents and all other documents, instruments and agreements (including, for the avoidance of doubt, those that grant or amend security interests in collateral (if any)) necessary or appropriate to satisfy the conditions to the effectiveness of the Amended and Restated Term Loan Facilities.  Such documents, instruments and agreements (including, for the avoidance of doubt, those identified in clauses (i) and (ii) in this paragraph 33(a)) shall become effective and enforceable in accordance with their terms on the Effective Date, are hereby ratified, and shall constitute legal, valid, binding and authorized obligations of the applicable Reorganized Debtors to which all creditors (existing and hereafter) are and shall be bound thereby.  For the avoidance of doubt, any resolutions by the existing Board of Directors ratifying the entry into the Amended and Restated Term Loan Facilities prior to the Effective Date shall be deemed binding upon the New Board without the necessity of further action, including ratification, by the New Board.  The Debtors and the Reorganized Debtors, as applicable, are hereby authorized without further court approval or notice to any other party, to execute and deliver the Amended and Restated Term Loan Facility Documents and fully perform their obligations thereunder as well as to take any additional or other action that is necessary or appropriate to satisfy the conditions to the effectiveness of the Amended and Restated Term Loan Facilities.

 

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granted pursuant to or in connection with the Prepetition $100 Million Facility and Prepetition $253 Million Facility, respectively, are hereby ratified and reaffirmed by the Debtors and the Reorganized Debtors, as applicable, and on and after the Effective Date, such security interests shall continue without any diminution thereof and shall remain in full force and effect.   For the avoidance of doubt, the agents and lenders under each of the Amended and Restated Term Loan Facilities are authorized to take any action that is necessary or appropriate to validate and perfect the Liens and security interests that are granted or reaffirmed in connection with each facility.

 

 

 

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Amended and Restated Term Loan Facilities or any security interests, claims or guarantees granted or reaffirmed by any party to the Amended and Restated Term Loan Facilities; (ii) the terms and conditions of the Amended and Restated Term Loan Facilities, as in effect at the time of the vacatur, reversal or modification of this Confirmation Order, shall be binding on the Reorganized Debtors and other parties to the agreement, and the parties to the Amended and Restated Term Loan Facilities shall enjoy the same priority of Liens and rights granted to them under the Amended and Restated Term Loan Facilities; and (iii) to the extent this Confirmation Order has been vacated or reversed, any Liens, guarantees or claims reaffirmed or granted to any party pursuant to the Amended and Restated Term Loan Facilities and the Amended and Restated Term Loan Facility Documents shall be (in addition to all other rights and remedies available to the agents and the lenders under the Amended and Restated Term Loan Facilities) deemed to have been granted or reaffirmed by, and shall become obligations of, the predecessors in interest of the Reorganized Debtors.

 

 

 

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Effective Date, unless any such Executory Contract or Unexpired Lease: (i) is expressly identified on the Rejection Schedule; (ii) has been previously rejected by the Debtors by Final Order or has been rejected by the Debtors by order of the Court as of the Effective Date, which order becomes a Final Order after the Effective Date; (iii) is the subject of a motion to reject pending as of the Effective Date; or (iv) is otherwise rejected pursuant to the terms herein.  This Confirmation Order constitutes an order approving such rejections pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date or as otherwise set forth in the Rejection Schedule.

 

 

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such Executory Contract or Unexpired Lease under this Prepack Plan.  Sufficient adequate assurance of future performance has been provided for each assumed Executory Contract or Unexpired Lease.

 

 

 

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⁷ Rejection Damage Claims must be filed so as to be actually received by the Debtors’ notice and claims agent, GCG, Inc., by the Rejection Bar Date and be submitted in one of the following methods: (i) by hand delivery or overnight courier:  Genco Shipping & Trading Limited, c/o GCG, Inc., 5151 Blazer Parkway, Suite A, Dublin, Ohio 43017; or (ii) by first class mail: Genco Shipping & Trading Limited, c/o GCG, Inc., P.O. Box 10054, Dublin, OH 43017-6654.  Rejection Damage Claims may not be delivered by facsimile, telecopy or electronic mail transmission.

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Reorganized Debtors or further notice to or action, order, or approval of the Court, and any Rejection Damage Claim shall be deemed fully satisfied, released and discharged, notwithstanding anything in the Schedules or a Proof of Claim to the contrary.

