In Re Zais Investment Grade Limited VII

Case 11-20243-RTL
Doc 38
Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 1 of 30
Desc Main
Case 11-20243-RTL
Doc 38
Desc Main
Case 11-20243-RTL
Doc 38
Desc Main
TABLE OF CONTENTS Page ARTICLE I. 1.1. 1.2. 1.3. 1.4. 1.5. ARTICLE II. 2.1. 2.2. DEFINITIONS AND INTERPRETATION..........................................................1 Definitions .............................................................................................................1 Interpretation .........................................................................................................1 Application of Definitions and Rules of Construction Contained in the Bankruptcy Code ...................................................................................................1 Other Terms...........................................................................................................1 Appendices and Plan Documents ..........................................................................1 CLASSIFICATION OF CLAIMS AND OLD EQUITY INTERESTS................2 Administrative Claims and Tax Claims ................................................................2 Claims and Old Equity Interests............................................................................2
ARTICLE III. PROVISIONS FOR TREATMENT OF CLAIMS AND OLD EQUITY INTERESTS UNDER THE PLAN .......................................................................3 3.1. Claims and Old Equity Interests............................................................................3 (a) Class 1 Senior Indenture Administrative Expense Claims .......................3 (i) (ii) (b) Treatment ........................................................................................ 3 Time for Filing Indenture Administrative Expense Claims............ 3
Class 2 Indenture Priority Claims .............................................................3 (i) (ii) Treatment ........................................................................................ 3 Time for Filing Indenture Priority Claims ...................................... 3
(c) (d) (e) (f) (g) (h) (i) (j) (k)
Class 3 Senior Note Claims ......................................................................4 Class 4 Junior A-2 Note Claims................................................................4 Class 5 Junior A-3 Note Claims................................................................4 Class 6 Junior B-1 Note Claims................................................................4 Class 7 Junior B-2 Note Claims................................................................4 Class 8 Subordinated Claims ....................................................................4 Class 9 Income Note Claims.....................................................................5 Class 10 General Unsecured Claims.........................................................5 Class 11 Old Equity Interests....................................................................5
ARTICLE IV. PROVISIONS FOR TREATMENT OF UNCLASSIFIED CLAIMS UNDER THE PLAN .............................................................................................5
Case 11-20243-RTL
Doc 38
Desc Main
4.1. 4.2.
Unclassified Claims...............................................................................................5 Treatment of Administrative Claims .....................................................................5 (a) (b) (c) (d) (e) Time for Filing Administrative Claims........................................................5 Time for Filing Fee Claims..........................................................................6 Allowance of Administrative Claims/Fee Claims .......................................6 Payment of Allowed Administrative Claims ...............................................6 Allowance and Satisfaction of Claims for Fees and Expenses of the Plan Proponents ...........................................................................................6
4.3.
Treatment of Tax Claims.......................................................................................7 (a) (b) (c) Time for Filing Tax Claims .........................................................................7 Payment of Allowed Tax Claims.................................................................7 Injunction Prohibiting Holders of Tax Claims from Seeking Payment from Certain Third Parties ...........................................................................7
ARTICLE V. 5.1. 5.2.
MEANS FOR IMPLEMENTATION OF THE PLAN .........................................7 Operations Between the Confirmation Date and the Effective Date.....................7 NewCo...................................................................................................................7 (a) (b) (c) Formation.....................................................................................................7 Transfer of the Debtors Assets In Exchange For the New LP Interest.......8 General Partner and Investment Manager of NewCo. .................................8
5.3. 5.4. 5.5. 5.6. 5.7. 6.1. 6.2. 6.3. 6.4. 6.5. 6.6. 6.7. 6.8.
Post-Effective Date Corporate Governance ..........................................................8 Dissolution of the Debtor ......................................................................................8 Corporate Action ...................................................................................................8 Causes of Action....................................................................................................9 Investment of Funds Held by the Plan Administrator ...........................................9 Plan Distributions ..................................................................................................9 Timing of Plan Distributions ...............................................................................10 Sources of Cash for Plan Distributions ...............................................................10 Address for Delivery of Plan Distributions/Unclaimed Plan Distributions ........10 Time Bar to Cash Payments ................................................................................11 Manner of Payment under the Plan .....................................................................11 Denomination of Foreign Currency.....................................................................11 Fractional Plan Distributions...............................................................................11
ARTICLE VI. PLAN DISTRIBUTION PROVISIONS ...............................................................9
ii
Case 11-20243-RTL
Doc 38
Desc Main
6.9.
