THIS IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION …strettodocs.s3.amazonaws.com/files/47512377-646e-4e52-bc4b-d2e… · 1.54 6EPI Confirmation Date ... 1.129 Statutory Fees

THIS IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION OF THE EPI PLAN. ACCEPTANCE OR REJECTIONS MAY NOT BE SOLICITED UNTIL THE

EPI DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY COURT. THE EPI PLAN IS BEING SUBMITTED FOR APPROVAL BUT HAS NOT

BEEN APPROVED BY THE BANKRUPTCY COURT.

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

ELK PETROLEUM, INC.,1

Debtor.

Chapter 11

Case No. 19-11157 (LSS)

PLAN OF LIQUIDATION OF ELK PETROLEUM, INC., PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE

CHIPMAN BROWN CICERO & COLE, LLP William E. Chipman, Jr. (No. 3818) Mark L. Desgrosseilliers (No. 4083) Hercules Plaza 1313 North Market Street, Suite 5400 Wilmington, Delaware 19801 Telephone: (302) 295-0191 Facsimile: (302) 295-0199 Email: [email protected] [email protected]

Special Counsel for Elk Petroleum, Inc.

1 The Debtor is Elk Petroleum, Inc. (8606). The Debtor is Elk Petroleum, Inc. (8606). The address of the

Debtor is Elk Petroleum, Inc., c/o Matthew Doheny, Chief Restructuring Officer, North Country Capital LLC, 215 Washington Street, Suite 006, Watertown, NY 13601.

Case 19-11157-LSS Doc 872 Filed 05/29/20 Page 1 of 51

TABLE OF CONTENTS

INTRODUCTION ....................................................................................................................................... 1

ARTICLE I .................................................................................................................................................. 2

A. SCOPE OF DEFINITIONS ............................................................................................................. 2

B. DEFINITIONS ................................................................................................................................. 2

1.1 503(b)(9) Claims ....................................................................................................................... 2 1.2 AB ............................................................................................................................................ 2 1.3 AB Co-Invest ............................................................................................................................. 2 1.4 AB Parties ................................................................................................................................. 2 1.5 ACR ........................................................................................................................................... 2 1.6 Administrative Claim ................................................................................................................ 2 1.7 Administrative Tax Claim ......................................................................................................... 2 1.8 Affiliated Cases ......................................................................................................................... 2 1.9 Affiliated Debtors ...................................................................................................................... 2 1.10 Allowed ..................................................................................................................................... 2 1.11 Allowed EPI Preferred Interests ................................................................................................ 3 1.12 Assets ........................................................................................................................................ 3 1.13 Avoidance Actions .................................................................................................................... 3 1.14 Ballot ......................................................................................................................................... 3 1.15 Bankruptcy Code ....................................................................................................................... 3 1.16 Bankruptcy Court ...................................................................................................................... 3 1.17 Bankruptcy Rules ...................................................................................................................... 3 1.18 Bar Date ..................................................................................................................................... 4 1.19 Beneficiaries .............................................................................................................................. 4 1.20 Board ......................................................................................................................................... 4 1.21 BSP ............................................................................................................................................ 4 1.22 Business Day ............................................................................................................................. 4 1.23 Cash ........................................................................................................................................... 4 1.24 Causes of Action ....................................................................................................................... 4 1.25 Chapter 11 Case......................................................................................................................... 4 1.26 Chapter 11 Professional Fee Claims.......................................................................................... 4 1.27 Claim ......................................................................................................................................... 4 1.28 Claims Agent ............................................................................................................................. 4 1.29 Claims Objection Deadline ....................................................................................................... 4 1.30 Class .......................................................................................................................................... 4 1.31 Class 3 Distribution ................................................................................................................... 5 1.32 Class 4 Distribution ................................................................................................................... 5 1.33 Conflicts Committee .................................................................................................................. 5 1.34 Debtor ........................................................................................................................................ 5 1.35 COP ................................................................................................................................5 1.36 Deficiency Claim ....................................................................................................................... 5 1.37 Disallowed Claim ...................................................................................................................... 5


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1.38 Disallowed EPI Preferred Interests ........................................................................................... 5 1.39 Disputed Claims ........................................................................................................................ 5 1.40 Distribution ................................................................................................................................ 5 1.41 Distribution Dates...................................................................................................................... 5 1.42 Distribution Reserve .................................................................................................................. 5 1.43 EOS ........................................................................................................................................... 6 1.44 EOS Sale Order ......................................................................................................................... 6 1.45 EPA ........................................................................................................................................... 6 1.46 EPA Confirmation Date ............................................................................................................ 6 1.47 EPA Confirmation Order ........................................................................................................... 6 1.48 EPA Liquidating Trust .............................................................................................................. 6 1.49 EPA Liquidating Trust Agreement ............................................................................................ 6 1.50 EPA Liquidating Trust Assets ................................................................................................... 6 1.51 EPA Plan ................................................................................................................................... 6 1.52 EPA Warrants ............................................................................................................................ 6 1.53 EPI ..................................................................................................................................6 1.54 EPI Confirmation Date .............................................................................................................. 6 1.55 EPI Confirmation Hearing ......................................................................................................... 7 1.56 EPI Confirmation Order ............................................................................................................ 7 1.57 EPI Disclosure Statement .......................................................................................................... 7 1.58 EPI Disclosure Statement Approval Order ................................................................................ 7 1.59 EPI Effective Date ..................................................................................................................... 7 1.60 EPI Interest ................................................................................................................................ 7 1.61 EPI Liquidating Trust ................................................................................................................ 7 1.62 EPI Liquidating Trust Agreement ............................................................................................. 7 1.63 EPI Liquidating Trust Assets .................................................................................................... 7 1.64 EPI Liquidating Trustees ........................................................................................................... 7 1.65 EPI Liquidating Trust Operating Expenses ............................................................................... 7 1.66 EPI Plan ..................................................................................................................................... 8 1.67 EPI Plan Confirmation Hearing ................................................................................................ 8 1.68 EPI Plan Supplement ................................................................................................................. 8 1.69 EPI Preferred Interest ................................................................................................................ 8 1.70 EPI Preferred Interests Liquidation Trust Units ........................................................................ 8 1.71 EPI Subordinated Claim ............................................................................................................ 8 1.72 EPL ............................................................................................................................................ 8 1.73 Equity Committee...................................................................................................................... 8 1.74 Equity Committee Members ..................................................................................................... 8 1.75 Estate ......................................................................................................................................... 8 1.76 Exculpated Parties ..................................................................................................................... 9 1.77 Exhibit ....................................................................................................................................... 9 1.78 Face Amount ............................................................................................................................. 9 1.79 Final Distribution Date .............................................................................................................. 9 1.80 Final Distribution Report ........................................................................................................... 9 1.81 Final Order ................................................................................................................................ 9 1.82 First Distribution Date ............................................................................................................... 9 1.83 Fulcrum ..................................................................................................................................... 9


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1.84 General Unsecured Claim ......................................................................................................... 9 1.85 Global Settlement Agreement ................................................................................................. 10 1.86 Global Settlement Order .......................................................................................................... 10 1.87 Grieve CO2 .............................................................................................................................. 10 1.88 Grieve Entities ......................................................................................................................... 10 1.89 Grieve Pipeline ........................................................................................................................ 10 1.90 Guaranty Agreement ............................................................................................................... 10 1.91 GUC Liquidation Trust Distribution ....................................................................................... 10 1.92 Holder ...................................................................................................................................... 10 1.93 Impaired .................................................................................................................................. 10 1.94 Insurance Policies .................................................................................................................... 10 1.95 Insurer ...................................................................................................................................... 10 1.96 Intercompany Claims .............................................................................................................. 10 1.97 Internal Revenue Code ............................................................................................................ 10 1.98 Liens ........................................................................................................................................ 11 1.99 LIM .......................................................................................................................................... 11 1.100 Liquidation Trust Units ........................................................................................................... 11 1.101 Madden .................................................................................................................................... 11 1.102 Madden Insurance Proceeds ........................................................................................11 1.103 Madden Liquidation .....................................................................................................11 1.104 Miscellaneous Secured Claim ................................................................................................. 11 1.105 Net Recoveries ........................................................................................................................ 11 1.106 Other Professional Claim ........................................................................................................ 11 1.107 Person ...................................................................................................................................... 11 1.108 Petition Date ............................................................................................................................ 11 1.109 Post-EPI Effective Date Claims .............................................................................................. 12 1.110 Post-EPI Effective Date Debtor .............................................................................................. 11 1.111 Preferred Interest Liquidation Trust Distribution .................................................................... 11 1.112 Preferred Interest Representative ............................................................................................ 11 1.113 Priority Non-Tax Claim ........................................................................................................... 12 1.114 Priority Tax Claim ................................................................................................................... 12 1.115 Pro Rata ................................................................................................................................... 12 1.116 Professional Claim Bar Date ................................................................................................... 12 1.117 Professional Fee Order ............................................................................................................ 12 1.118 Professional Person ................................................................................................................. 12 1.119 Record Date or Distribution Record Date ............................................................................... 12 1.120 Related Parties ......................................................................................................................... 12 1.121 Released Parties ....................................................................................................................... 13 1.122 Resolute Aneth ........................................................................................................................ 13 1.123 Scheduled ................................................................................................................................ 13 1.124 Schedules ................................................................................................................................. 13 1.125 Section 503 Deadline ............................................................................................................... 13 1.126 Secured Claim ......................................................................................................................... 13 1.127 Secured Creditor ...................................................................................................................... 13 1.128 Sole Shareholder...................................................................................................................... 13 1.129 Statutory Fees .......................................................................................................................... 14


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1.130 Subsequent Distribution Date .................................................................................................. 13 1.131 Substantial Contribution Claim ............................................................................................... 13 1.132 Tax Refunds ............................................................................................................................ 13 1.133 Third Party Claim .................................................................................................................... 14 1.134 Unimpaired .............................................................................................................................. 14 1.135 Unpaid Chapter 11 Professional Fee Claims ........................................................................... 14

C. RULES OF INTERPRETATION: APPLICATION OF DEFINITIONS, RULES OF CONSTRUCTION, AND COMPUTATION OF TIME ............................................................... 14

D. EXHIBITS ..................................................................................................................................... 15

ARTICLE II. UNCLASSIED CLAIMS .................................................................................................. 15

2.1 Unpaid Chapter 11 Professional Fee Claims ........................................................................... 15

2.2 Administrative Claims – Other Professional Claims ............................................................... 15

(a) Final Fee Applications; Payment of Other Professional Claims ....................................... 15

(b) Payment of Interim Amounts ............................................................................................ 15

(c) Payment of Professional Fee Claims ................................................................................ 15

(d) Post EPI Effective Date Services ...................................................................................... 15

2.3 Administrative Claims - Substantial Contribution Compensation and Expenses Bar Date .... 16

2.4 Administrative Claims – Allowed 503(b)(9) Claims .............................................................. 16

2.5 Administrative Claims – Allowed Administrative Tax Claims ............................................... 16

2.6 Administrative Claims - Ordinary Course Expenses ............................................................... 16

2.7 Other Administrative Claims Bar Date ................................................................................... 16

2.8 Priority Tax Claims ................................................................................................................. 16

2.9 Statutory Fees .......................................................................................................................... 17

ARTICLE III. CLASSIFICATION OF CLAIMS AND INTERESTS ................................................ 17

3.1 Classification in General ......................................................................................................... 17

3.2 Summary of Classification of Claims and Interests ................................................................ 17

3.3 Elimination of Vacant Classes ................................................................................................ 18

3.4 Voting; Presumptions; Solicitation.......................................................................................... 18

(a) Acceptance by Certain Impaired Classes .......................................................................... 18


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(b) Deemed Acceptance by Unimpaired Classes.................................................................... 19

(c) Deemed Rejection by Impaired Classes ........................................................................... 19

3.5 Cramdown ............................................................................................................................... 19

3.6 No Waiver ............................................................................................................................... 19

ARTICLE IV. PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS ..................... 19

4.1 Class 1 (Miscellaneous Secured Claims) ................................................................................ 19

4.2 Class 2 (Priority Non-Tax Claims) .......................................................................................... 20

4.3 Class 3 (General Unsecured Claims) ....................................................................................... 20

4.4 Class 4 (EPI Preferred Interests) ............................................................................................. 20

4.5 Class 5 (EPI Subordinated Claims) ......................................................................................... 20

4.6 Class 6 (Intercompany Claims) ............................................................................................... 20

4.7 Class 7 (EPI Interests) ............................................................................................................. 20

ARTICLE V. ACCEPTANCE OR REJECTION OF THE EPI PLAN; EFFECT OF REJECTION BY ONE OR MORE IMPAIRED CLASSES OF CLAIMS OR INTERESTS ................................... 20

5.1 Impaired Classes of Claims and Interests Entitled to Vote..........................................20

5.2 Acceptance by an Impaired Class ................................................................................21

5.3 Presumed Acceptances by Unimpaired Classes ..........................................................21

5.4 Classes Deemed to Reject the EPI Plan .......................................................................21

5.5 Non-Consensual Confirmation ....................................................................................21

5.6 Confirmability and Severability of the EPI Plan .........................................................21

ARTICLE VI. MEANS FOR IMPLEMENTATION OF THE EPI PLAN – FORMATION OF THE EPI LIQUIDATING TRUST ......................................................................................21

6.1 Appointment of the EPI Liquidating Trustees .............................................................21

6.2 Creation of EPI Liquidating Trust ...............................................................................22

6.3 Beneficiaries of EPI Liquidating Trust ........................................................................22

6.4 Vesting and Transfer of Assets to the EPI Liquidating Trust ......................................22

6.5 Funding of the EPI Liquidating Trust ..........................................................................22


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6.6 Distributions from the Liquidating Trust .....................................................................23

6.7 Certain Powers and Duties of the EPI Liquidating Trust and the EPI Liquidating Trustees ........................................................................................................................23

(a) General Powers of the EPI Liquidating Trustees ...................................................23

(b) Books and Records ................................................................................................24

(c) Investments of Cash ...............................................................................................25

(d) Deposit of Cash ......................................................................................................25

(e) Costs and Expenses of Administration of the EPI Liquidating Trust ....................25

(f) Reporting................................................................................................................25

6.8 United States Federal Income Tax Treatment of the EPI Liquidating Trust for the EPI Liquidating Trust Assets ..............................................................................................25

6.9 Governance of the Debtor ............................................................................................26

6.10 Term of EPI Liquidating Trust ....................................................................................26

6.11 Limitation of Liability of the EPI Liquidating Trustees ..............................................27

6.12 Standard of Care and Exculpation ...............................................................................27

6.13 Transfer Taxes .............................................................................................................27

6.14 ConocoPhillips/Burlington Resources .........................................................................27

ARTICLE VII. UNEXPIRED LEASES AND EXECUTORY CONTRACTS ......................27

7.1 Contracts and Leases....................................................................................................27

7.2 Rejection Damages Bar Date .......................................................................................28

7.3 Objections to Rejection Damage Claims .....................................................................28

ARTICLE VIII. PROVISIONS GOVERNING DISTRIBUTIONS .......................................28

8.1 Time of Distribution ....................................................................................................28

8.2 Interest on Claims ........................................................................................................28

8.3 Claims Administration Responsibility .........................................................................29

8.4 Procedures for Treating and Resolving Disputed Claims. No Distributions Pending


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Allowance ....................................................................................................................29

(a) Distribution Reserve ..............................................................................................29

(b) Distributions After Allowance ...............................................................................29

(c) Partial Distribution .................................................................................................29

8.5 Delivery of Distributions .............................................................................................30

8.6 Setoff ............................................................................................................................30

(a) By the Debtor, the EPI Liquidating Trustees, or the EPI Liquidating Trust .........30

(b) By Non-Debtors .....................................................................................................30

8.7 Unclaimed or Undeliverable Distributions ..................................................................30

8.8 De Minimis Distributions ............................................................................................31

8.9 Manner of Payment Under this EPI Plan .....................................................................31

8.10 Final Distribution Report .............................................................................................31

8.11 Post-Final Distribution Report Assets .........................................................................31

8.12 Exemption from Securities Law ..................................................................................31

ARTICLE IX. SETTLEMENT, RELEASE, INJUNCTION AND RELATED PROVISIONS ...............................................................................................................................31

9.1 Release of Liens ...........................................................................................................31

9.2 Liabilities to, and Rights of, Governmental Units .......................................................32

9.3 Releases by the Debtor and Its Estate ..........................................................................32

9.4 Releases by Holders .....................................................................................................33

9.5 Exculpation ..................................................................................................................33

9.6 Injunction .....................................................................................................................34

9.7 Term of Injunctions or Stays........................................................................................35

9.8 No Liability for Solicitation or Participation ...............................................................35

9.9 Compromises and Settlements .....................................................................................35

9.10 Objections to Claims and Interests ..............................................................................35


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ARTICLE X. CONDITIONS PRECEDENT ............................................................................35

10.1 Conditions to Confirmation .........................................................................................35

10.2 Conditions to EPI Effective Date .................................................................................36

10.3 Waiver of Conditions to Confirmation and EPI Effective Date ..................................36

ARTICLE XI. RETENTION OF JURISDICTION .................................................................36

ARTICLE XII. MISCELLANEOUS PROVISIONS ...............................................................38

12.1 Binding Effect ..............................................................................................................38

12.2 Modification and Amendments....................................................................................38

12.3 Withholding and Reporting Requirements ..................................................................38

12.4 Third-Party Claims/Causes of Action ..........................................................................39

12.5 Revocation, Withdrawal or Non-Consummation Right to Revoke or Withdraw ........39

12.6 Severability of EPI Plan Provisions .............................................................................39

12.7 Trustee’s Fees ..............................................................................................................39

12.8 Notices .........................................................................................................................39

12.9 Governing Law ............................................................................................................39

12.10 Waiver and Estoppel ....................................................................................................40

12.11 BSP Representative Party ............................................................................................40

12.12 EPI Preferred Interest Holder Representative Party ....................................................40


INTRODUCTION

Elk Petroleum, Inc. (the “Debtor” or “EPI”), as debtor and debtor in possession in the above captioned case, hereby proposes the following plan of liquidation pursuant to the provisions of chapter 11 of the Bankruptcy Code.