 

 

 

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Person may rely on the absence of a specific reference in the Prepack Plan or the Disclosure Statement to any Cause of Action against them as any indication that the Debtors or Reorganized Debtors, as applicable, will not pursue any and all available Causes of Action against such Person.  The Debtors or Reorganized Debtors, as applicable, expressly reserve all rights to prosecute any and all Causes of Action against any Person, in accordance with the Prepack Plan.  From and after the Effective Date, the Debtors or Reorganized Debtors, as applicable, shall have the exclusive right, authority and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw or litigate to judgment any Cause of Action and to decline to do any of the foregoing without further notice to or action, order or approval of the Court.  The Reorganized Debtors are deemed representatives of the Estates for the purpose of prosecuting any Claim or Cause of Action and any objections to Claims pursuant to 11 U.S.C. § 1123(b)(3)(B).

 

 

⁸ For the avoidance of doubt, on the Effective Date, the Reorganized Debtors shall pay, in full, in Cash, the unpaid reasonable fees, expenses, costs, and other charges of the Supporting Creditors without the need to file and serve an application for allowance of Fee Claims in accordance with Article VI.G of the Prepack Plan.

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be filed and served on the Reorganized Debtors, counsel for the Reorganized Debtors, counsel for the Supporting Creditors, and the requesting party no later than thirty (30) days after the filing of the final applications for compensation or reimbursement (unless otherwise agreed by the party requesting compensation of a Fee Claim).  Other than as set forth herein or in the Prepack Plan, the procedures set forth in the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals [ECF No. 183] shall remain in effect through the Effective Date.  Notwithstanding anything to the contrary in the Prepack Plan or this Confirmation Order, (i) each Reorganized Debtor is authorized to pay the charges that it incurs on or after the Effective Date for Professionals’ fees, disbursements, expenses or related support services (including fees relating to the preparation of Professional fee applications) without application to the Court, and (ii) any Professional who may receive compensation or reimbursement of expenses pursuant to the Order Authorizing the Debtors to Employ and Compensate Certain Professionals in the Ordinary Course of Business (the “Ordinary Course Professionals Order”) [ECF No. 185] may continue to receive such compensation and reimbursement of expenses for services rendered before the Effective Date pursuant to the Ordinary Course Professionals Order without further Court review or approval (except as otherwise provided in the Ordinary Course Professionals Order).

 

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Debtor until the entry of a final decree in such Debtor’s Chapter 11 Case or until such Chapter 11 Case is converted or dismissed.

 

 

 

 

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Confirmation Order shall, pursuant to section 1142 of the Bankruptcy Code and the Reorganization Effectuation Statutes, constitute such consent or approval, and such actions are deemed to have been taken by unanimous action of the directors and stockholders of the appropriate Debtor or Reorganized Debtor.

 

 

 

 

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reasonable fees, expenses, costs, and other charges of: (i) the Prepetition $253 Million Facility Agents (including the fees and expenses of Paul, Weiss, Rifkind, Wharton & Garrison LLP, Stephenson Harwood, LLP and Poles, Tublin, Stratakis & Gonzalez, LLP), (ii) the Prepetition $100 Million Facility Agent (including the fees and expenses of Paul, Weiss, Rifkind, Wharton & Garrison LLP and Orrick, Herrington & Sutcliffe LLP), (iii) the Prepetition 2007 Facility Agent and the lead group of Prepetition 2007 Facility Lenders (including the fees and expenses of Milbank, Tweed, Hadley & McCloy LLP, Seward & Kissel LLP, and Houlihan Lokey Capital, Inc.), (iv) the Supporting Noteholders (including the fees and expenses of Akin Gump Strauss Hauer & Feld LLP and Jefferies LLC), and (v) the agents under the Amended and Restated Term Loan Facilities in accordance with section 20.2 of the Amended and Restated $100 Million Credit Agreement and section 8.1 of the Amended and Restated $253 Million Credit Agreement, shall, in each case, be allowed as Administrative Claims and shall be paid in full, in Cash on or before the Effective Date in accordance with the cash collateral order approved by the Court and the Restructuring Support Agreement approved by the Court , and as required by the underlying credit agreement, indemnity, or fee letter, without application or approval by the Bankruptcy Court.  For the avoidance of doubt, any engagement or fee letters entered into between the Supporting Creditors’ legal and financial advisors and the Debtors are executory contracts being assumed by the Debtors on the Effective Date.