Termination of Indenture, Notes, Certificates and Instruments and Continued Transferability of the Senior Notes....................................................11
ARTICLE VII. PROCEDURES FOR RESOLVING AND TREATING CONTESTED CLAIMS ..............................................................................................................12 7.1. 7.2. 7.3. 7.4. 7.5. Objection Deadline..............................................................................................12 Prosecution of Contested Claims.........................................................................12 Claims Settlement................................................................................................12 Entitlement to Plan Distributions upon Allowance .............................................12 Estimation of Claims ...........................................................................................12
ARTICLE VIII. CONDITIONS PRECEDENT TO THE OCCURRENCE OF THE EFFECTIVE DATE ............................................................................................13 8.1. 8.2. 8.3. 9.1. 9.2. 9.3. ARTICLE X. 10.1. 10.2. 10.3. Conditions Precedent to the Occurrence of the Effective Date ...........................13 Waiver of Conditions ..........................................................................................13 Effect of Non-Occurrence of the Effective Date .................................................13 Powers and Duties ...............................................................................................14 Fees and Expenses of the Plan Administrator .....................................................14 Exculpation of the Plan Administrator ................................................................14 TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES ..............................................................................................................14 Assumption and Rejection of Executory Contracts and Unexpired Leases ........14 Cure .....................................................................................................................16 Claims Arising from Rejected Contracts.............................................................16
ARTICLE IX. THE PLAN ADMINISTRATOR........................................................................14
ARTICLE XI. RETENTION OF JURISDICTION.....................................................................17 ARTICLE XII. MISCELLANEOUS PROVISIONS ...................................................................17 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. 12.7. 12.8. 12.9. 12.10. 12.11. 12.12. 12.13. 12.14. 12.15. 12.16. 12.17. Substantial Consummation..................................................................................17 Payment of Statutory Fees...................................................................................17 Discharge of the Debtor.......................................................................................17 Indemnification Obligations................................................................................17 Releases by the Debtor ........................................................................................18 Exculpation..........................................................................................................18 Injunctions ...........................................................................................................18 Notices.................................................................................................................19 Headings ..............................................................................................................20 Governing Law....................................................................................................20 Expedited Determination.....................................................................................20 Exemption from Transfer Taxes..........................................................................20 Notice of Entry of Confirmation Order and Relevant Dates...............................21 Modification of the Plan......................................................................................21 Revocation of Plan ..............................................................................................21 Setoff Rights........................................................................................................21 Compliance with Tax Requirements ...................................................................21
iii
Case 11-20243-RTL
Doc 38
Desc Main
12.18. 12.19. 12.20. 12.21. 12.22.
Dissolution of the Creditors Committee (If Any) ..............................................21 Binding Effect .....................................................................................................22 Conflict between Plan, Disclosure Statement and Plan Documents ...................22 Severability..........................................................................................................22 No Admissions ....................................................................................................22
iv
Case 11-20243-RTL
Doc 38
Desc Main
EXHIBITS
GLOSSARY OF DEFINED TERMS............................................................................EXHIBIT A SCHEDULE OF ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED LEASES.........................................................................................................................EXHIBIT B SCHEDULE OF DESIGNATED ASSETS...................................................................EXHIBIT C FORM OF NEWCO LIMITED PARTNERSHIP AGREEMENT ...............................EXHIBIT D FORM OF NEWCO INVESTMENT MANAGEMENT AGREEMENT .................... EXHIBIT E
Case 11-20243-RTL
Doc 38
Desc Main
GRF Master Fund, L.P., Anchorage Illiquid Opportunities Offshore Master, L.P. and Anchorage Capital Master Offshore, Ltd. (collectively, the Plan Proponents), hereby propose the following Plan of Reorganization for the resolution of all outstanding Claims against and Old Equity Interests in ZAIS Investment Grade Limited VII (Zing VII), the Debtor and Debtor in Possession in the Chapter 11 Case that may be commenced in the Bankruptcy Court: ARTICLE I. DEFINITIONS AND INTERPRETATION 1.1. Definitions.
The capitalized terms used herein shall have the respective meanings set forth in the Glossary of Defined Terms attached hereto as Exhibit A. 1.2. Interpretation.