For a discussion of the Debtor’s history, businesses, properties, key contracts, and a summary and analysis of the EPI Plan, stakeholders of the Debtor should review the EPI Disclosure Statement filed with the Bankruptcy Court to which the EPI Plan is attached. ALL HOLDERS OF CLAIMS AND EPI PREFERRED INTERESTS ENTITLED TO VOTE ARE ENCOURAGED TO READ THE EPI PLAN AND THE EPI DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE EPI PLAN.

The EPI Plan provides for the liquidation and conversion of all of the Debtor’s remaining assets (other than the EPA Warrants) to Cash and the distribution of the net proceeds realized therefrom and all remaining Cash on hand to the holders of Allowed Claims and Allowed EPI Preferred Interests as of the Record Date in accordance with the relative priorities established in the Bankruptcy Code as set forth in the EPI Plan and in accordance with the Global Settlement Agreement, as approved by the Global Settlement Order. The EPA Warrants shall be distributed on the EPI Effective Date to creditors holding Allowed General Unsecured Claims, as more fully set forth in this EPI Plan, the Global Settlement, and the Global Settlement Order. The EPI Plan does not provide for a distribution to EPI’s Sole Shareholder, EPL, and its vote to accept or reject the EPI Plan, therefore, is not being solicited. The EPI Plan contemplates the creation of the EPI Liquidating Trust to, among other things, resolve Disputed Claims, if any, and Disputed EPI Preferred Interests, if any, pursue unreleased Causes of Action, implement the terms of the EPI Plan, and make Distributions to the holders of Allowed Claims and Allowed EPI Preferred Interests.

Under section 1125(b) of the Bankruptcy Code, a vote to accept or reject the EPI Plan cannot be solicited from a Holder of a Claim or EPI Preferred Interest until such time as the EPI Disclosure Statement has been approved by the Bankruptcy Court and distributed to Holders of Claims and EPI Preferred Interests.

The Debtor expressly reserves its right to alter, amend, or modify the EPI Plan, one or more times, before its substantial consummation, subject to the restrictions on modification set forth in section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019 and otherwise set forth in this EPI Plan.

NO SOLICITATION MATERIALS, OTHER THAN THE EPI DISCLOSURE STATEMENT AND RELATED MATERIALS TRANSMITTED THEREWITH AND APPROVED BY THE BANKRUPTCY COURT, HAVE BEEN AUTHORIZED BY THE BANKRUPTCY COURT FOR USE IN SOLICITING ACCEPTANCE OR REJECTION OF THE EPI PLAN.


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ARTICLE I

A. SCOPE OF DEFINITIONS

All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in Article I of the EPI Plan. Any term used in the EPI Plan that is not defined herein, but is defined in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning ascribed to that term in the Bankruptcy Code or the Bankruptcy Rules.

B. DEFINITIONS

1.1 “503(b)(9) Claims” means a claim for payment of an administrative expense of a kind specified in section 503(b)(9) of the Bankruptcy Code.

1.2 “AB” means AB Elk Holdings, LLC.

1.3 “AB Co-Invest” means AB Co-Invest Elk Holdings, LLC.

1.4 “AB Parties” means AB and AB Co-Invest, collectively.

1.5 “ACR” means ACR Alpine Capital Research, LLC, as advisor to the ACR MultiStrategy Quality Return Fund, a Series of Investment Management Series Trust II, a Delaware statutory trust, and the Holder of an Allowed EPI Preferred Interest.

1.6 “Administrative Claim” means a claim for payment of an administrative expense of a kind specified in sections 327, 328, 330, 331, 363, 365, 503(b), 507, or 1114 of the Bankruptcy Code, for the period from the Petition Date through and including the EPI Effective Date, including, but not limited to, (a) the actual, necessary costs and expenses, incurred from and after the Petition Date through the EPI Effective Date, of preserving EPI’s Estate and operating the business of the Debtor, including wages, salaries, or commissions for services rendered after the commencement of the Chapter 11 Case, (b) Other Professional Claims, and (c) all fees and charges assessed against the Debtors’ Estate under chapter 123 of title 28 of the United States Code, and all Allowed Claims that are entitled to be treated as Administrative Claims pursuant to a Final Order of the Bankruptcy Court.

1.7 “Administrative Tax Claim” means a claim for any tax of a kind specified in section 503(b)(1)(B) and (C) of the Bankruptcy Code and entitled to priority pursuant to section 507(a)(1) of the Bankruptcy Code.

1.8 “Affiliated Cases” means, collectively, the cases filed by each of Elk Petroleum Aneth, LLC (Case No. 19-11158), Resolute Aneth, LLC (Case No. 19-11159), and Elk Operating Services, LLC (Case No. 19-11160).

1.9 “Affiliated Debtors” means EPA, Resolute, and EOS, collectively.

1.10 “Allowed” means with respect to any Claim or EPI Preferred Interest or any portion thereof (a) that has been allowed by a Final Order, or (b) as to which, on or by the EPI Effective Date, (i) no proof of claim or interest has been timely filed with the Bankruptcy Court and (ii) the


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liquidated and noncontingent amount of which is Scheduled, other than a Claim or Interest that is Scheduled in an unknown amount or as disputed, and not otherwise paid pursuant to a separate order of the Bankruptcy Court, or (c) for which a proof of claim in a liquidated amount has been timely filed with the Bankruptcy Court pursuant to the Bankruptcy Code, any Final Order of the Bankruptcy Court or other applicable bankruptcy law, and as to which either (i) no objection to its allowance has been filed within the periods of limitation fixed by the EPI Plan, the EPI Confirmation Order, the Bankruptcy Code or by any order of the Bankruptcy Court or (ii) any objection to its allowance has been settled or withdrawn, or has been denied by a Final Order, or (d) that is expressly allowed in a liquidated amount in the EPI Plan. The amount of an Allowed Claim or Allowed EPI Preferred Interest shall be the lesser of the amount stated in a proof of claim or interest filed for such Claim or EPI Preferred Interest (if less than the amount Scheduled for such Claim or Interest), the amount agreed to in a written settlement, or the amount allowed by a Final Order. All distributions on account of an Allowed Claim or Allowed EPI Preferred Interest will be made to the Holders of Allowed Claims or Allowed EPI Preferred Interests of record on the Record Date.

1.11 “Allowed EPI Preferred Interests” means those EPI Preferred Interests set forth on Exhibit 1 hereto, which EPI Preferred Interests shall be deemed Allowed as of the EPI Effective Date without further order of the Bankruptcy Court.

1.12 “Assets” means all of the right, title and interest of the Debtor in and to property of whatever type or nature (including, without limitation, real, personal, mixed, tangible or intangible), including property of the Debtor’s Estate, including, but not limited to, EPI’s Interests in its non-Debtor subsidiaries, Madden and the Grieve Entities.

1.13 “Avoidance Actions” means, unless otherwise released under a prior Order of the Bankruptcy Court or under the EPI Plan, Causes of Action against Persons arising under sections 502, 510, 541, 542, 544, 545, 547, 548, 549, 550, 551, and 553 of the Bankruptcy Code, or under applicable state or federal statutes and common law, including fraudulent transfer laws, whether or not litigation is commenced to prosecute such Avoidance Actions.

1.14 “Ballot” means each of the ballot forms that are distributed with the EPI Disclosure Statement to Holders of Claims and EPI Preferred Interests in Classes that are impaired under the EPI Plan and entitled to vote under Article IV hereof in connection with the solicitation of acceptances of the EPI Plan.

1.15 “Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended and codified in title 11 of the United States Code, 11 U.S.C. §§ 101, et seq.

1.16 “Bankruptcy Court” means the United States Bankruptcy Court for the District of Delaware or such other court as may have jurisdiction over the Chapter 11 Case.

1.17 “Bankruptcy Rules” means (a) the Federal Rules of Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, (b) the Federal Rules of Civil Procedure, as amended, as applicable to the Chapter 11 Case or proceedings therein, and (c) the local rules of the Bankruptcy Court, as applicable to the Chapter 11 Case or proceedings therein, as the case may be.


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1.18 “Bar Date” means the date or dates established by the Bankruptcy Court pursuant to the Order Granting Motion of the Debtors for Entry of an Order (I) Establishing Bar Dates for Filing Claims and (II) Approving Notice Procedures Related Thereto (Docket No. 285) by which Proofs of Claim must be filed.

1.19 “Beneficiaries” means the beneficiaries of the EPI Liquidating Trust.

1.20 “Board” means the Board of EPI as of the EPA Confirmation Date.

1.21 “BSP” means BSP Agency, LLC, or its successors and assigns, in its capacity as administrative agent for the lenders party to the Guaranty Agreement.

1.22 “Business Day” means any day, excluding Saturdays, Sundays and legal holidays, on which commercial banks are open for business in Wilmington, Delaware.

1.23 “Cash” means currency, a certified check, cashier’s check or wire transfer of good funds from any source.

1.24 “Causes of Action” means, unless otherwise released under a prior Order of the Bankruptcy Court or under the EPI Plan, any and all actions, causes of action, suits, accounts, controversies, agreements, promises, rights to legal remedies, rights to equitable remedies, rights to payment and claims, whether known, unknown, reduced to judgment, not reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured and whether asserted or assertable directly or derivatively, in law, equity or otherwise, including, without limitation, the Avoidance Actions and those Causes of Action transferred to EPI prior to the EPI Effective Date, including through the EOS Sale Order.

1.25 “Chapter 11 Case” means the Debtor’s bankruptcy case pending in the Bankruptcy Court and being administered under case number 19-11157 (LSS).

1.26 “Chapter 11 Professional Fee Claims” means those fees and expenses incurred in the Chapter 11 Case or the Affiliated Cases, in either instance incurred through October 24, 2019, which fees and expense shall have been approved by a Final Order.

1.27 “Claim” means a claim against the Debtor, whether or not asserted, as defined in section 101(5) of the Bankruptcy Code.

1.28 “Claims Agent” means Bankruptcy Management Solutions d/b/a Stretto, the claims and noticing agent of the Debtor.

1.29 “Claims Objection Deadline” means the date by which objections to Claims shall be filed, which date shall be the date that is one hundred and twenty (120) days after the EPI Effective Date, as such date may be extended on motion of the EPI Liquidating Trust, as ordered by the Bankruptcy Court.

1.30 “Class” means a category of Claims or Interests described in Article III of this EPI Plan.


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1.31 “Class 3 Distribution” means the distribution to be made to Holders of Allowed General Unsecured Claims in Class 3, including but not limited to the EPA Warrants, GUC Liquidation Trust Units, and the Cash or other assets available to Holders of Allowed General Unsecured Claims from the liquidation of the EPI Liquidating Trust Assets, including through the pursuit of Causes of Action, in accordance with and subject to the terms of the Global Settlement Agreement and the Global Settlement Order.

1.32 “Class 4 Distribution” means the distribution to be made to Holders of Allowed EPI Preferred Interests in Class 4 of EPI Preferred Interests Liquidation Trust Units and the Cash or other assets available to Holders of Allowed EPI Preferred Interests from the liquidation of the EPI Liquidating Trust Assets, including through the pursuit of Causes of Action, in accordance with and subject to the terms of the Global Settlement Agreement and the Global Settlement Order.

1.33 “Conflicts Committee” means the Conflicts Committee of the Board, consisting of Patrick Bartels, Matthew Doheny, and Charles Reardon.

1.34 “COP” means ConocoPhillips Company.

1.35 “Debtor” means Elk Petroleum, Inc.

1.36 “Deficiency Claim” means, as to a Secured Creditor, that portion of such Secured Creditor's Allowed Secured Claim not paid or satisfied from the proceeds of any sale or other disposition of the Debtor’s Assets or return of such Secured Creditor's collateral; and, as to any other creditor asserting a claim that is subject to a lien or security interest in property of the Debtor’s Estate, such Claim to the extent it is (a) rendered an unsecured claim by virtue of section 506(a) of the Bankruptcy Code and (b) otherwise determined to be an Allowed Claim.

1.37 “Disallowed Claim” means a Claim, or any portion thereof, that (a) has been disallowed by a Final Order or (b) is Scheduled at zero or as contingent, disputed or unliquidated and as to which a proof of claim bar date has been established, but no proof of claim has been filed or deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or otherwise deemed timely filed under applicable law.

1.38 “Disallowed EPI Preferred Interests” shall mean all EPI Preferred Interests that are not Allowed EPI Preferred Interests.

1.39 “Disputed Claim” means a Claim, or any portion thereof, that is neither an Allowed Claim nor a Disallowed Claim, and includes, without limitation, a Claim that (a) has not been Scheduled or is Scheduled by the Debtor as unknown or as contingent, unliquidated, or disputed for which a proof of claim has been filed or (b) is the subject of an objection filed with the Bankruptcy Court and which objection has not been withdrawn or overruled by a Final Order of the Bankruptcy Court.

1.40 “Distribution” means a distribution of Cash or other Property pursuant to this EPI Plan or the EPI Liquidating Trust.

1.41 “Distribution Dates” means collectively, the First Distribution Date, any Subsequent Distribution Date, and the Final Distribution Date.


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1.42 “Distribution Reserve” means Cash reserved from the EPI Liquidating Trust in an amount equal to the distribution or distributions on account of Disputed Claims or Disputed Interests when Allowed, which Cash will be held by the EPI Liquidating Trust pending allowance of such Disputed Claims or Disputed Interests, and then distributed on account of Allowed Claims or Allowed Interests in accordance with Section 7.4 of this EPI Plan. The Distribution Reserve for any Disputed Class 3 General Unsecured Claims or Disputed Class 4 EPI Preferred Interests shall be funded solely from the EPI Liquidating Trust Assets or the proceeds thereof.

1.43 “EOS” means Elk Operating Services, LLC.

1.44 “EOS Sale Order” means the Revised Order (I) Approving the Sale of the Membership Interests in Elk Operating Services, LLC Free and Clear of All Claims and Encumbrances, (II) Authorizing and Approving the Assumption and Assignment of Certain Unexpired Leases and Executory Contracts, and (III) Granting Related Relief (Docket No. 644).

1.45 “EPA” means Elk Petroleum Aneth, LLC.

1.46 “EPA Confirmation Date” means the date of entry of the EPA Confirmation Order.

1.47 “EPA Confirmation Order” means the order entered by the Bankruptcy Court on October 8, 2019 (Docket No. 619) confirming in all respects all of the provisions, terms, and conditions of the EPA Plan.