 

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interest in a Debtor giving rise to any Claim or Equity Interest (except such certificates, notes or other instruments or documents evidencing indebtedness or obligations of a Debtor that are specifically reinstated pursuant to the Prepack Plan), shall be cancelled as to such Debtor, (and the securities deemed surrendered), and the applicable Reorganized Debtor shall not have any continuing obligations thereunder; and (ii) the obligations of a Debtor pursuant, relating or pertaining to any agreements, indentures, certificates of designation, bylaws or certificate or articles of incorporation or similar documents governing the shares, certificates, notes, bonds, purchase rights, options, warrants or other instruments or documents evidencing or creating any indebtedness or obligation of such Debtor (except such agreements, certificates, notes or other instruments evidencing indebtedness or obligations of a Debtor that are specifically reinstated pursuant to the Prepack Plan or assumed by a Debtor) shall be released and discharged; provided, however, that, notwithstanding the foregoing, the Debtors’ obligations under the Prepetition $100 Million Credit Agreement and the Prepetition $253 Million Credit Agreement shall be amended and superseded by the obligations under the Amended and Restated Term Loan Facilities, respectively; provided, further, however, that notwithstanding the occurrence of the Confirmation Date or the Effective Date, any such indenture or agreement that governs the rights of the holder of a Claim shall continue in effect solely for purposes of (a) allowing holders of such Claims to receive distributions under the Prepack Plan as provided herein, (b) allowing the Prepetition Agents and/or the Convertible Notes Indenture Trustee to coordinate with the Reorganized Debtors to make distributions under the Prepack Plan as provided herein, and deduct therefrom such reasonable compensation, fees, and expenses due thereunder or incurred in making such distributions, to the extent not paid by the Debtors and authorized under such indenture or agreement, (c) allowing the Convertible Notes Indenture Trustee to

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exercise any charging liens it may have under the Convertible Notes Indenture against any such distributions and (d) preserving any charging lien or indemnification rights of the Convertible Notes Indenture Trustee under the Convertible Notes Indenture against the holders of the Convertible Notes.  For the avoidance of doubt, nothing in this paragraph shall affect the discharge of or result in any obligation, liability or expense of the Debtors or Reorganized Debtors or affect the discharge of Claims or Equity Interests pursuant to the Bankruptcy Code, this Confirmation Order or the Prepack Plan, or result in any additional obligation, expense or liability of the Debtors or Reorganized Debtors. On and after the Effective Date, all duties and responsibilities of the Prepetition Agents and the Convertible Notes Indenture Trustee shall be discharged except to the extent required to effectuate the Prepack Plan; provided that the Prepetition $100 Million Facility Agent and the Prepetition $253 Million Facility Agents, respectively, shall continue in such capacities under the Amended and Restated $100 Million Facility Credit Agreement and the Amended and Restated $253 Million Facility Credit Agreement, respectively.

 

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to, and in reliance on, this Confirmation Order prior to the effective date of such reversal, modification or vacatur shall be governed in all respects by the provisions of this Confirmation Order and the Prepack Plan and all related documents or any amendments or modifications thereto.

 

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practicable after the entry of this Confirmation Order, the Debtors shall post a copy of this Confirmation Order on the Debtors’ restructuring website at www.gencorestructuring.com.  As soon as practicable after the Effective Date, the Debtors or the Reorganized Debtors shall make copies of the Confirmation Notice and Notice of Effective Date available on the Debtors’ restructuring website at www.gencorestructuring.com.  The Debtors or the Reorganized Debtors will also file a Form 8-K with the Securities Exchange Commission as soon as reasonably practicable after the Effective Date.

 

 

 

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attorneys, financial advisors, and other agents shall terminate.  Notwithstanding the foregoing, the retained professionals for the Equity Committee shall continue for the limited purpose of filing applications for compensation pursuant to the Order Establishing Procedures for Interim Compensation and Reimbursement of Expenses of Professionals [ECF. No. 183] and dismissing the RSA Appeal (as defined below).

 

 

 

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one hand, and this Confirmation Order, on the other, the provisions of this Confirmation Order shall govern.

 

 

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Dated:

July 2, 2014 New York, New York

 

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