Unless otherwise specified, all section, article and exhibit references in the Plan are to the respective section in, article of or exhibit to the Plan, as the same may be amended, waived or modified from time to time. Words denoting the singular number shall include the plural number and vice versa, as appropriate and words denoting one gender shall include the other gender. The Disclosure Statement may be referred to for purposes of interpretation to the extent any term or provision of the Plan is determined by the Bankruptcy Court to be ambiguous. 1.3. Application of Definitions and Rules of Construction Contained in the Bankruptcy Code.
Words and terms defined in section 101 of the Bankruptcy Code shall have the same meanings when used in the Plan, unless a different definition is given in the Glossary of Defined Terms. The rules of construction contained in section 102 of the Bankruptcy Code shall apply to the construction of the Plan; provided, however, that or is disjunctive. The words include and including are without limitation. 1.4. Other Terms.
The words herein, hereof, hereto, hereunder, and others of similar import refer to the Plan as a whole and not to any particular section, subsection or clause contained in the Plan. 1.5. Appendices and Plan Documents.
All appendices, schedules and exhibits to the Plan and the Plan Documents are incorporated into the Plan by this reference and are a part of the Plan as if set forth in full herein. All Plan Documents shall be filed with the Bankruptcy Court not less than ten (10) days prior to the commencement of the Confirmation Hearing. Holders of Claims and Equity Interests may
Case 11-20243-RTL
Doc 38
Desc Main
obtain a copy of the Plan Documents, once filed, at the website maintained by the Bankruptcy Court at http://www.njb.uscourts.gov/ or by a written request sent to the following address:
Epiq Bankruptcy Solutions, LLC Zing VII 757 Third Avenue, Third Floor New York, NY 10017.
ARTICLE II. CLASSIFICATION OF CLAIMS AND OLD EQUITY INTERESTS For the purposes of organization, voting and all confirmation matters, except as otherwise provided herein, all Claims against and all Old Equity Interests in the Debtor shall be classified as set forth in this Article II. 2.1. Administrative Claims and Tax Claims.
As provided by section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and Tax Claims shall not be classified under the Plan, and shall instead be treated separately as unclassified Claims on the terms set forth in Article IV herein. 2.2. Claims and Old Equity Interests.
The classes of Claims against and Old Equity Interests in the Debtor shall be classified under the Plan as follows: Class 1 Senior Indenture Administrative Expense Claims. Class 1 shall consist of all Senior Indenture Administrative Expense Claims. Class 2 Indenture Priority Claims. Class 2 shall consist of all Indenture Priority Claims. Class 3 Senior Note Claims. Class 3 shall consist of all Senior Note Claims. Class 4 Junior A-2 Note Claims. Class 4 shall consist of all Junior A-2 Note Claims. Class 5 Junior A-3 Note Claims. Class 5 shall consist of all Junior A-3 Note Claims. Class 6 Junior B-1 Note Claims. Class 6 shall consist of all Junior B-1 Note Claims. Class 7 Junior B-2 Note Claims. Class 7 shall consist of all Junior B-2 Note Claims. Class 8 Subordinated Claims. Class 8 shall consist of all Subordinated Claims. Class 9 Income Note Claims. Class 9 shall consist of all Income Note Claims. Class 10 General Unsecured Claims. Class 10 shall consist of all General Unsecured Claims.
Case 11-20243-RTL
Doc 38
Desc Main
Class 11 Old Equity Interests. Class 11 shall consist of all Old Equity Interests. ARTICLE III. PROVISIONS FOR TREATMENT OF CLAIMS AND OLD EQUITY INTERESTS UNDER THE PLAN 3.1. Claims and Old Equity Interests.