1.48 “EPA Liquidating Trust” means the liquidating trust established pursuant to the EPA Plan and the EPA Liquidating Trust Agreement.

1.49 “EPA Liquidating Trust Agreement” means the agreement, established as of the effective date of the EPA Plan (the “EPA Effective Date”), setting forth the terms and conditions applicable to the EPA Liquidating Trust.

1.50 “EPA Liquidating Trust Assets” means any and all assets of EPA transferred to the EPA Liquidating Trust pursuant to the terms and conditions of the EPA Plan and EPA Confirmation Order.

1.51 “EPA Plan” means the Third Amended Joint Plan of Reorganization of EPA and Resolute Aneth (Docket No. 594), as confirmed by the Bankruptcy Court.

1.52 “EPA Warrants” means those certain cashless exercise warrants for the purchase of 10% of the new equity in reorganized EPA at a strike or exercise price fixed upon a total enterprise value of reorganized EPA of $175 million, with an expiration date on the fourth anniversary of the issuance of the warrants, all as set forth in the Global Settlement Agreement approved by the Global Settlement Order. A copy of the Warrant Agreement between EPA and the warrant agent will be included in the EPI Plan Supplement.

1.53 “EPI” means Elk Petroleum, Inc.

1.54 “EPI Confirmation Date” means the date of entry of the EPI Confirmation Order.


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1.55 “EPI Confirmation Hearing” means the hearing before the Bankruptcy Court on confirmation of the EPI Plan and related matters under section 1128 of the Bankruptcy Code.

1.56 “EPI Confirmation Order” means the order entered by the Bankruptcy Court confirming in all respects all of the provisions, terms and conditions of this EPI Plan.

1.57 “EPI Disclosure Statement” means the written disclosure statement that relates to the EPI Plan, as approved by the EPI Disclosure Statement Approval Order pursuant to section 1125 of the Bankruptcy Code and Bankruptcy Rule 3017, as such disclosure statement may be amended, modified or supplemented from time to time.

1.58 “EPI Disclosure Statement Approval Order” means the Final Order approving, among other things, the EPI Disclosure Statement, entered by the Bankruptcy Court on May __, 2020 (Docket No. __).

1.59 “EPI Effective Date” means the first Business Day on which the conditions precedent set forth in Article 10.2 of the EPI Plan have been satisfied or waived as provided in Section 10.3 hereof.

1.60 “EPI Interest” means the rights of any current or former holder or owner of any shares of common stock of the Debtor authorized and issued prior to the Confirmation Date or other instruments evidencing an ownership interest in the Debtor, whether or not certificated, transferable, voting or denominated “common stock” or a similar security, and any Claim or Cause of Action related to or arising from the foregoing, or any option, warrant or right, contractual or otherwise, to acquire any such interest, exclusive of any such interests held in treasury by the Debtor ,excluding, for the avoidance of doubt, any EPI Preferred Interest.

1.61 “EPI Liquidating Trust” means the liquidating grantor trust established pursuant to this EPI Plan and the EPI Liquidating Trust Agreement.

1.62 “EPI Liquidating Trust Agreement” means the agreement, established as of the EPI Effective Date, setting forth the terms and conditions applicable to the EPI Liquidating Trust, the final form of which shall be filed with the EPI Plan Supplement.

1.63 “EPI Liquidating Trust Assets” means any and all remaining Assets of the Debtor, including Cash, Causes of Action, Claims of EPI, and any additional assets that may subsequently be transferred to the EPI Liquidating Trust.

1.64 “EPI Liquidating Trustees” means the Persons designated in the EPI Liquidating Trust Agreement to serve as trustees of the EPI Liquidating Trust from time to time. The initial EPI Liquidating Trustees shall be set forth in the EPI Plan Supplement, and the terms relating to any compensation to be paid to the EPI Liquidating Trustees shall be set forth in the EPI Liquidating Trust Agreement.

1.65 “EPI Liquidating Trust Operating Expenses” means the fees and expenses incurred by the EPI Liquidating Trust or the EPI Liquidating Trustees, including but not limited to the fees and expenses of professionals employed by the EPI Liquidating Trust.


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1.66 “EPI Plan” means this Plan of Liquidation of Elk Petroleum, Inc., Pursuant to Chapter 11 of the Bankruptcy Code, as amended and confirmed by the Bankruptcy Court, pursuant to the EPI Confirmation Order.

1.67 “EPI Plan Confirmation Hearing” means the hearing to be held by the Bankruptcy Court, on a date and at a time to be determined, with respect to confirmation of the EPI Plan.

1.68 “EPI Plan Supplement” means the compilation of documents and forms of documents, schedules and Exhibits to the EPI Plan, all of which shall be in form and substance reasonably acceptable to BSP, to be filed no later than seven (7) days before the earlier of the voting deadline for the EPI Plan or the objection deadline with respect to confirmation of the EPI Plan, on notice to parties in interest, and additional documents filed before the EPI Effective Date as supplements or amendments to the EPI Plan Supplement. The Debtor shall have the right to amend the documents contained in, and Exhibits to, the EPI Plan Supplement through the EPI Effective Date, subject to the consent of BSP and, subject to consulting with the Preferred Interest Representative if documents in the Plan Supplement would adversely affect any of the EPI Preferred Interest Holders.

1.69 “EPI Preferred Interest” means any preferred equity security of EPI authorized and issued prior to the EPA Confirmation Date, including any option, warrant, or other right, contractual or otherwise, to acquire any preferred equity security in EPI, or any right to payment or compensation based upon any such interest, whether or not such interest is owned by the Holder of such right to payment or compensation, whether or not transferable and whether fully vested or vesting in the future.

1.70 “EPI Preferred Interests Liquidation Trust Units” means the Liquidation Trust Units issued to the holders of Allowed EPI Preferred Interests in Class 4 in accordance with the terms of the Global Settlement Agreement and the Global Settlement Order.

1.71 “EPI Subordinated Claim” means any Claim that is subject to (a) subordination under section 510 of the Bankruptcy Code or any other statute, (b) contractual subordination, or (c) equitable subordination as determined by the Bankruptcy Court in a Final Order, including, without limitation, any Claim (i) for or arising from the rescission of a purchase, sale, issuance, or offer of a Security of the Debtor; (ii) for damages arising from the purchase or sale of such a Security; or (iii) for reimbursement, indemnification, or contribution allowed under section 502 of the Bankruptcy Code on account of such Claim.

1.72 “EPL” means Elk Petroleum, Ltd.

1.73 “Equity Committee” means the Official Committee of Preferred Equity Security Holders of EPI.

1.74 “Equity Committee Members” means the members of the Equity Committee in the capacity as members of such committee.

1.75 “Estate” means the bankruptcy estate of the Debtor arising pursuant to section 541 of the Bankruptcy Code.


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1.76 “Exculpated Parties” means, collectively, and in each case in their capacities as such solely during the Chapter 11 Case: (a) EPI; (b) the Board and its members; (c) the Conflicts Committee and its members; (d) the Equity Committee and the Equity Committee Members (but solely in their capacity as members of the Equity Committee); (e) BSP; (f) with respect to EPI, all of its current officers and directors, employees, agents, advisory board members, financial advisors, attorneys, investment bankers, consultants, representatives, and all Professional Persons; and (g) with respect to (b), (c), and (d), all of their respective current officers and directors, principals, shareholders, members, partners, managers, employees, agents, advisory board members, financial advisors, attorneys, investment bankers, consultants, representatives, and all Professional Persons.

1.77 “Exhibit” means an exhibit annexed to the EPI Plan.

1.78 “Face Amount” means (a) when used in reference to a Disputed or Disallowed Claim or Disputed or Disallowed Interest, the full stated amount claimed by the Holder of such Claim or Interest in any proof of claim or proof of interest timely filed with the Bankruptcy Court or otherwise deemed timely filed by any Final Order of the Bankruptcy Court or other applicable bankruptcy law, and (b) when used in reference to an Allowed Claim or Allowed Interest, the allowed amount of such Claim or Interest.

1.79 “Final Distribution Date” means the date(s) on which a final Distribution of EPI Liquidating Trust is made to (i) Holders of Allowed Claims and (ii) Holders of Allowed EPI Preferred Interests, entitled to Distributions therefrom. The Final Distribution Date(s) shall be one or more dates, as determined by the EPI Liquidating Trustees, which is after the liquidation into Cash of all EPI Liquidating Trust Assets (other than those assets abandoned by the Debtor or the EPI Liquidating Trust, as applicable) and the collection of other sums due or otherwise remitted or returned to the Estate.

1.80 “Final Distribution Report” shall have the meaning set forth in Section 8.10 of the EPI Plan.

1.81 “Final Order” means an order or judgment, the operation or effect of which has not been stayed, reversed or amended and as to which order or judgment (or any revision, modification or amendment thereof) the time to appeal or seek review or rehearing has expired and as to which no appeal or petition for review or rehearing was filed or, if filed, remains pending.

1.82 “First Distribution Date” means, except as set forth in this EPI Plan, the first Business Day [___] days after the EPI Effective Date, or such other time as may be reasonably determined by the EPI Liquidating Trustees, to make initial Distributions under this EPI Plan

1.83 “Fulcrum” means Fulcrum Energy Capital Fund II, LLC, and the Holder of an Allowed EPI Preferred Interest.

1.84 “General Unsecured Claim” means a Claim that is not an Administrative Claim, Priority Non-Tax Claim, Priority Tax Claim, Secured Claim, Miscellaneous Secured Claim, Intercompany Claim, Professional Claim, or any Statutory Fees, and specifically includes, without limitation, and any unsecured Deficiency Claim of any holder of a Miscellaneous Secured Claim.


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1.85 “Global Settlement Agreement” means the Stipulation Authorizing Global Settlement Pursuant to Federal Rule of Bankruptcy Procedure 9019 approved by the Global Settlement Order (Docket No. 620).

1.86 “Global Settlement Order” means the order (Docket No. 620), entered by the Bankruptcy Court approving the Global Settlement Agreement.

1.87 “Grieve CO2” means Elk Grieve Project, LLC, a non-Debtor Affiliate of EPI.

1.88 “Grieve Entities” means, collectively, Grieve CO2 and Grieve Pipeline.

1.89 “Grieve Pipeline” means Grieve Pipeline, LLC, a non-debtor Affiliate of EPI.

1.90 “Guaranty Agreement” means that certain Guaranty Agreement, dated as of August 5, 2016, among EPL, EPI, Grieve CO2 and each other Restricted Subsidiary (as defined therein) of EPI, each lender from time to time party thereto and BSP Agency, LLC.

1.91 “GUC Liquidation Trust Distribution” means the Liquidation Trust Units issued to holders of Allowed General Unsecured Claims in Class 3 in accordance with the Global Settlement Agreement and the Global Settlement Order.

1.92 “Holder” means a Person holding a Claim or Interest as of the applicable date of determination. For the avoidance of doubt, each lender (and each of their respective successors and assigns) under the Guaranty Agreement is a Holder of an Allowed Class 3 Claim, as such claim is Allowed pursuant to the Global Settlement Agreement and the Global Settlement Order, and entitled to receive a Distribution under the EPI Plan on account of its respective Pro Rata Share of such Allowed Claim.

1.93 “Impaired” refers to any Claim, EPI Interest, and EPI Preferred Interest that is impaired within the meaning of section 1124 of the Bankruptcy Code.

1.94 “Insurance Policies” means all insurance policies that have been issued at any time or provide coverage, benefits or proceeds to the Debtor (or its predecessors) and all agreements, documents, or instruments relating thereto.

1.95 “Insurer” means any company or other entity that issued an Insurance Policy, any third-party administrator of or for any Insurance Policy, and any respective predecessors, successors, and affiliates of any of the foregoing.

1.96 “Intercompany Claims” means (i) any account reflecting intercompany book entries by the Debtor with respect to an Affiliate of the Debtor or (ii) any Claim, Cause of Action, or remedy held or asserted by or against the Debtor by or against an Affiliate of the Debtor, in each case accruing before or after the Petition Date through the EPI Effective Date, including, but not limited to, any Claim for reimbursement, payment as guarantor or surety, or any Claim for contribution or expenses that was allocable between the Debtor and its Affiliates, including those Claims reflected by a proof of claim.

1.97 “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.


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1.98 “Liens” means any mortgage, pledge, deed of trust, assessment, security interest, lease, lien, adverse claim, levy, charge, right of first refusal or surrender right, or other encumbrance of any kind, including any “lien” as defined in Section 101(37) of the Bankruptcy Code.

1.99 “LIM” means LIM Asia Special Situations Master Fund Limited, and the Holder of an Allowed EPI Preferred Interest.

1.100 “Liquidation Trust Units” means the units in the EPI Liquidation Trust to be deemed distributed to the EPI Litigation Trust Beneficiaries and the right to receive distributions on account of such beneficial interests.

1.101 “Madden” means Elk Petroleum Madden Gas & CO2, LLC, a wholly-owned, non-debtor affiliate of EPI.

1.102 “Madden Insurance Proceeds” means any proceeds from any Insurance Policies (including any insurance policies pertaining to Madden, owned by Madden, or in which Madden is a loss payee) that provide or may provide insurance coverage regarding or relating to the fire and damages relating thereto in December 2018 at the so-called Lost Cabin Gas Plant in the state of Wyoming and any “lost revenue” or similar types of insurance coverage and proceeds relating thereto regarding or relating to the fire in December 2018, as assigned to COP as part of the Madden Liquidation.

1.103 “Madden Liquidation” means that certain sale of certain of Madden’s assets to COP, which closed on or about May 14, 2020.

1.104 “Miscellaneous Secured Claim” means any Secured Claim, whether by operation of law, contract or otherwise, but solely to the extent of the value, as of the EPI Effective Date, or such other date as is established by the Bankruptcy Court, of such security interest or lien after giving effect to all security interests or liens senior in priority.

1.105 “Net Recoveries” shall mean the net proceeds of the liquidation of the Assets of the Debtor and the EPI Liquidating Trust after payment of all necessary and actual fees and expenses associated with the liquidation of such Assets.

1.106 “Other Professional Claim” means a Claim of a Professional Person, for compensation or reimbursement of costs and expenses relating to services rendered after the Petition Date and prior to and including the EPI Effective Date that is not an Unpaid Chapter 11 Professional Fee Claim.

1.107 “Person” means an individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, limited liability partnership, trust, estate, unincorporated organization or other entity.

1.108 “Petition Date” means May 22, 2019, which is the date on which the Debtor filed its petition commencing the Chapter 11 Case.


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1.109 “Post-EPI Effective Date Claims” means all Claims against and obligations incurred by the EPI Liquidating Trust on and after the EPI Effective Date (specifically excluding Administrative Claims and all other Allowed Claims and Interests treated in Classes 1 through 7 of the EPI Plan).

1.110 “Post-EPI Effective Date Debtor” means the Debtor on and after the EPI Effective Date.

1.111 “Preferred Interest Liquidation Trust Distribution” means the Liquidation Trust Units issued to holders of Allowed EPI Preferred Interests in accordance with the Global Settlement Agreement and the Global Settlement Order.

1.112 “Preferred Interest Representative” has the meaning set forth in section 13.2 of this EPI Plan.

1.113 “Priority Non-Tax Claim” means any Claim of a kind specified in section 507(a)(3), (4), (5), (6), or (7) of the Bankruptcy Code other than an Administrative Claim.

1.114 “Priority Tax Claim” means any Claim of a governmental unit (as defined in section 101(27) of the Bankruptcy Code) of the kind specified in sections 502(i) or 507(a)(8) of the Bankruptcy Code.

1.115 “Pro Rata” means, at any time, the proportion that the Face Amount of a Claim in a particular Class bears to the aggregate Face Amount of all Claims (including Disputed Claims, but excluding Disallowed Claims) in such Class, unless this EPI Plan provides otherwise.

1.116 “Professional Claim Bar Date” shall have the meaning set forth in Section 2.2(a) of the EPI Plan.

1.117 “Professional Fee Order” means the order establishing procedures for the interim compensation for Professionals that has been entered by the Bankruptcy Court.

1.118 “Professional Person” means a professional retained in the Chapter 11 Case pursuant to sections 327, 328, and 1103 of the Bankruptcy Code, or otherwise.

1.119 “Record Date” or “Distribution Record Date” means the date that is two (2) Business Days after the entry of an order by the Bankruptcy Court approving the EPI Disclosure Statement.