The classes of Claims against the Debtor and Old Equity Interests in the Debtor shall be treated under the Plan as follows: (a) Class 1 Senior Indenture Administrative Expense Claims (i) Treatment
Senior Indenture Administrative Expense Claims are not impaired. Holders of Senior Indenture Administrative Expense Claims are therefore not entitled to vote on the Plan and are deemed to have accepted the Plan. On each Quarterly Plan Distribution Date through the Termination Date, each holder of an Allowed Senior Indenture Administrative Expense Claim shall receive Cash in the amount of such holders Allowed Senior Indenture Administrative Expense Claim. For the avoidance of doubt, in no event shall the aggregate amount of Allowed Senior Indenture Administrative Expense Claims exceed the Indenture Administrative Expense Cap on each Quarterly Plan Distribution Date. (ii) Time for Filing Indenture Administrative Expense Claims
Each holder of an Indenture Administrative Expense Claim must file with the Bankruptcy Court and serve on the Debtor, the Plan Proponents, the Creditors Committee (if any) and the Office of the United States Trustee, a proof of Claim evidencing its Indenture Administrative Expense Claim within forty-five (45) days after service or publication of the Notice of Confirmation or such other date established by the Bankruptcy Court in the Confirmation Order. Failure to file and serve such proof of Claim timely and properly shall result in the Indenture Administrative Expense Claim being forever barred from assertion against the Debtor and its Estate. (b) Class 2 Indenture Priority Claims (i) Treatment
Indenture Priority Claims are not impaired. Holders of Indenture Priority Claims are therefore not entitled to vote on the Plan and are deemed to have accepted the Plan. On the Plan Distribution Date, each holder of an Allowed Indenture Priority Claim shall receive the amount of such holders Allowed Indenture Priority Claim, including any interest to which such holder is legally, contractually or equitably entitled in one Cash payment. (ii) Time for Filing Indenture Priority Claims
Case 11-20243-RTL
Doc 38
Desc Main
Each holder of an Indenture Priority Claim must file with the Bankruptcy Court and serve on the Debtor, the Plan Proponents, the Creditors Committee (if any) and the Office of the United States Trustee, a proof of Claim evidencing its Indenture Priority Claim within forty-five (45) after service or publication of the Notice of Confirmation or such other date established by the Bankruptcy Court in the Confirmation Order. Failure to file and serve such proof of Claim timely and properly shall result in the Indenture Priority Claim being forever barred from assertion against the Debtor and its Estate. (c) Class 3 Senior Note Claims.
Senior Note Claims are impaired under the Plan, and holders of such Claims are entitled to vote to accept or reject the Plan. On each Senior Note Plan Distribution Date, each holder of an Allowed Senior Note Claim shall receive its Pro Rata Share of Available Cash. (d) Class 4 Junior A-2 Note Claims.
Junior A-2 Note Claims are impaired under the Plan. Holders of Junior A-2 Note Claims are not entitled to vote and are deemed to reject the Plan. Each holder of a Junior A-2 Note Claim shall not receive any property under the Plan. (e) Class 5 Junior A-3 Note Claims.
Junior A-3 Note Claims are impaired under the Plan. Holders of Junior A-3 Note Claims are not entitled to vote and are deemed to reject the Plan. Each holder of a Junior A-3 Note Claim shall not receive any property under the Plan. (f) Class 6 Junior B-1 Note Claims.
Junior B-1 Note Claims are impaired under the Plan. Holders of Junior B-1 Note Claims are not entitled to vote and are deemed to reject the Plan. Each holder of a Junior B-1 Note Claim shall not receive any property under the Plan. (g) Class 7 Junior B-2 Note Claims.
Junior B-2 Note Claims are impaired under the Plan. Holders of Junior B-2 Note Claims are not entitled to vote and are deemed to reject the Plan. Each holder of a Junior B-2 Note Claim shall not receive any property under the Plan. (h) Class 8 Subordinated Claims.
Subordinated Claims are impaired under the Plan. Holders of Subordinated Claims are not entitled to vote and are deemed to reject the Plan. Each holder of a Subordinated Claim shall not receive any property under the Plan.
Case 11-20243-RTL
Doc 38
Desc Main
(i)
Class 9 Income Note Claims.
Income Note Claims are impaired under the Plan. Holders of Income Note Claims are not entitled to vote and are deemed to reject the Plan. Each holder of an Income Note Claim shall not receive any property under the Plan. (j) Class 10 General Unsecured Claims.
General Unsecured Claims are impaired under the Plan. Holders of General Unsecured Claims are not entitled to vote and are deemed to reject the Plan. Each holder of a General Unsecured Claim shall not receive any property under the Plan. (k) Class 11 Old Equity Interests.
Old Equity Interests are impaired under the Plan. Holders of Old Equity Interests are not entitled to vote and are deemed to reject the Plan. Each holder of an Old Equity Interest shall not receive any property under the Plan. ARTICLE IV. PROVISIONS FOR TREATMENT OF UNCLASSIFIED CLAIMS UNDER THE PLAN 4.1. Unclassified Claims.
Administrative Claims and Tax Claims are treated in accordance with sections 1129(a)(9)(A) and 1129(a)(9)(C) of the Bankruptcy Code, respectively. Such Claims are not designated as classes of Claims for the purposes of this Plan or for the purposes of sections 1123, 1124, 1125, 1126 or 1129 of the Bankruptcy Code. 4.2. Treatment of Administrative Claims. All Administrative Claims shall be treated as follows: (a) Time for Filing Administrative Claims.