1.120 “Related Parties” means, with respect to a Person that is a Released Party, collectively, its predecessors, successors, assigns, subsidiaries, direct and indirect Affiliates, managed accounts and funds, current officers and directors, principals, shareholders, members, partners, managers, employees, subcontractors, agents, advisory board members, advisors, financial advisors, attorneys, accountants, investment bankers, consultants, agents, representatives, management companies, fund advisors, and other professionals, and such Person’s respective heirs, executors, estates, servants, and nominees, in each case in their capacity as such.


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1.121 “Released Parties” means each of: (a) the Debtor; (b) the Board; (c) the Conflicts Committee; (d) the Equity Committee; (e) the members of the Equity Committee in their respective capacity as members of such Equity Committee and in their individual capacities; (f) BSP; (g) the AB Parties; (h) and with respect to clauses (b) through (g) such entities’ successors and assigns, subsidiaries, affiliates, beneficial owners, managed accounts or funds, current officers, directors, principals, shareholders, direct and indirect equity holders, members, partners (general and limited), employees, agents, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, management companies, fund advisors and other Professionals; provided that no Person shall be a Released Party if it objects to the releases provided for in Article IX of this EPI Plan. Except as set forth in this EPI Plan, no current or former officers or directors of EPI shall constitute Released Parties or shall be released by any of this EPI Plan, the EPI Plan Supplement, or the EPI Confirmation Order; provided, further, that, for the avoidance of doubt, notwithstanding the foregoing or anything else contained in this EPI Plan, as it pertains to BSP and the BSP Parties, Released Parties does not include any of the Debtor’s subsidiaries or affiliates. Notwithstanding the foregoing or anything else contained in this EPI Plan to the contrary, Released Parties do not include (w) all Affiliates of the Debtor and any of their respective Related Parties other than the Debtor and those Persons expressly identified in the foregoing (b) through (h); (x) EPL, Brad Lingo, James Piccone, V. Brian Dolan, Neale Taylor, Russell Krause, Timothy Hargreaves, Alexander Hunter; (y) KPMG LLP and any affiliates thereof; and (z) Resolute Energy Corporation, Hicks Acquisition Company I, Inc., Resolute Natural Resources Company, LLC, Cimarex Energy Co., CR Sub 1 Inc., CR Sub 2 LLC, and any affiliates of or successors to the foregoing entities.

1.122 “Resolute Aneth” means Resolute Aneth, LLC.

1.123 “Scheduled” means, with respect to any Claim, EPI Preferred Interest, or EPI Interest, the status and amount, if any, of such Claim, EPI Preferred Interest, or EPI Interest as set forth in the Schedules.

1.124 “Schedules” means the schedules of assets and liabilities filed in the Bankruptcy Court by the Debtor, as such schedules have been or may be amended or supplemented from time to time in accordance with Bankruptcy Rule 1009 or orders of the Bankruptcy Court.

1.125 “Section 503 Deadline” shall have the meaning ascribed thereto in Section 2.3 of the EPI Plan.

1.126 “Secured Claim” means a Claim secured by a properly perfected and unavoidable security interest in or Lien upon property of the Estate to the extent of the value of such security interest or Lien as determined by a Final Order of the Bankruptcy Court pursuant to section 506 of the Bankruptcy Code or as otherwise agreed upon in writing by the Debtor and the Claimholder (or as otherwise agreed upon in writing by the Debtor and the Claimholder upon reasonable advance notice to BSP and the Preferred Interest Representative).

1.127 “Secured Creditor” means any Creditor that holds a Secured Claim.

1.128 “Sole Shareholder” means EPL.


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1.129 “Statutory Fees” means the fees due and owing to the U.S. Trustee as of the EPI Confirmation Date pursuant to 28 U.S.C. § 1930(a)(6).

1.130 “Subsequent Distribution Date” means any date, other than the Final Distribution Date, after the First Distribution Date on which the Post-EPI Effective Date Debtor or the EPI Liquidating Trustees, as the case may be, determine that an interim distribution should be made to holders of Allowed Claims in light of, inter alia, resolutions of Disputed Claims and the administrative costs of such a Distribution.

1.131 “Substantial Contribution Claim” means a claim for payment of an administrative expense of a kind specified in sections 503(b)(3), (4), and (5) of the Bankruptcy Code.

1.132 “Tax Refunds” means the Claim of the Debtor for a refund of state or federal income taxes other than any refund of state income taxes received by a Debtor prior to the Petition Date.

1.133 “Third Party Claim” means a claim or other cause of action of the Debtor, or of EOS, assigned to the Debtor pursuant to the EOS Sale Order, as of the EPI Effective Date against any Person not otherwise released under a prior Order of the Bankruptcy Court or under the EPI Plan.

1.134 “Unimpaired” refers to any Claim or EPI Preferred Interest that is not Impaired under the EPI Plan.

1.135 “Unpaid Chapter 11 Professional Fee Claims” means the Professional Claims that are unpaid as of the date of this EPI Plan and for which the respective Professional Person holding such Unpaid Chapter 11 Professional Fee Claim agreed to defer payment under the terms of the Global Settlement Order and the Global Settlement Agreement.

C. RULES OF INTERPRETATION: APPLICATION OF DEFINITIONS, RULES OF CONSTRUCTION, AND COMPUTATION OF TIME

Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and neuter. For purposes of the EPI Plan: (a) any reference in the EPI Plan to a contract, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that the document shall be substantially in that form or substantially on those terms and conditions; (b) any reference in the EPI Plan to an existing document or exhibit filed or to be filed means the document or exhibit as it may have been or may be amended, modified, or supplemented; (c) unless otherwise specified, all references in the EPI Plan to Sections, Schedules, and Exhibits are references to sections, schedules, and exhibits of or to the EPI Plan. Unless otherwise specified, the words “herein,” “hereof,” “hereto,” “hereunder,” and other words of similar meaning refer to the EPI Plan as a whole and not to any particular section, subsection, or clause contained in the EPI Plan. The rules of construction contained in section 102 of the Bankruptcy Code shall apply to the construction of the EPI Plan. The headings in the EPI Plan are for convenience of reference only and shall not expand, limit, or otherwise affect the provisions of the EPI Plan. Unless


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otherwise indicated herein, all references to dollars are to United States dollars. Unless otherwise expressly provided herein, in computing any period of time prescribed or allowed by the EPI Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.

D. EXHIBITS

All Exhibits and the documents comprising the EPI Plan Supplement are incorporated into and are a part of the EPI Plan as if set forth in full herein and as may be filed with the EPI Plan Supplement.

ARTICLE II UNCLASSIFED CLAIMS

2.1 Unpaid Chapter 11 Professional Fee Claims. To the extent not earlier paid, any amounts due and owing for Unpaid Chapter 11 Professional Fee Claims shall be paid in accordance with the terms of the Global Settlement Agreement and the Global Settlement Order. See Exhibit 3 (the “Pro Forma Plan Distribution Schedule”) to the Disclosure Statement, to be filed as part of the EPI Plan Supplement.

2.2 Administrative Claims and Other Professional Claims.

(a) Final Fee Applications; Payment of Other Professional Claims. All final requests for payment of Other Professional Claims that have accrued from and after the EPA Effective Date must be filed no later than twenty (20) days after the EPI Effective Date (the “Professional Claim Bar Date”). After notice and a hearing in accordance with the procedures established by the Bankruptcy Code, the Bankruptcy Rules, and prior orders of the Bankruptcy Court, the allowed amounts of such Other Professional Claims shall be determined by the Bankruptcy Court, and the balance due thereon shall thereafter be immediately paid in full in Cash as such Cash becomes available for such payment. See Exhibit 3 (the “Pro Forma Plan Distribution Schedule”) to the Disclosure Statement, to be filed as part of the EPI Plan Supplement.

(b) Payment of Interim Amounts. The provisions of the Professional Fee Order shall remain in effect as to amounts owing to professionals prior to the EPI Effective Date.

(c) Payment of Professional Fee Claims. All Other Professional Claims shall be paid by the Debtor or the EPI Liquidating Trustees to the extent approved by order of the Bankruptcy Court within five (5) Business Days after entry of such order, or at such later date as may be agreed by the Holder of the Allowed Other Professional Claim.

(d) Post-EPI Effective Date Services. After the EPI Effective Date, any requirement that Professionals comply with the Professional Fee Order or sections 327 through 331 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate. The EPI Liquidating Trustees shall pay any professionals retained by the EPI Liquidating Trust for Post-EPI Effective Date services from the funds available to the EPI Liquidating Trust in accordance with the terms of this EPI Plan, the EPI Confirmation Order, and the EPI Liquidating Trust Agreement.


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2.3 Administrative Claims - Substantial Contribution Compensation and Expenses Bar Date. Any Person who requests compensation or expense reimbursement for making a Substantial Contribution Claim in the Chapter 11 Case pursuant to sections 503(b)(3), (4), or (5) of the Bankruptcy Code must file an application with the clerk of the Bankruptcy Court on or before a date that is thirty (30) days subsequent to the EPI Effective Date (the “Section 503 Deadline”) and serve such application on counsel for the EPI Liquidating Trust on or before the Section 503 Deadline, or be forever barred from seeking such compensation or expense reimbursement. All Allowed Substantial Contribution Claims shall be paid by the EPI Liquidating Trustees as soon as practicable after the EPI Effective Date.

2.4 Administrative Claims – Allowed 503(b)(9) Claims. Allowed 503(b)(9) Claims, unless previously paid by the Debtor, or otherwise, shall be paid by the EPI Liquidating Trustees as soon as practicable after the EPI Effective Date or as the Holder of such Allowed 503(b)(9) Claim and the EPI Liquidating Trust otherwise agree.

2.5 Administrative Claims – Allowed Administrative Tax Claims. Allowed Administrative Tax Claims under section 503(b)(1)(B) and (C) of the Bankruptcy Code, unless previously paid by or on behalf of the Debtor or otherwise paid, shall be paid by the EPI Liquidating Trustees as soon as practicable after the EPI Effective Date.

2.6 Administrative Claims - Ordinary Course Expenses. Allowed Administrative Claims with respect to liabilities incurred by the Debtor in the ordinary course of business during the Chapter 11 Case, unless previously paid by or on behalf of the Debtor (or otherwise paid), shall be paid by the EPI Liquidating Trustees as soon as practicable after the EPI Effective Date or as the EPI Liquidating Trust and the Holder of such Ordinary Course Expense otherwise agree.

2.7 Other Administrative Claims Bar Date. All requests for payment of an Administrative Claim other than Professional Claims and 503(b)(9) Claims, incurred on or after the Petition Date, must be filed with the Bankruptcy Court and served on counsel to the EPI Liquidating Trust no later than thirty (30) days after the EPI Effective Date. Unless the EPI Liquidating Trust objects to an Administrative Claim within ninety (90) days after the EPI Effective Date, or such later date as may be fixed by the Bankruptcy Court upon request of the EPI Liquidating Trust, such Administrative Claim shall be deemed allowed in the amount requested. In the event that the EPI Liquidating Trust objects to an Administrative Claim, the Bankruptcy Court shall determine the allowed amount of such Administrative Claim. All such Allowed Administrative Claims, unless previously paid by the Debtor, or otherwise, shall be paid by the EPI Liquidating Trustees within thirty (30) days of allowance by the Bankruptcy Court or as the EPI Liquidating Trust and the Holder of such Administrative Claim otherwise agree.

2.8 Priority Tax Claims. On the EPI Effective Date, or as soon as practicable after a Priority Tax Claim becomes an Allowed Claim if the date of allowance is later than the EPI Effective Date, each Holder of an Allowed Priority Tax Claim against the Debtor, unless previously paid by or on behalf of the Debtor or otherwise paid, shall be paid by the EPI Liquidating Trustees in full in Cash; provided, however, that the Debtor or the Liquidating Trust may elect to pay the Holder of an Allowed Priority Tax Claim under Bankruptcy Code section 507(a)(8) in accordance with Bankruptcy Code section 1129(a)(9)(C).


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2.9 Statutory Fees. Notwithstanding anything herein to the contrary, on the EPI Effective Date, the Debtor shall pay, in full, in Cash, any fees due and owing to the U.S. Trustee as of the EPI Confirmation Date pursuant to 28 U.S.C. § 1930(a)(6). On and after the EPI Effective Date, to the extent that the Chapter 11 Case remains open, and for so long as the Debtor or the EPI Liquidating Trust remains obligated to pay quarterly fees, the Debtor or the EPI Liquidating Trust shall file with the Bankruptcy Court quarterly reports in a form reasonably acceptable to the U.S. Trustee. The Debtor or the EPI Liquidating Trust, as applicable, shall remain obligated to pay quarterly fees to the U.S. Trustee until the earliest of the Chapter 11 Case being closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code.

ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS

3.1 Classification in General. Pursuant to section 1122 of the Bankruptcy Code, set forth below is a designation of classes of Claims against and Interests in the Debtor. A Claim or Interest is placed in a particular Class for the purposes of voting on the EPI Plan and receiving distributions pursuant to the EPI Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and such Claim or Interest has not been paid, released, or otherwise settled prior to the EPI Effective Date. In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax Claims have not been classified and their treatment is set forth in Article II above.

3.2 Summary of Classification of Claims and Interests. The following table designates the Classes of Claims against and Interests in the Debtor and specifies which Classes are: (a) Impaired and Unimpaired under this EPI Plan; (b) entitled to vote to accept or reject this EPI Plan in accordance with section 1126 of the Bankruptcy Code; and (c) deemed to accept or reject this EPI Plan:

CLASS DESCRIPTION IMPAIRED/UNIMPAIRED VOTING STATUS

1 Miscellaneous

Secured Claims Unimpaired

Holders of Class 1 Miscellaneous Secured Clams are Unimpaired, deemed to accept the EPI Plan, and not entitled to vote on the EPI Plan.

2 Priority Non-Tax

Claims Unimpaired

Holders of Class 2 Priority Non-Tax Claims are Unimpaired, deemed to accept the EPI Plan, and not entitled to vote on the EPI Plan.


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CLASS DESCRIPTION IMPAIRED/UNIMPAIRED VOTING STATUS

3 General Unsecured

Claims Impaired

Holders of Class 3 General Unsecured Claims are Impaired and are entitled to vote on the EPI Plan

4 EPI Preferred

Interests Impaired

Holders of Class 4 EPI Preferred Interests are Impaired and are entitled to vote on the EPI Plan

5 EPI Subordinated

Claims Impaired

Holders of Class 5 EPI Subordinated Claims are Impaired, shall receive no distributions, and are deemed to reject the EPI Plan

6 Intercompany

Claims Impaired

Holders of Class 6 Intercompany Claims are Impaired, shall receive no distributions, and are deemed to reject the EPI Plan

7 EPI Interests Impaired

Holders of Class 7 EPI Interests are Impaired, shall receive no distributions, and are deemed to reject the EPI Plan

3.3 Elimination of Vacant Classes. Any Class that, as of the commencement of the EPI Confirmation Hearing, does not have at least one Holder of a Claim or Interest that is Allowed in an amount greater than zero for voting purposes shall be considered vacant, deemed eliminated from this EPI Plan for purposes of voting to accept or reject this EPI Plan, and disregarded for purposes of determining whether this EPI Plan satisfies section 1129(a)(8) of the Bankruptcy Code with respect to such Class.

3.4 Voting; Presumptions; Solicitation.

(a) Acceptance by Certain Impaired Classes. Only Holders of Allowed Claims and EPI Preferred Interests in Classes 3 and 4 are entitled to vote to accept or reject this EPI Plan. The


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Impaired Class of Claims in Claim 3 shall have accepted this EPI Plan if the Holders of at least two-thirds (2/3) in amount and one-half (1/2) in number of the Allowed Claims actually voting in such Class have voted to accept this EPI Plan. The Impaired Class of EPI Preferred Interests in Class 4 shall have accepted this EPI Plan if the Holders of at least two-thirds (2/3) in amount of Allowed EPI Preferred Interests actually voting in such Class have voted to accept this EPI Plan. Holders of Claims and EPI Preferred Interests in Classes 3 and 4 will receive ballots containing detailed voting instructions for accepting or rejecting this EPI Plan.

(b) Deemed Acceptance by Unimpaired Classes. Holders of Claims in Classes 1 and 2 are Unimpaired and are conclusively deemed to have accepted this EPI Plan pursuant to section 1126(f) of the Bankruptcy Code. Accordingly, such Holders are not entitled to vote to accept or reject this EPI Plan.

(c) Deemed Rejection by Impaired Classes. Holders of EPI Subordinated Claims in Class 5, Intercompany Claims in Class 6, and EPI Interests in Class 7 shall neither receive any distribution pursuant to this EPI Plan nor retain any property on account of such Claims or EPI Interests. Holders of Claims in Class 5, Intercompany Claims in Class 6, and EPI Interests in Class 7 are, therefore, Impaired and are conclusively deemed to have rejected this EPI Plan pursuant to section 1126(g) of the Bankruptcy Code. Accordingly, such Holders are not entitled to vote to accept or reject this EPI Plan.

3.5 Cramdown. If any Class of Claims or Interests is deemed to reject this EPI Plan or is entitled to vote on this EPI Plan and does not vote to accept this EPI Plan, the Debtor may (a) seek confirmation of this EPI Plan under section 1129(b) of the Bankruptcy Code or (b) amend or modify this EPI Plan in accordance with the terms hereof and the Bankruptcy Code. If a controversy arises as to whether any Claims or Interests, or any class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the EPI Confirmation Date.

3.6 No Waiver. Subject to the terms of the Global Settlement Order and the Global Settlement Agreement, nothing contained in this EPI Plan shall be construed to waive the right of the Debtor or any other Person to object on any basis to any Claim or Interest.

ARTICLE IV PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS

4.1 Class 1 (Miscellaneous Secured Claims). Except to the extent that a Holder of an Allowed Class 1 Claim agrees to less favorable treatment, the Holder of each Allowed Class 1 Claim shall receive at the discretion of the EPI Liquidating Trustees from the EPI Liquidating Trust Assets: (i) Cash in an amount equal to the lesser of (a) the amount of such Allowed Miscellaneous Secured Claim and (b) the value of the Debtor’s property securing such Allowed Miscellaneous Secured Claim currently in the possession of the Debtor minus the amount of Claims secured by such property; (ii) delivery of the property securing such Allowed Miscellaneous Secured Claim; or (iii) other treatment such that the Allowed Miscellaneous Secured Claim shall be rendered Unimpaired. Any Allowed Deficiency Claim of a Holder of an Allowed Class 1 Claim shall be treated as a Class 3 General Unsecured Claim.


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4.2 Class 2 (Priority Non-Tax Claims). Except to the extent that a Holder of an Allowed Priority Non-Tax Claim agrees to a less favorable treatment, the Holder of each Allowed Priority Non-Tax Claim shall be paid in full in Cash on or as soon as practicable after the EPI Effective Date. To the extent any Disputed Non-Priority Tax Claims exist as of the EPI Effective Date and later become Allowed Priority Non-Tax Claims, such Allowed Priority Non-Tax Claims shall be paid as soon as reasonably practicable after the reconciliation of all Disputed Priority Non-Tax Claims.

4.3 Class 3 (General Unsecured Claims). Except to the extent that a Holder of an Allowed Class 3 General Unsecured Claim agrees to a less favorable treatment, on the EPI Effective Date (or as soon as reasonably practicable thereafter if a General Unsecured Claim is not Allowed on the EPI Effective Date) each Holder of an Allowed Class 3 General Unsecured Claim shall receive its Pro Rata share of (i) the EPA Warrants and (ii) the GUC Liquidation Trust Distribution, in accordance with the terms of the Global Settlement Agreement and Global Settlement Order. Thereafter, except to the extent that a Holder of an Allowed Class 3 General Unsecured Claim agrees to a less favorable treatment, each Holder of an Allowed Class 3 General Unsecured Claim shall receive its Pro Rata share of the Class 3 Distribution (taking into account prior Distributions made to such Holders, if any, in accordance with the terms of this EPI Plan).

4.4 Class 4 (EPI Preferred Interests). Except to the extent that a Holder of an Allowed Class 4 EPI Preferred Interest agrees to a less favorable treatment, in full and final satisfaction of any Claim or EPI Preferred Interest, the Holders of each Allowed Class 4 EPI Preferred Interest shall receive its Pro Rata share of the Class 4 Distribution in accordance with the terms of the Global Settlement Agreement and the Global Settlement Order. On the EPI Effective Date, or as soon as reasonably practicable thereafter if an EPI Preferred Interest has not been Allowed on the EPI Effective Date, each holder of an Allowed Class 4 EPI Preferred Interest shall receive its Pro Rata share of the Preferred Interest Liquidation Trust Distribution.

4.5 Class 5 (EPI Subordinated Claims). Holders of Allowed Class 5 EPI Subordinated Claims shall receive no distribution under the EPI Plan.

4.6 Class 6 (Intercompany Claims). Holders of Class 6 Intercompany Claims shall receive no distribution under the EPI Plan.

4.7 Class 7 (EPI Interests). The Holders of the Class 7 EPI Interests shall have their EPI Interests extinguished as of the EPI Effective Date and shall receive no distributions under this EPI Plan.

ARTICLE V ACCEPTANCE OR REJECTION OF THE EPI PLAN; EFFECT OF REJECTION BY

ONE OR MORE IMPAIRED CLASSES OF CLAIMS OR INTERESTS

5.1 Impaired Classes of Claims and Interests Entitled to Vote. Holders of Allowed General Unsecured Claims in Class 3 and Holders of Allowed EPI Preferred Interests in Class 4 are each entitled to vote as a class, respectively, to accept or reject the EPI Plan. The Debtor will tabulate votes on the EPI Plan.


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5.2 Acceptance by an Impaired Class. In accordance with sections 1126(c) and 1126(d) of the Bankruptcy Code and except as provided in section 1126(e) of the Bankruptcy Code, (a) an Impaired Class of Claims shall have accepted the EPI Plan if the EPI Plan is accepted by the Holders of at least two-thirds in dollar amount and more than one-half (½) in number of the Allowed Claims of such Class that have timely and properly voted to accept or reject the EPI Plan; and (b) the Impaired Class of EPI Preferred Interests shall have accepted the EPI Plan if the EPI Plan is accepted by the Holders of at least two-thirds in amount of the Allowed EPI Preferred Interests of such Class that have timely and properly voted to accept or reject the EPI Plan.

5.3 Presumed Acceptances by Unimpaired Classes. Class 1 Miscellaneous Secured Claims and Class 2 Priority Non-Tax Claims are Unimpaired by the EPI Plan. Under section 1126(f) of the Bankruptcy Code, such Holders are conclusively presumed to accept the EPI Plan, and the votes of such Holders will not be solicited.

5.4 Classes Deemed to Reject the EPI Plan. Class 5 Subordinated Claims, Class 6 Intercompany Claims, and Class 7 EPI Interests will not receive any distribution under the EPI Plan and are, therefore, Impaired. Both Classes are presumed to have rejected the EPI Plan pursuant to section 1126(g) of the Bankruptcy Code. The votes of Holders of Class 5 Subordinated Claims, Class 6 Intercompany Claims, and Class 7 EPI Interests will not be solicited.

5.5 Non-Consensual Confirmation. In the event that less than all Impaired Classes vote to accept the EPI Plan, the Debtor will seek Confirmation of the EPI Plan under section 1129(b) of the Bankruptcy Code.

5.6 Confirmability and Severability of the EPI Plan. The confirmation requirements of section 1129 of the Bankruptcy Code must be satisfied. A determination by the Bankruptcy Court that the EPI Plan is not confirmable pursuant to section 1129 of the Bankruptcy Code shall not limit or affect the Debtor’s ability to modify the EPI Plan to satisfy the confirmation requirements of section 1129 of the Bankruptcy Code.

ARTICLE VI MEANS FOR IMPLEMENTATION OF THE EPI PLAN – FORMATION OF THE EPI

LIQUIDATING TRUST

After the EPI Effective Date, the EPI Plan shall be implemented as follows:

6.1 Appointment of the EPI Liquidating Trustees. The EPI Liquidating Trustees shall be identified in the EPI Plan Supplement. At the EPI Plan Confirmation Hearing, the Bankruptcy Court shall consider and, if appropriate, ratify the selection of the EPI Liquidating Trustees. All compensation for the EPI Liquidating Trustees shall be paid from the EPI Liquidating Trust Assets in accordance with the terms of the EPI Plan and the EPI Liquidating Trust Agreement. The term of each EPI Liquidating Trustee shall commence upon execution of the EPI Liquidating Trust Agreement on the EPI Effective Date. The EPI Liquidating Trustees shall not be required to give any bond or surety or other security for the performance of their duties unless otherwise ordered by the Bankruptcy Court. The EPI Liquidating Trust Agreement shall be provided in the EPI Plan Supplement. On the EPI Effective Date, all Beneficiaries of the EPI Liquidating Trust shall be deemed to have ratified and become bound by the terms and conditions


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of the EPI Liquidating Trust Agreement. In the event that any EPI Liquidating Trustee resigns or is removed, terminated, or otherwise unable to serve as an EPI Liquidating Trustee, its successor shall be appointed as set forth in the EPI Liquidating Trust Agreement. Any successor EPI Liquidating Trustee appointed shall be bound by and comply with the terms of the EPI Plan, the EPI Confirmation Order, and the EPI Liquidating Trust Agreement.

6.2 Creation of EPI Liquidating Trust. On the EPI Effective Date, the EPI Liquidating Trustees shall sign the EPI Liquidating Trust Agreement and, in their capacities as EPI Liquidating Trustees, accept all EPI Liquidating Trust Assets on behalf of the Beneficiaries thereof, and be authorized (i) to obtain, collect, seek the turnover of, liquidate, and collect all of the EPI Liquidating Trust Assets not in the possession or control of the Debtor or the EPI Liquidating Trustees and (ii) to prosecute or compromise (subject to the terms of the Liquidating Trust Agreement) the Causes of Action. The EPI Liquidating Trust will then be created and effective without any further action by the Bankruptcy Court or any Person as of the EPI Effective Date. The EPI Liquidating Trust shall be established for the primary purpose of prosecuting the Causes of Action, liquidating the EPI Liquidating Trust Assets, and making Distributions in accordance with the Global Settlement Agreement, the Global Settlement Order, this EPI Plan, and the EPI Liquidating Trust Agreement, with no objective to continue or engage in the conduct of a trade or business, except only in the event and to the extent necessary to, and consistent with, the liquidating purpose of the EPI Liquidating Trust.

6.3 Beneficiaries of EPI Liquidating Trust. The Holders of Allowed General Unsecured Claims against the Debtor and the Holders of Allowed EPI Preferred Interests shall be the Beneficiaries of the EPI Liquidating Trust. Such Beneficiaries shall be bound by the EPI Liquidating Trust Agreement. The interests of the Beneficiaries in the EPI Liquidating Trust shall be uncertificated and non-transferable in accordance with the terms set forth in this EPI Plan and the EPI Liquidating Trust Agreement.

6.4 Vesting and Transfer of Assets to the EPI Liquidating Trust. Under Section 1141(b) of the Bankruptcy Code, the EPI Liquidating Trust Assets shall be assigned, transferred, and vest in the EPI Liquidating Trust upon the EPI Effective Date free and clear of all Liens, Claims, and Interests for the benefit of the EPI Liquidating Trust Beneficiaries; provided, however, that the EPI Liquidating Trustees may abandon or otherwise not accept any Assets that the EPI Liquidating Trustees believe, in good faith, to have no value to, or will be unduly burdensome to, the EPI Liquidating Trust in accordance with the terms of the EPI Liquidating Trust Agreement. Any Assets that the EPI Liquidating Trustees so abandon or otherwise do not accept shall not be property of the EPI Liquidating Trust. As of the EPI Effective Date, all Assets, including the EPI Liquidating Trust Assets shall vest in the EPI Liquidating Trust and all Assets dealt with in this EPI Plan shall be free and clear of all Liens, Claims, and Interests except as otherwise specifically provided in this EPI Plan, the EPI Confirmation Order, the Global Settlement Order, or the Global Settlement Agreement.

6.5 Funding of the EPI Liquidating Trust. The EPI Liquidating Trust shall be funded with (i) Cash of EPI; (ii) proceeds from the liquidation of Madden and Grieve CO2, if any; (iii) net recoveries resulting from the prosecution of any and all Causes of Action; (iii) the EPA Warrants; (iv) the benefits, rights, interests, and proceeds of any Insurance Policies with respect to EPI, Madden, and Grieve CO2 to the extent payable to such entities in accordance with the terms


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of the Insurance Policies (subject to the other provisions of this Plan, including Section 6.14, as to the assignment of the Madden Insurance Proceeds to COP); and (v) any and all other Assets belonging to the Estate (all of which shall be distributed in accordance with the terms of this EPI Plan, the EPI Confirmation Order, the EPI Litigation Trust Agreement, the Global Settlement Agreement, and the Global Settlement Order). Notwithstanding anything in this EPI Plan to the contrary, EPI reserves all of its rights to transfer the assets of Grieve CO2 or abandon such assets and/or any interests in any of the Grieve Entities in accordance with the provisions of the Bankruptcy Code.

6.6 Distributions from the Liquidating Trust. Other than the Distribution of EPA Warrants, with respect to which Distributions shall be made to Holders of Allowed General Unsecured Claims on the EPI Effective Date (or as soon as reasonably practicable thereafter if a General Unsecured Claim is not Allowed on the EPI Effective Date), Distributions from the EPI Liquidating Trust shall be made in accordance with (and in accordance with the terms of) this EPI Plan, the EPI Liquidating Trust Agreement, the Global Settlement Agreement, and the Global Settlement Order. For the avoidance of doubt, other than the Distributions of EPA Warrants as provided herein, the EPI Liquidating Trust Operating Expenses shall be paid prior to making any Distributions to Beneficiaries of the EPI Liquidating Trust. In addition, and for the avoidance of doubt, Unpaid Chapter 11 Professional Fee Claims shall be paid prior to making any distributions to Beneficiaries of the EPI Liquidating Trust, unless the Holder of an Unpaid Chapter 11 Professional Fee Claim and the Liquidating Trust otherwise agree.

6.7 Certain Powers and Duties of the EPI Liquidating Trust and the EPI Liquidating Trustees.

(a) General Powers of the EPI Liquidating Trustees. Subject to the terms of the EPI Liquidating Trust Agreement, the EPI Liquidating Trustees shall have, and enjoy the powers of, the Debtor’s authorized representative for all purposes and shall have the power and authority to perform the acts described in the EPI Liquidating Trust Agreement (subject to approval by the Bankruptcy Court where applicable), in addition to any powers granted by law or conferred to them by any other provision of this EPI Plan, provided, however, that enumeration of the following powers shall not be considered in any way to limit or control the power and authority of the EPI Liquidating Trustees to act as specifically authorized by any other provision of this EPI Plan, the EPI Liquidating Trust Agreement, and/or any applicable law, and to act in such manner as the EPI Liquidating Trustees may deem necessary or appropriate, including, without limitation, to discharge all obligations assumed by the EPI Liquidating Trustees or provided herein, to conserve and protect the EPI Liquidating Trust and the EPI Liquidating Trust Assets, or to confer on the Beneficiaries the benefits intended to be conferred upon them by this EPI Plan. The powers, rights, and responsibilities of the EPI Liquidating Trustees shall be specified in the EPI Liquidating Trust Agreement, shall be subject to the terms of the Global Settlement Order and the Global Settlement Agreement, and, subject to the foregoing, shall include the authority, power, and responsibility to: (a) receive, manage, invest, supervise, and protect EPI Liquidating Trust Assets; (b) pay taxes or other obligations incurred by the EPI Liquidating Trust and issue to employees or other Persons, and/or file with the appropriate Governmental Units, applicable tax and wage returns and forms; (c) retain and compensate, without further order of the Bankruptcy Court, the services of employees, professionals, and consultants to advise and assist in the administration, prosecution, and Distribution of EPI Liquidating Trust Assets; (d) calculate and implement Distributions of EPI


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Liquidating Trust Assets; (e) investigate, prosecute, compromise, and settle, in accordance with the specific terms of the EPI Liquidating Trust Agreement, the Causes of Action vested in the EPI Liquidating Trust, as set forth in the EPI Liquidating Trust Agreement; (f) object to and resolve Claims and Interests in accordance with this EPI Plan, subject to the terms of the EPI Liquidating Trust Agreement, including the power to object to Claims against and Interests in the Debtor, and to subordinate and recharacterize Claims by objection, motion, or adversary proceeding against the Debtor and, subject to the occurrence of the Effective Date, without any further notice or action, order or approval by the Bankruptcy Court, for Claims and Interests with a value less than or equal to $250,000.00; (g) undertake all administrative functions of the Chapter 11 Case, including the payment of Statutory Fees incurred post-EPI Effective Date with respect to distributions from the EPI Liquidating Trust and the ultimate closing of the Chapter 11 Case and dissolution of the Debtor and any of its Affiliates; and (h) take such other action as may be vested in or assumed by the EPI Liquidating Trustees consistent with this EPI Plan, the EPI Liquidating Trust Agreement, and any applicable Orders of the Bankruptcy Court, or as may be necessary and proper to carry out the provisions of this EPI Plan.