Each holder of an Administrative Claim, other than (i) a Fee Claim, (ii) a liability incurred and payable in the ordinary course of business by the Debtor (and not past due) or (iii) an Administrative Claim that has been Allowed on or before the Effective Date, must file with the Bankruptcy Court and serve on the Debtor, the Plan Proponents, the Creditors Committee (if any) and the Office of the United States Trustee, an Administrative Claim request pursuant to Local Rule 3003-2(b) within forty-five (45) days after service or publication of the Notice of Confirmation or such other date established by the Bankruptcy Court in the Confirmation Order. Such Administrative Claim request must include at a minimum (i) the name of the holder of the Administrative Claim, (ii) the amount of the Administrative Claim and (iii) the basis of the Administrative Claim. Failure to file and serve such request timely and properly shall result in the Administrative Claim being forever barred from assertion against the Debtor and its Estate.
Case 11-20243-RTL
Doc 38
Desc Main
(b)
Time for Filing Fee Claims.
Except as otherwise provided herein, each Professional Person who holds or asserts a Fee Claim shall be required to file with the Bankruptcy Court, and serve on all parties required to receive notice, a Fee Application within forty-five (45) days after service or publication of the Notice of Confirmation or such other date established by the Bankruptcy Court in the Confirmation Order. The failure to timely file and serve such Fee Application shall result in the Fee Claim being forever barred from assertion against the Debtor and its Estate. (c) Allowance of Administrative Claims/Fee Claims.
An Administrative Claim with respect to which a request has been properly filed and served pursuant to Section 4.2(a) herein shall become an Allowed Administrative Claim if no objection is filed within sixty (60) days after the later of (i) the Effective Date, (ii) the date of service of the applicable Administrative Claim request or (iii) such later date as may be (A) agreed to by the holder of such Administrative Claim or (B) approved by the Bankruptcy Court on motion of a party in interest, without notice or a hearing. If an objection is filed within such 60-day period (or any extension thereof), the Administrative Claim shall become an Allowed Administrative Claim only to the extent allowed by a Final Order. A Fee Claim in respect of which a Fee Application has been properly filed and served pursuant to Section 4.2(b) shall become an Allowed Administrative Claim only to the extent allowed by order of the Bankruptcy Court. (d) Payment of Allowed Administrative Claims.
On the Plan Distribution Date, each holder of an Allowed Administrative Claim shall receive (i) the amount of such holders Allowed Administrative Claim in one Cash payment or (ii) such other treatment as may be agreed upon in writing by the Plan Proponents or Plan Administrator and such holder; provided, that such agreed-upon treatment shall not provide a return to such holder having a present value as of the Effective Date in excess of such holders Allowed Administrative Claim; provided, further, that an Administrative Claim representing a liability incurred in the ordinary course of business of the Debtor may be paid at the Debtors election in the ordinary course of business. (e) Allowance and Satisfaction of Claims for Fees and Expenses of the Plan Proponents.
Notwithstanding anything contained herein to the contrary, on the Effective Date, the Plan Administrator shall reimburse the Plan Proponents for all reasonable fees and out-of-pocket expenses incurred by the Plan Proponents through the Effective Date, including, without limitation, fees and expenses of attorneys (including White & Case LLP and Fox Rothschild LLP), financial advisors (including Houlihan Lokey) and other professionals and agents (including Epiq Bankruptcy Solutions, LLC), in each case to the extent not reimbursed on or prior to the Effective Date, without the necessity of filing a fee application or any other application of any kind or nature with the Bankruptcy Court.
Case 11-20243-RTL
Doc 38
Desc Main
4.3.
Treatment of Tax Claims. All Tax Claims shall be treated as follows: (a) Time for Filing Tax Claims.
Each holder of a Tax Claim shall file with the Bankruptcy Court and serve on the Debtor, the Plan Proponents, the Creditors Committee (if any) and the Office of the United States Trustee, a proof of Claim evidencing such Tax Claim within forty-five (45) days after service or publication of the Notice of Confirmation or such other date established by the Bankruptcy Court in the Confirmation Order. Failure to file and serve such request timely and properly shall result in the Tax Claim being forever barred from assertion against the Debtor and its Estate. (b) Payment of Allowed Tax Claims.