Except as expressly set forth in this EPI Plan and in the EPI Liquidating Trust Agreement, the EPI Liquidating Trustees, on behalf of the EPI Liquidating Trust, shall have absolute discretion, but subject to the consent of BSP and the provisions of sections 5.4 and 7.3 of the Liquidating Trust Agreement, to pursue or not to pursue, or settle and compromise, any Causes of Action the EPI Liquidating Trustees determine is in the best interests of the EPI Liquidating Trust’s Beneficiaries and consistent with the purposes of the EPI Liquidating Trust, and shall be indemnified to the fullest extent permitted under applicable law by the EPI Liquidating Trust for the outcome of his, her, or its decisions, other than those decisions constituting fraud, gross negligence, willful misconduct, bad faith, or self-dealing.

The EPI Liquidating Trustees may incur any reasonable and necessary expenses in liquidating and converting the EPI Liquidating Trust Assets to Cash. The EPI Liquidating Trust is the successor to the Debtor, its Estate, its books and records, and its privileges and protections (it being understood that to the extent the EPI Liquidating Trustees are a successor with respect to documents subject to a common interest privilege with any third party, nothing herein shall relieve the EPI Liquidating Trustees of any formal or informal obligations with respect to such common interest agreements). The EPI Liquidating Trustees shall have standing, authority, power, and right to assert, prosecute, and/or settle the Causes of Action, in accordance with the provisions of the Liquidating Trust Agreement, including, with respect to the EPI Liquidating Trust, making a claim under Insurance Policies based upon its powers as a bankruptcy-appointed representative of the Debtor’s Estate with the same or similar abilities possessed by insolvency trustees, receivers, examiners, conservators, liquidators, rehabilitators, or similar officials. The Causes of Action will vest in the EPI Liquidating Trust as set forth in the EPI Liquidating Trust Agreement; provided, however, there can be no assurance as to the outcome of such Causes of Action or the dollar amount of any recovery that will be obtained by the EPI Liquidating Trust.

(b) Books and Records. On the EPI Effective Date, the EPI Liquidating Trust shall: (x) take possession of all books, records, and files of the Debtor and the Estate that were not transferred in connection with the EPA Plan; and (y) provide for the retention and storage of such books, records, and files until such time as the EPI Liquidating Trustees determine, in accordance


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with the EPI Liquidating Trust Agreement, that retention of same is no longer necessary or beneficial.

(c) Investments of Cash. Cash held pending Distribution shall, to the extent permitted by applicable law and in the discretion of the EPI Liquidating Trustees, be invested by the EPI Liquidating Trustees in (a) direct obligations of, or obligations guaranteed by, or obligations secured by, the United States of America (including without limitation United States Treasury Bills); (b) obligations of any agency or corporation that is or may hereafter be created by or pursuant to an Act of the Congress of the United States as an agency or instrumentality thereof, or (c) demand deposits or short-term certificates of deposit at any bank or trust company that has, at the time of the acquisition by the EPI Liquidating Trustees of such investments, capital stock and surplus aggregating at least $100 million and whose short-term debt obligations are rated by at least two nationally recognized statistical rating organizations in one of the two highest categories therefor; provided, however that such investments are investments permitted to be made by a liquidating trust within the meaning of Treasury Regulation section 301.7701-4(d), as reflected therein, or under applicable Internal Revenue Service (“IRS”) guidelines, rulings, or other controlling authorities. Such investments shall mature in such amounts and at such times as, in the judgment of the EPI Liquidating Trustee at the times such investments are made, are necessary, or are desirable with a view to providing funds when needed to make Distributions from the EPI Liquidating Trust Assets. Any investment purchased with the EPI Liquidating Trust Assets shall be deemed included among the EPI Liquidating Trust Assets.

(d) Deposit of Cash. In addition to the above, the EPI Liquidating Trustees shall be permitted, at the discretion of the EPI Liquidating Trustees, to deposit Cash in (a) any banks that are party to a Uniform Depository Agreement with the Office of the United States Trustee or (b) any banks that company with the requirements of section 345 of the Bankruptcy Code.

(e) Costs and Expenses of Administration of the EPI Liquidating Trust. All EPI Liquidating Trust Operating Expenses shall be the responsibility of and paid by the EPI Liquidating Trust in accordance with the EPI Liquidating Trust Agreement.

(f) Reporting. In no event later than thirty (30) Business Days after the end of the first full quarter following the EPI Effective Date and on a quarterly basis thereafter until all Cash in the EPI Liquidating Trust has been released or distributed in accordance with this EPI Plan and the EPI Liquidating Trust Agreement, the EPI Liquidating Trustees shall File reports setting forth the amounts, recipients, and dates of all Distributions through each applicable reporting period.

6.8 United States Federal Income Tax Treatment of the EPI Liquidating Trust for the EPI Liquidating Trust Assets. For federal income tax purposes, it is intended that the EPI Liquidating Trust be classified as a liquidating trust under Section 301.7701-4 of the Treasury regulations and that the trust be owned by its Beneficiaries. Accordingly, for federal income tax purposes, it is intended that the Beneficiaries be treated as if they had received a distribution from the Estate of an undivided interest in the EPI Liquidating Trust Assets (to the extent of the value of their respective share in the applicable Assets) and then contributed such interests to the EPI Liquidating Trust, and the Beneficiaries will be treated as the grantors and owners thereof.


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The EPI Liquidating Trustees shall be responsible for filing all federal, state, and local tax returns for the EPI Liquidating Trust and for the Debtor (and Post-EPI Effective Date Debtor, as the case may be). The EPI Liquidating Trust shall comply with all withholding and reporting requirements imposed by any federal, state, or local taxing authority, and all Distributions made by the EPI Liquidating Trust shall be subject to any such withholding and reporting requirements. The EPI Liquidating Trustees shall be authorized to take any and all actions that may be necessary or appropriate to comply with such withholding and reporting requirements including, without limitation, requiring that, as a condition to the receipt of a Distribution, the Holder of an Allowed Claim or the Holder of an EPI Preferred Interest complete the appropriate IRS Form W-8 or IRS Form W-9, as applicable to each Holder. Notwithstanding any other provision of this EPI Plan, (a) each Holder of an Allowed Claim or an EPI Preferred Interest that is to receive a Distribution from the EPI Liquidating Trust shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed on such Holder by any Governmental Unit, including income and other tax obligations, on account of such Distribution, and (b) no Distribution shall be made to or on behalf of such Holder under this EPI Plan unless and until such Holder has made arrangements satisfactory to the EPI Liquidating Trustees to allow the EPI Liquidating Trust to comply with its tax withholding and reporting requirements.

Any property to be distributed by the EPI Liquidating Trust shall, pending the implementation of such arrangements, be treated as an undeliverable Distribution to be held by the EPI Liquidating Trustees, as the case may be, until such time as the Liquidating Trustees are satisfied with the Holder’s arrangements for any withholding tax obligations.

6.9 Governance of the Debtor. Following the EPI Effective Date, the EPI Liquidating Trustees shall also be, and shall enjoy the powers of, the Debtor’s authorized representatives for all purposes, including, without limitation, section 1123 of the Bankruptcy Code. No further proof of such power shall be necessary or required. Upon the EPI Effective Date, the Board shall be deemed to have resigned and the Debtor shall be managed by the EPI Liquidating Trust, through the EPI Liquidating Trustees.

6.10 Term of EPI Liquidating Trust. The EPI Liquidating Trustees shall be discharged and the EPI Liquidating Trust shall be terminated at such time as (i) all Disputed Claims against the Debtor have been settled, Allowed, Disallowed, or otherwise resolved, (ii) all of the Causes of Action have been prosecuted to completion or settled and the EPI Liquidating Trust Assets have been collected and liquidated, (iii) all duties and obligations of the EPI Liquidating Trustees under the EPI Liquidating Trust Agreement have been fulfilled, (iv) all Distributions required to be made by the EPI Liquidating Trust under this EPI Plan and the EPI Liquidating Trust Agreement have been made, and (v) the Chapter 11 Case has been closed; provided, however, that in no event shall the EPI Liquidating Trust be dissolved later than five (5) years from the EPI Effective Date unless the Bankruptcy Court, upon motion within the six-month period prior to the fifth anniversary (or the end of any extension period approved by the Bankruptcy Court), determines that a fixed period extension (not to exceed one (1) year, together with any prior extensions, unless the EPI Liquidating Trust has procured a favorable letter ruling from the Internal Revenue Service that any further extension would not adversely affect the status of the EPI Liquidating Trust as a liquidating trust for federal income tax purposes) is necessary to facilitate or complete the recovery and liquidation of the EPI Liquidating Trust Assets.


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6.11 Limitation of Liability of the EPI Liquidating Trustees. The EPI Liquidating Trust shall indemnify the EPI Liquidating Trustees and the Liquidating Trust’s professionals against any losses, liabilities, expenses (including attorneys’ fees and disbursements), damages, taxes, suits, or claims that the EPI Liquidating Trustees or the EPI Liquidating Trust’s professionals may incur or sustain by reason of being or having been an EPI Liquidating Trustee or professionals of the EPI Liquidating Trust for performing any functions incidental to such service; provided, however, the foregoing shall not relieve the EPI Liquidating Trustees or the EPI Liquidating Trust’s professionals from liability for bad faith, willful misconduct, reckless disregard of duty, criminal conduct, gross negligence, fraud, or self-dealing, or, in the case of an attorney professional and, as required under Rule 1.8(h)(1) of the Delaware Layers’ Rules of Professional Conduct, malpractice.

6.12 Standard of Care and Exculpation. The EPI Liquidating Trust, its professionals and its employees and the EPI Liquidating Trustees are exonerated, held harmless, and indemnified by the Debtor and its Estate for any act or omission in respect of the EPI Liquidating Trustees’ duties under the EPI Plan, except for fraud, gross negligence, and willful misconduct (and may, but are not required to, maintain insurance for the purpose of such indemnification), as set forth in the EPI Liquidating Trust Agreement.

6.13 Transfer Taxes. Any transfer of the EPI Liquidating Plan Assets or any portion(s) of the EPI Liquidating Plan Assets pursuant to this EPI Plan shall constitute a “transfer under a plan” within the purview of section 1146(c) of the Bankruptcy Code and shall not be subject to transfer, stamp, or similar taxes.

6.14 ConocoPhillips/Burlington Resources. Notwithstanding anything to the contrary contained in this Plan, the EPI Plan Supplement, or the EPI Confirmation Order, any Insurance Policies held by, or in which Madden is or was an insured on such policy, the proceeds of which are Madden Insurance Proceeds, are not property of the Debtor’s bankruptcy estate, but are property of COP as the assignee of certain of Madden’s assets or the loss payee under the subject Insurance Policies representing the Madden Insurance Proceeds. In the event that any of EPI, the EPI Liquidating Trust, or Post-EPI Effective Date Debtor receives any of the Madden Insurance Proceeds after the assignment of the Madden Insurance Proceeds to COP, such Madden Insurance Proceeds shall be immediately turned over in full to COP without offset, recoupment or other reduction.

ARTICLE VII UNEXPIRED LEASES AND EXECUTORY CONTRACTS

7.1 Contracts and Leases. On the EPI Effective Date, all Pre-EPI Petition Date executory contracts, employment agreements and unexpired leases, with the exception of contracts that constitute contracts of insurance in favor of, or that benefit, the Debtor or its Estate and those leases and contracts that were previously assumed or rejected shall be deemed automatically rejected as of the EPI Effective Date or such earlier date as the Debtor may have unequivocally terminated such lease or contract. The EPI Confirmation Order shall constitute an order of the Bankruptcy Court approving such rejections, pursuant to section 365 of the Bankruptcy Code.


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7.2 Rejection Damages Bar Date. If the rejection by the Debtor, pursuant to the EPI Plan, of an executory contract or unexpired lease results in a Claim, then such Claim shall be forever barred and shall not be enforceable against the Debtor, the EPI Liquidating Trust, or the properties of any of them unless a proof of claim is filed with the clerk of the Bankruptcy Court and served upon counsel to the Debtor and counsel to the EPI Liquidating Trust within thirty (30) days after the EPI Effective Date.

7.3 Objections to Rejection Damage Claims. Objections to proofs of Claim for damages resulting from rejected executory contracts or unexpired leases shall be filed by the EPI Liquidating Trust any time prior to the Claims Objection Deadline, as such date may be extended by the Bankruptcy Court upon request of the EPI Liquidating Trustees. Said objections shall be served upon the Holder of the Claim to which such objection is made (or Holder’s counsel, when applicable) and any Rejection Claim that is Allowed shall be treated as an Allowed Class 3 General Unsecured Claim in accordance with this EPI Plan.

ARTICLE VIII PROVISIONS GOVERNING DISTRIBUTIONS

8.1 Time of Distributions. Except as otherwise provided for herein, ordered by the Bankruptcy Court, or otherwise, distributions under the EPI Plan shall be made as soon as is practicable on the later to occur of (a) the EPI Effective Date, (b) the date a General Unsecured Claim or EPI Preferred Interest becomes Allowed, or (c) the date that Cash becomes available for distribution to a particular Class pursuant to the treatment of such Class under this EPI Plan, in accordance with the Global Settlement Agreement and the Global Settlement Order. The EPI Liquidating Trustees shall establish a reserve or reserves of Cash, estimated to be sufficient to satisfy any incurred and anticipated Post-EPI Effective Date Claims incurred by the EPI Liquidating Trust. The EPI Liquidating Trustees may make additional distributions of Cash and property received after the initial distributions. Such additional distributions may be made at such times and in such amounts as determined by the EPI Liquidating Trustees.

8.2 Interest on Claims. Unless otherwise specifically provided for in this EPI Plan or the EPI Confirmation Order, or as required by section 506 of the Bankruptcy Code, post-EPI Petition Date interest shall not accrue or be paid on Claims, and no Claimholder shall be entitled to interest accruing on or after the Petition Date on any Claim. Interest shall not accrue or be paid upon any Disputed Claim in respect of the period from the Petition Date to the date a final distribution is made thereon if and after such Disputed Claim becomes an Allowed Claim.


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8.3 Claims Administration Responsibility. The EPI Liquidation Trustees shall retain sole responsibility for administering, disputing, objecting to, compromising, or otherwise resolving issues related to distributions to Holders of Claims or Holders of EPI Preferred Interests, subject to the terms of this EPI Plan.

8.4 Procedures for Treating and Resolving Disputed Claims. No Distributions Pending Allowance. Except as set forth in this EPI Plan, no payments or distributions will be made with respect to all or any portion of a Disputed Claim unless and until all objections to such Disputed Claim have been settled or withdrawn or have been determined by a Final Order, and the Disputed Claim has become an Allowed Claim. All objections to Claims must be filed by the Claims Objection Deadline, as such time period may be extended by the Bankruptcy Court.

(a) Distribution Reserve. The EPI Liquidating Trustees shall fund the Distribution Reserve prior to making Distributions to Holders of Allowed Claims and Holders of Allowed EPI Preferred Interests. The EPI Liquidating Trustees may request estimation for any Disputed Claim that is contingent or unliquidated, and the EPI Liquidating Trustees will fund the Distribution Reserve based upon the estimated amount of each such Disputed Claim or Disputed EPI Preferred Interest as determined by the Bankruptcy Court. In the event a contingent or unliquidated Disputed Claim or Disputed EPI Preferred Interest is not estimated pursuant to an Order of the Bankruptcy Court, the EPI Liquidating Trustees will fund the Distribution Reserve based upon the appropriate Pro Rata percentage distribution of the Face Amount of such Disputed Claim or Disputed EPI Preferred Interest.

(b) Distributions After Allowance. Payments and distributions from the Distribution Reserve on account of a Disputed Claim, to the extent that such Disputed Claim ultimately becomes an Allowed Claim, will be made in accordance with provisions of this EPI Plan that govern the Class in which such Claim is classified. Promptly after the date when the order or judgment of the Bankruptcy Court allowing all or part of such Claim becomes a Final Order, the EPI Liquidating Trustees shall distribute to the Holder of such Claim any Cash allocated to such Claim in the Distribution Reserve that would have been distributed on the dates distributions were previously made on account of Allowed Claims had such Claim been an Allowed Claim on such dates. All Distributions made under this section of this EPI Plan on account of an Allowed Claim shall be made as if such Claim had been an Allowed Claim on the dates distributions were previously made to Allowed Claims.

(c) Partial Distributions. Notwithstanding any other provision of this EPI Plan or the documents referred to by this EPI Plan, the EPI Liquidating Trustees may make one or more distributions to the Holders of Disputed Claims, based on the distributions which such Holders would otherwise be entitled to receive based on the undisputed portions of such Disputed Claims if the Liquidating Trustees had not objected to such Disputed Claims, if any. The EPI Liquidating Trustees may only make Distributions on the undisputed portions of all Disputed Claims, or none at all. Notwithstanding the foregoing, the EPI Liquidating Trustees may not authorize or pay any distribution to entities who may be liable to the EPI Liquidating Trust with respect to a Cause of Action or otherwise, which Disputed Claim may be paid, if at all, only after the Holder of such Disputed Claim has discharged its liability to the EPI Liquidating Trust on account of the Cause of Action or otherwise.


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8.5 Delivery of Distributions. Distributions to Holders of Allowed Claims or Holders of Allowed EPI Preferred Interests, shall be delivered by the EPI Liquidation Trustees (a) to the addresses set forth on the proofs of claim filed by such Holders (or at the last known addresses of such Holders or such other address as is provided to the Liquidating Trustees by the Holders or their counsel, whether or not a proof of claim or interest has been filed), (b) to the addresses set forth in any written notices of address changes delivered to the EPI Liquidation Trustees after the date of any related proof of claim, (c) to the addresses reflected in the Schedules if no proof of claim or interest has been filed and the EPI Liquidation Trustees have not received a written notice of a change of address, or (d) in the case of a Claimholder whose Allowed Claim is governed by an agreement and is administered by an agent or servicer, to the agent or servicer which shall then be responsible for making delivery of the distribution to such Claimholder.

8.6 Setoff.

(a) By the Debtor, the EPI Liquidating Trustees, or the EPI Liquidating Trust.

The Debtor or the EPI Liquidating Trust may, pursuant to Bankruptcy Code sections 553 or 558 or any other applicable law, but shall not be required to, set off against any Claim, and the Distributions to be made pursuant to this EPI Plan in respect of such Claim, Claims of any nature whatsoever that the Debtor may have against the Holder of such Claim; provided, however, that neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by any of the Debtor, the EPI Liquidating Trustees, or the EPI Liquidating Trust, as the case may be, of any such Claim that the Debtor may have against such Holder.

(b) By Non-Debtors.

Unless otherwise authorized by a Final Order, any Holder of a Claim, other than BSP (which shall be deemed to have preserved its setoff rights, if any), must assert any setoff rights against a Claim by the Debtor against such Entity by timely filing an appropriate motion on or before the Confirmation Date seeking authority to setoff, or will be deemed to have waived and be forever barred from asserting any right to setoff against a Claim by the Debtor; provided, however, that the right of the Debtor, the EPI Liquidating Trustees, or the EPI Liquidating Trust, as applicable, to object to the validity of any asserted right of setoff shall be preserved.

8.7 Unclaimed or Undeliverable Distributions. If the Distribution to any Claimholder or Holder of an EPI Preferred Interest is returned as undeliverable, no further distributions to such Claimholder or Holder of an EPI Preferred Interest shall be made unless and until the EPI Liquidation Trustees are notified of the then current address of such Claimholder or Holder of an EPI Preferred Interest, at which time all missed distributions shall be made to such Claimholder or Holder of an EPI Preferred Interest, without interest. Amounts in respect of undeliverable distributions shall be returned to the EPI Liquidation Trustees until such distributions are claimed. If any distribution under the EPI Plan is returned to the EPI Liquidating Trust as undeliverable or the check or other similar instrument or Distribution by the EPI Liquidating Trust remains uncashed or unclaimed, as applicable, for ninety (90) days, such Cash shall be deemed to be Unclaimed Property


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Upon property becoming Unclaimed Property, it immediately shall revest in the EPI Liquidating Trust and distributed in accordance with the EPI Plan, the Global Settlement Order and Global Settlement Agreement. All claims for undeliverable distributions shall be made on or before the thirtieth (30th) day after the final distribution under this EPI Plan. After such date, all property unclaimed by any Claimholder or Holder of an EPI Preferred Interest shall revert to the EPI Liquidation Trustees to be redistributed to Holders of Allowed Claims and EPI Preferred Interests in accordance with this EPI Plan, the Global Settlement Agreement, and the Global Settlement Order.

8.8 De Minimis Distributions. Notwithstanding any other provision of the EPI Plan, the EPI Liquidating Trustees or any other Person acting on behalf of the EPI Liquidating Trust shall not be required to make distributions of Cash less than $25.00 in value. In addition, the EPI Liquidating Trustees shall not be required to make a distribution on account of any Allowed Claim or EPI Preferred Interest if the aggregate amount of all distributions authorized to be made on such date is less than $20,000, in which case such distributions shall be deferred to the next Distribution Date, unless such distribution would be the final distribution to either or both of Holders of Allowed Claims or Allowed EPI Preferred Interests.

8.9 Manner of Payment Under this EPI Plan. The Cash Distributions made pursuant to this EPI Plan shall be made in U.S. dollars by checks drawn on domestic banks selected by the EPI Liquidating Trustees, as applicable, or by wire transfer from a domestic bank selected at the option of the EPI Liquidating Trustees.

8.10 Final Distribution Report. The EPI Liquidating Trustees shall prepare and file with the Bankruptcy Court a final report (the “Final Distribution Report”) twenty (20) days prior to making the Final Distribution under this EPI Plan. The report shall disclose the total amount distributed or to be distributed under this EPI Plan.

8.11 Post-Final Distribution Report Assets. Any assets received by the EPI Liquidating Trustees after the filing of the Final Distribution Report shall be tendered to the Holders of Allowed Claims and Holders of EPI Preferred Interests in accordance with the Distribution requirements otherwise set forth in this EPI Plan, the Global Settlement Agreement, and the Global Settlement Order.

8.12 Exemption from Securities Laws. The issuance and distribution of the EPA Warrants shall be exempt from registration under the Securities Act of 1933 and any other applicable securities laws pursuant to section 1145 of the Bankruptcy Code, to the maximum extent permitted thereunder. The Warrants may be resold by the holders thereof without restriction, except to the extent that any such holder is deemed to be an “underwriter” as defined in section 1145(b)(1) of the Bankruptcy Code.

ARTICLE IX SETTLEMENT, RELEASE, INJUNCTION AND RELATED PROVISIONS

9.1 Release of Liens. Except as otherwise provided in this EPI Plan or in any contract, instrument, release, or other agreement or document created pursuant to this EPI Plan, on the EPI Effective Date and concurrently with the applicable distributions made pursuant to this EPI Plan,


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all mortgages, deeds of trust, liens, pledges or other security interests against any property of the Estate shall be fully released and discharged, and all of the right, title and interest of any holder of such mortgages, deeds of trust, liens, pledges or other security interests shall revert to the Estate and its successors and assigns.

9.2 Liabilities to, and Rights of, Governmental Units. Nothing in this EPI Plan or the EPI Confirmation Order shall discharge, release, or 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 EPI Confirmation Date; (3) any liability to a Governmental Unit on the part of any Person other than the Debtor or the EPI Liquidation Trustees; or (4) any criminal liability. Nothing in this EPI Plan or the EPI Confirmation Order shall enjoin or otherwise bar any Governmental Unit from asserting or enforcing, outside the Bankruptcy Court, any liability described in the preceding sentence. The release and injunction provisions contained in this EPI Plan and the EPI Confirmation Order are not intended and shall not be construed to bar any Governmental Unit from, after the EPI Confirmation Date, pursuing any police or regulatory action.

9.3 Releases by the Debtor and Its Estate. ON THE EPI EFFECTIVE DATE, THE RELEASED PARTIES WILL BE EXPRESSLY, UNCONDITIONALLY, GENERALLY AND INDIVIDUALLY AND COLLECTIVELY RELEASED, ACQUITTED, AND DISCHARGED BY THE DEBTOR AND ITS ESTATE FROM ANY AND ALL ACTIONS, CLAIMS, OBLIGATIONS, RIGHTS, SUITS, DAMAGES, CAUSES OF ACTION, REMEDIES AND LIABILITIES WHATSOEVER, INCLUDING ANY DERIVATIVE CLAIMS ASSERTED OR ASSERTABLE ON BEHALF OF THE DEBTOR, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, EXISTING OR HEREINAFTER ARISING, IN LAW, EQUITY, CONTRACT, TORT OR OTHERWISE, BY STATUTE OR OTHERWISE, THAT THE DEBTOR, THE EPI LIQUIDATING TRUST, THE DEBTOR’S ESTATE OR THE DEBTOR’S AFFILIATES (WHETHER INDIVIDUALLY OR COLLECTIVELY) OR ON BEHALF OF THE HOLDER OF ANY CLAIM OR INTEREST OR OTHER ENTITY, EVER HAD, NOW HAS OR HEREAFTER CAN, SHALL, OR MAY HAVE, BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE DEBTOR, THE DEBTOR’S LIQUIDATION, THE CHAPTER 11 CASE, THE PURCHASE, SALE OR RESCISSION OF THE PURCHASE OR SALE OF ANY SECURITY OF THE DEBTOR, THE SUBJECT MATTER OF, OR THE TRANSACTIONS OR EVENTS GIVING RISE TO, ANY CLAIM OR INTEREST THAT IS TREATED IN THE EPI PLAN, THE BUSINESS OR CONTRACTUAL ARRANGEMENTS BETWEEN THE DEBTOR AND ANY RELEASED PARTY, THE RESTRUCTURING OF CLAIMS AND INTERESTS BEFORE OR DURING THE CHAPTER 11 CASE THE NEGOTIATION, FORMULATION, PREPARATION, OR PERFORMANCE OF THE EPI PLAN, THE EPI DISCLOSURE STATEMENT, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION OR IMPLEMENTATION OF THE EPI PLAN, OR RELATED AGREEMENTS, INSTRUMENTS ,OR OTHER DOCUMENTS OR ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE RELATING TO THE DEBTOR OR THE FOREGOING TAKING PLACE ON OR BEFORE THE CONFIRMATION DATE OF THE EPI PLAN, EXCEPT FOR ANY CLAIMS AND CAUSES OF ACTION FOR ACTUAL FRAUD OR GROSS


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MISCONDUCT, IN EACH CASE AS DETERMINED BY FINAL ORDER OF THE BANKRUPTCY COURT OR ANY OTHER COURT OF COMPETENT JURISDICTION.

9.4 Releases by Holders. SUBJECT TO THE RIGHT OF EACH HOLDER OF A CLAIM AGAINST OR INTEREST IN THE DEBTOR TO AFFIRMATIVELY ‘OPT OUT” OF THE RELEASE SET FORTH BELOW BY NOTING SUCH “OPT OUT” ELECTION ON THE BALLOT TO VOTE ON THE EPI PLAN, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AS SUCH LAW MAY BE EXTENDED OR INTERPRETED SUBSEQUENT TO THE EPI EFFECTIVE DATE, EXCEPT AS OTHERWISE PROVIDED IN THE EPI PLAN OR THE EPI CONFIRMATION ORDER, ON THE EPI EFFECTIVE DATE, EACH HOLDER OF A CLAIM AGAINST OR INTEREST IN THE DEBTOR SHALL BE DEEMED TO HAVE EXPRESSLY, UNCONDITIONALLY, GENERALLY AND INDIVIDUALLY AND COLLECTIVELY, RELEASED, ACQUITTED, AND DISCHARGED THE RELEASED PARTIES FROM ANY AND ALL ACTIONS, CLAIMS, INTERESTS, OBLIGATIONS, RIGHTS, SUITS, DAMAGES, CAUSES OF ACTION, REMEDIES AND LIABILITIES WHATSOEVER, INCLUDING ANY DERIVATIVE CLAIMS ASSERTED OR ASSERTABLE ON BEHALF OF THE DEBTOR, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, EXISTING OR HEREAFTER ARISING, IN LAW, EQUITY, CONTRACT, TORT OR OTHERWISE, THAT SUCH HOLDER (WHETHER INDIVIDUALLY OR COLLECTIVELY) EVER HAD, NOW HAS OR HEREAFTER CAN, SHALL OR MAY HAVE, BASED ON OR RELATING TO, OR IN ANY MANNER ARISING FROM, IN WHOLE OR IN PART, THE DEBTOR, THE DEBTOR’S LIQUIDATION, THE CHAPTER 11 CASE, THE PURCHASE, SALE OR RESCISSION OF THE PURCHASE OR SALE OF ANY SECURITY OF THE DEBTOR, THE SUBJECT MATTER OF, OR THE TRANSACTIONS OR EVENTS GIVING RISE TO, ANY CLAIM OR INTEREST THAT IS TREATED IN THE EPI PLAN, THE BUSINESS OR CONTRACTUAL ARRANGEMENTS BETWEEN THE DEBTOR AND ANY RELEASED PARTY, THE RESTRUCTURING OF CLAIMS AND INTERESTS BEFORE OR DURING THE CHAPTER 11 CASE, THE NEGOTIATION, FORMULATION, PREPARATION, OR PERFORMANCE OF THE EPI PLAN OR THE EPI DISCLOSURE STATEMENT, THE PURSUIT OF CONFIRMATION, THE PURSUIT OF CONSUMMATION, THE ADMINISTRATION OR IMPLEMENTATION OF THE EPI PLAN, OR RELATED AGREEMENTS, INSTRUMENTS, OR OTHER DOCUMENTS OR ANY OTHER ACT OR OMISSION, TRANSACTION, AGREEMENT, EVENT, OR OTHER OCCURRENCE RELATING TO THE DEBTOR OR THE FOREGOING TAKING PLACE ON OR BEFORE THE EPI CONFIRMATION DATE, EXCEPT FOR ANY CLAIMS AND CAUSES OF ACTION FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN EACH CASE AS DETERMINED BY FINAL ORDER OF THE BANKRUPTCY COURT OR ANY OTHER COURT OF COMPETENT JURISDICTION OR THE RIGHTS OF ANY CLAIMHOLDER TO ENFORCE THE EPI PLAN.

9.5 Exculpation. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND WITHOUT AFFECTING OR LIMITING THE DEBTOR RELEASE OR THIRD PARTY RELEASE, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE EPI PLAN, NO EXCULPATED PARTY SHALL HAVE OR INCUR,


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AND EACH EXCULPATED PARTY IS HEREBY RELEASED AND EXCULPATED FROM ANY EXCULPATED CLAIM, OBLIGATION, CAUSE OF ACTION OR LIABILITY FOR ANY EXCULPATED CLAIM, EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BUT IN ALL RESPECTS SUCH PERSONS SHALL BE ENTITLED TO REASONABLY RELY UPON THE ADVICE OF COUNSEL WITH RESPECT TO THEIR DUTIES AND RESPONSIBILITIES PURSUANT TO THE EPI PLAN. THE DEBTOR (AND EACH OF ITS RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS AND ATTORNEYS) HAVE PARTICIPATED IN COMPLIANCE WITH THE APPLICABLE PROVISIONS OF THE BANKRUPTCY CODE WITH REGARD TO THE SOLICITATION OF THE EPI PLAN AND THE DISTRIBUTIONS CONTEMPLATED PURSUANT TO THE EPI PLAN AND, THEREFORE, ARE NOT, AND ON ACCOUNT OF SUCH DISTRIBUTIONS SHALL NOT BE, LIABLE AT ANY TIME FOR THE VIOLATION OF ANY APPLICABLE LAW, RULE, OR REGULATION GOVERNING THE SOLICITATION OF ACCEPTANCES OR REJECTIONS OF THE EPI PLAN OR SUCH DISTRIBUTIONS MADE PURSUANT TO THE EPI PLAN.

9.6 Injunction. FROM AND AFTER THE EPI EFFECTIVE DATE, TO THE EXTENT OF THE EXCULPATION AND RELEASES GRANTED IN ARTICLE IX, THE DEBTOR AND HOLDERS OF CLAIMS OR INTERESTS SHALL NOT COMMENCE OR CONTINUE IN ANY MANNER AGAINST THE EXCULPATED PARTIES OR RELEASED PARTIES AND THEIR ASSETS AND PROPERTIES, AS THE CASE MAY BE, ANY SUIT, ACTION OR OTHER PROCEEDING, ON ACCOUNT OF OR RESPECTING ANY CLAIM, DEMAND, LIABILITY, OBLIGATION, DEBT, RIGHT, CAUSE OF ACTION, INTEREST OR REMEDY RELEASED OR TO BE RELEASED PURSUANT TO ARTICLE IX. THE RIGHTS AFFORDED IN THE EPI PLAN AND THE TREATMENT OF ALL CLAIMS AND INTERESTS HEREIN SHALL BE IN EXCHANGE FOR AND IN COMPLETE SATISFACTION OF CLAIMS AND INTERESTS OF ANY NATURE WHATSOEVER, INCLUDING ANY INTEREST ACCRUED ON CLAIMS FROM AND AFTER THE PETITION DATE, AGAINST THE DEBTOR OR ANY OF ITS ASSETS, PROPERTY, OR ESTATE.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR HEREIN OR IN THE EPI CONFIRMATION ORDER, FROM AND AFTER THE EPI EFFECTIVE DATE, ALL CLAIMS SHALL BE FULLY RELEASED, AND THE INTERESTS SHALL BE CANCELLED, AND THE DEBTOR’S LIABILITY WITH RESPECT THERETO SHALL BE EXTINGUISHED COMPLETELY, INCLUDING ANY LIABILITY OF THE KIND SPECIFIED UNDER SECTION 502(G) OF THE BANKRUPTCY CODE.

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN OR IN THE EPI CONFIRMATION ORDER, ALL ENTITIES SHALL BE PRECLUDED FROM ASSERTING AGAINST THE DEBTOR, THE DEBTOR’S ESTATE, THE EPI LIQUIDATING TRUST, THE EPI LIQUIDATING TRUSTEES, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND EACH OF THEIR ASSETS AND PROPERTIES, ANY OTHER CLAIMS OR INTERESTS BASED UPON ANY DOCUMENTS, INSTRUMENTS OR ANY ACT OR OMISSION, TRANSACTION OR


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OTHER ACTIVITY OF ANY KIND OR NATURE THAT OCCURRED BEFORE THE EPI EFFECTIVE DATE.

Notwithstanding anything to the contrary herein, on and after the EPI Effective Date, any and all membership or similar interests or units held by the Debtor in a subsidiary shall survive after the EPI Effective Date by virtue of such interests being left unimpaired to maintain the existing corporate structure of the Debtor.

9.7 Term of Injunctions or Stays. Unless otherwise provided in this EPI Plan or in the EPI Confirmation Order, all injunctions or stays in effect in the Chapter 11 Case pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the EPI Confirmation Date (excluding any injunctions or stays contained in this EPI Plan or the EPI Confirmation Order), shall remain in full force and effect until the EPI Effective Date. All injunctions or stays contained in this EPI Plan or the EPI Confirmation Order shall remain in full force and effect in accordance with their terms.

9.8 No Liability for Solicitation or Participation. As specified in section 1125(e) of the Bankruptcy Code, Persons that solicit acceptances or rejections of this EPI Plan, in good faith and in compliance with the applicable provisions of the Bankruptcy Code are not liable, on account of such solicitation or participation, for violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of this EPI Plan or the offer, issuance, sale or purchase of securities.

9.9 Compromises and Settlements. The Debtor expressly reserves the right (with Bankruptcy Court approval, following appropriate notice and opportunity for a hearing) to compromise and settle, up to and including the EPI Effective Date, Claims against the Debtor and claims that the Debtor may have against other Persons. After the EPI Effective Date, such right shall pass exclusively to the EPI Liquidating Trust, pursuant to this EPI Plan.

9.10 Objections to Claims and Interests. The failure by the Debtor to object to, or seek to estimate, any Claim or Interest for purposes of voting shall not be deemed a waiver of the right of the Debtor and the EPI Liquidating Trust to object to any Claim or Interest that is not expressly Allowed in this EPI Plan or that has not already been allowed by separate order of the Bankruptcy Court, or reexamine the Claim or Interest in whole or in part for any other purpose, including, but not limited to, any Distribution.

ARTICLE X CONDITIONS PRECEDENT

10.1 Conditions to Confirmation. The following are conditions precedent to confirmation of this EPI Plan that may be satisfied or waived in accordance with Section 9.3 of this EPI Plan:

(a) The Bankruptcy Court shall have approved the EPI Disclosure Statement with respect to the EPI Plan by an order in form and substance reasonably acceptable to the Debtor and BSP, in consultation with the Preferred Interest Representative;


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(b) The EPI Confirmation Order shall be in form and substance reasonably acceptable to the Debtor and BSP, in consultation with the Preferred Interest Representative; and

(c) The EPI Liquidating Trust Agreement and any exhibits thereto shall be in form and substance reasonably acceptable to the Debtor and BSP, in consultation with the Preferred Interest Representative.

10.2 Conditions to EPI Effective Date. The following are conditions precedent to the occurrence of the EPI Effective Date, each of which may be satisfied or waived in accordance with Section 10.3 of the EPI Plan:

(a) The Bankruptcy Court shall have approved the EPI Disclosure Statement with respect to the Plan in an order in form and substance reasonably acceptable to the Debtor and BSP, in consultation with the Preferred Interest Representative;

(b) The EPI Confirmation Order shall be in form and substance reasonably acceptable to the Debtor and BSP, in consultation with the Preferred Interest Representative, and shall have been entered by the Bankruptcy Court and such EPI Confirmation Order shall have become a Final Order (unless the Final Order requirement is waived by the Debtor and BSP, in consultation with the Preferred Interest Representative);

(c) No stay shall be in effect with respect to the EPI Confirmation Order; and

(d) The EPI Liquidating Trust Agreement has been executed by the EPI Liquidating Trustees (no later than thirty (30) days after entry of the EPI Confirmation Order).

10.3 Waiver of Conditions to Confirmation and EPI Effective Date. The conditions set forth in Sections 10.1 and 10.2 of the EPI Plan may be waived by the Debtor, with the consent of BSP and in consultation with the Preferred Interest Representative, without any notice to other parties in interest or the Bankruptcy Court and without a hearing.

ARTICLE XI RETENTION OF JURISDICTION

11.1 Pursuant to sections 105(a) and 1142 of the Bankruptcy Code, the Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of, and related to, the Chapter 11 Case and the EPI Plan, including, among other things, the following matters:

(a) to hear and determine pending motions for the assumption and assignment of or rejection of executory contracts or unexpired leases to which the Debtor is a party or with respect to which the Debtor may be liable, and to hear and determine the allowance of Claims resulting therefrom, including the amount of Cure, if any, required to be paid in connection with such assumption and assignment;

(b) to adjudicate any and all adversary proceedings, applications and contested matters that may be commenced or maintained pursuant to the Chapter 11 Case or this EPI Plan, including, without limitation, any actions to recover any transfers, Assets, properties or damages to which


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the Debtor may be entitled under applicable contract provisions, the provisions of this EPI Plan, or applicable provisions of the Bankruptcy Code or any other federal, state, or local laws;

(c) to ensure that Distributions to Holders of Allowed Claims and Allowed EPI Preferred Interests are accomplished as provided herein;

(d) to hear and determine any and all objections to the allowance or estimation of Disputed Claims, Disputed EPI Preferred Interests, and EPI Interests filed both before and after the EPI Confirmation Date, including any objections to the classification of any Claim or Interest, and to allow or disallow any Claim or Interest in whole or in part;

(e) to determine requests for the payment of Claims entitled to priority under section 507(a)(1) of the Bankruptcy Code, including compensation of and reimbursement of expenses of parties entitled thereto;

(f) to enter and implement such orders as may be appropriate if the EPI Confirmation Order is for any reason stayed, revoked, modified, or vacated;

(g) to hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of this EPI Plan, including disputes arising under agreements, documents, or instruments executed in connection with this EPI Plan or regarding the rights of the EPI Liquidating Trustees;

(h) to determine any other matters that may arise in connection with or relate to the EPI Plan, the EPI Disclosure Statement, the EPI Confirmation Order or any contract, instrument, release or other agreement created in connection with the EPI Plan or the EPI Disclosure Statement;

(i) to hear and determine all disputes with respect to the EPI Liquidating Trust Agreement;

(j) to issue orders in aid of execution, implementation, or consummation of the EPI Plan;

(k) to consider any modifications of the EPI Plan, to cure any defect or omission, or to reconcile any inconsistency in any order of the Bankruptcy Court, including, without limitation, the EPI Confirmation Order;

(l) to hear and determine all applications for compensation and reimbursement of Professional Claims under this EPI Plan or under sections 330, 331, 503(b), 1103, and 1129(a)(4) of the Bankruptcy Code;

(m) to hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;

(n) to hear any other matter not inconsistent with the Bankruptcy Code;


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(o) to hear and determine all disputes involving the existence, nature, or scope of the exculpation or releases provided for in this EPI Plan;

(p) to hear and determine any Claims of or against the Debtor;

(q) to hear and determine settlements and disputes with respect to any Liquidating Trust Asset;

(r) to enforce all orders previously entered by the Bankruptcy Court; and

(s) to enter a final decree closing the Chapter 11 Case.

Notwithstanding anything contained herein to the contrary and only to the extent the Bankruptcy Court has previously ordered otherwise, the Bankruptcy Court retains exclusive jurisdiction to hear and determine disputes concerning Claims, Interests, Third Party Claims, and any motions to compromise or settle such disputes. Despite the foregoing, if the Bankruptcy Court is determined not to have jurisdiction with respect to the foregoing, or if the EPI Liquidating Trustees choose to pursue any Third-Party Claim in another court of competent jurisdiction, the EPI Liquidating Trust and the EPI Liquidating Trustees will have authority to bring such action in any other court of competent jurisdiction.

ARTICLE XII MISCELLANEOUS PROVISIONS

12.1 Binding Effect. The EPI Plan shall be binding upon and inure to the benefit of the Debtor, the EPI Liquidating Trust, all present and former Holders, all present and former Holders of EPI Preferred Interests, all present and former Holders of EPI Interests, other parties in interest, and their respective successors and assigns.

12.2 Modification and Amendments. The Debtor may alter, amend, or modify the EPI Plan or any Exhibits thereto under section 1127(a) of the Bankruptcy Code at any time prior to the EPI Confirmation Hearing, with such alterations, amendments or modifications being in form and substance acceptable to BSP. After the EPI Confirmation Date and prior to substantial consummation of the EPI Plan as defined in section 1101(2) of the Bankruptcy Code, the EPI Liquidating Trust may, under section 1127(b) of the Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the EPI Plan, the EPI Liquidating Trust Agreement, the EPI Disclosure Statement, or the EPI Confirmation Order, and such matters as may be necessary to carry out the purposes and effects of the EPI Plan, so long as such proceedings do not materially adversely affect the treatment of Claims or Interests under the EPI Plan; provided, however, that prior notice of such proceedings shall be served in accordance with the Bankruptcy Rules or order of the Bankruptcy Court.

12.3 Withholding and Reporting Requirements. In connection with the EPI Plan and all instruments issued in connection therewith and distributions thereon, the Debtor shall comply with all withholding and reporting requirements imposed by any federal, state, local, or foreign taxing authority, and all distributions hereunder shall be subject to any such withholding and reporting requirements.


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12.4 Third-Party Claims/Causes of Action. Unless otherwise released under a prior Order of the Bankruptcy Court or under the EPI Plan, all Third-Party Claims and Causes of Action are expressly preserved for prosecution and enforcement by the EPI Liquidating Trust.

12.5 Revocation, Withdrawal or Non-Consummation Right to Revoke or Withdraw. The Debtor reserves the right to revoke or withdraw the EPI Plan at any time prior to the EPI Effective Date.

12.6 Severability of EPI Plan Provisions. If prior to entry of the EPI Confirmation Order any term or provision of this EPI Plan which does not govern the treatment of Claims or Interests or the conditions to the EPI Effective Date is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid and enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of this EPI Plan shall remain in full force and effect and will in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The EPI Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of this EPI Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms.

12.7 Trustee’s Fees. All fees due and owing under 28 U.S.C. §1930 shall be paid on the EPI Effective Date and thereafter, as due, until the Chapter 11 Case is closed, converted, or dismissed and final decreed, from the EPI Liquidating Trust Assets.

12.8 Notices. Pursuant to Bankruptcy Rule 2002 and any applicable local Bankruptcy Rules, notice of all post-Confirmation matters for which notice is required to be given shall be deemed sufficient if served upon the U.S. Trustee's Office, counsel to the Debtor, counsel to the EPI Liquidating Trust, and all persons on the Debtor’s Bankruptcy Rule 2002 service list. With the exception of the Debtor, the EPI Liquidating Trust, and the United States Trustee, any Person desiring to remain on the Debtor’s Bankruptcy Rule 2002 service list shall be required to file a request for continued service and to serve such request upon counsel to the EPI Liquidating Trust and the Debtor within thirty (30) days subsequent to the EPI Effective Date. Persons shall be notified of such continued notice requirements in the notice of entry of the EPI Confirmation Order. Persons who do not file a request for continued service shall be removed from the Debtor’s Bankruptcy Rule 2002 service list. Any notice required or permitted to be provided to the Debtor or the EPI Liquidating Trust under the EPI Plan shall be in writing and served by (a) certified mail, return receipt requested, (b) hand delivery, or (c) overnight delivery service, to be addressed as follows:

If to EPI: {TO COME}

If to the EPI Liquidating Trust: {TO COME}

12.9 Governing Law. Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise specifically stated, the


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laws of the State of Delaware shall govern the construction and implementation of the EPI Plan, any agreements, documents, and instruments executed in connection with the EPI Plan, and corporate governance matters.

12.10 Waiver and Estoppel. Except as provided in the Global Settlement Agreement and the Global Settlement Order, each Holder of a Claim or Interest, shall be deemed to have waived any right to assert that, by virtue of an agreement made with the Debtor and/or their counsel or any other party, its Claim or Interest should be allowed in a certain amount, in a certain priority, secured or not subordinated if such agreement was not disclosed in the EPI Plan, the EPI Disclosure Statement, or in papers filed with the Bankruptcy Court.

12.11 BSP Representative Party. To the extent that any consent of BSP is required pursuant to the terms of this EPI Plan, BSP shall designate one person (the “BSP Representative Person”) whom the EPI Liquidating Trustees shall contact. The name and contact information of the BSP Representative Person shall be as set forth in section 10.1 (Notice) of the EPI Liquidating Trust Agreement.

12.12 EPI Preferred Interest Holder Representative Party. In the circumstances set forth in this EPI Plan and the EPI Liquidating Trust Agreement that require consultation with the Holders of Allowed EPI Preferred Interests, the Holders of Allowed EPI Preferred Interests shall designate one Holder (the “Preferred Interest Representative”) with which the EPI Liquidating Trustees shall consult. The name and contact information of such entity person shall be as set forth in section 10.1 (Notice) of the EPI Liquidating Trust Agreement.

Dated: May 26, 2020 ELK PETROLEUM, INC.

By: /s/ Matthew Doheny Matthew Doheny, Co-Chief

Restructuring Officer of Elk Petroleum, Inc.

By: /s/ Charles Reardon

Charles Reardon, Co-Chief Restructuring Officer of Elk

Petroleum, Inc.


EXHIBIT 1

ALLOWED EPI PREFERRED INTERESTS



Documents

THIS IS NOT A SOLICITATION OF ACCEPTANCE OR REJECTION …strettodocs.s3.amazonaws.com/files/47512377-646e-4e52-bc4b-d2e… · 1.54 6EPI Confirmation Date ... 1.129 Statutory Fees