On the Plan Distribution Date, each holder of an Allowed Tax Claim shall receive (i) the amount of such holders Allowed Tax Claim in one Cash payment, or (ii) such other treatment as may be agreed upon in writing by the Plan Proponents or Plan Administrator and such holder; provided, that such agreed-upon treatment shall not provide a return to such holder having a present value as of the Effective Date in excess of such holders Allowed Tax Claim. (c) Injunction Prohibiting Holders of Tax Claims from Seeking Payment from Certain Third Parties. The Confirmation Order shall enjoin any holder of an Allowed Tax Claim from commencing or continuing any action or proceeding against any responsible person, officer or director of the Debtor that otherwise would be liable to such holder for payment of a Tax Claim so long as the Debtor is in compliance with this Section. So long as the holder of an Allowed Tax Claim is enjoined from commencing or continuing any action or proceeding against any responsible person, officer or director under this Section or pursuant to the Confirmation Order, the statute of limitations for commencing or continuing any such action or proceeding shall be tolled. ARTICLE V. MEANS FOR IMPLEMENTATION OF THE PLAN 5.1. Operations Between the Confirmation Date and the Effective Date.
During the period from the Confirmation Date through and until the Effective Date, the Debtor shall continue to operate its business as Debtor in Possession, subject to the oversight of the Bankruptcy Court as provided in the Bankruptcy Code, the Bankruptcy Rules and all orders of the Bankruptcy Court that are then in full force and effect. 5.2. NewCo. (a) Formation.
Case 11-20243-RTL
Doc 38
Desc Main
On or prior to the Effective Date, the Plan Proponents shall form NewCo as an exempted limited partnership organized under the laws of the Cayman Islands. (b) Transfer of the Debtors Assets In Exchange For the New LP Interest.
On the Effective Date, the Debtor shall transfer title to the Designated Assets to NewCo free and clear of all liens, Claims, Causes of Action, interests, security interests and other encumbrances without further order of the Bankruptcy Court. In exchange for the transfer of the Designated Assets, NewCo shall transfer to the Debtor (i) on the Effective Date, the New LP Interest and (ii) on or after the Effective Date, Cash sufficient to fund the Debtors senior obligations under the Plan, but solely to the extent that the Debtors Cash on the Effective Date and projected Cash distributions from the New LP Interest are not sufficient to fund such obligations when due. (c) General Partner and Investment Manager of NewCo.
From and after the Effective Date, NewCos operation shall be managed by the General Partner. The General Partner shall delegate to the Investment Manager the authority to liquidate the Designated Assets and to distribute the corresponding proceeds pursuant to the Limited Partnership Agreement. 5.3. Post-Effective Date Corporate Governance.
On the Effective Date, the authority of the Debtors directors, officers and administrator shall be terminated to the extent permitted by applicable law. The Plan Administrator shall succeed to such powers as would have been applicable to the Debtors officers, directors and shareholders; provided that the Plan Administrator may continue to consult with any of the directors to the extent required to comply with applicable law or other contractual provisions of the Debtors or NewCos documents. 5.4. Dissolution of the Debtor.
On the Termination Date, the Debtor shall be deemed dissolved for all purposes to the fullest extent permitted under applicable Cayman law, and, to the extent necessary, the Plan Administrator may take any actions required under applicable law to accomplish the dissolution of the Debtor. 5.5. Corporate Action.
The entry of the Confirmation Order shall constitute authorization for NewCo and authorization and direction for the Debtor and their respective directors, officers, partners, stockholders and agents to take or cause to be taken all corporate actions necessary or appropriate to implement all provisions of, and to consummate, the Plan prior to, on and after the Effective Date and all such actions taken or caused to be taken shall be deemed to have been authorized and approved by the Bankruptcy Court without further approval, act or action under any applicable law, order, rule or regulation, including any action required to implement (a) the issuance of the New LP Interest, (b) the adoption of the NewCo Constituent Documents, (c) the incurrence of all obligations contemplated by the Plan and the making of Plan Distributions, 8
Case 11-20243-RTL
Doc 38
Desc Main
(d) the implementation of all settlements and compromises as set forth in or contemplated by the Plan and (e) the execution and deliverance of all agreements, documents, instruments, notices and certificates as are contemplated by the Plan. 5.6. Causes of Action.
Except as otherwise provided in the Plan, (a) all Causes of Action of the Debtor and its Estate shall, upon the occurrence of the Effective Date, be transferred to, and be vested in, NewCo and (b) the rights of NewCo to commence, prosecute or settle such Causes of Action, in its sole discretion, shall be preserved notwithstanding the occurrence of the Effective Date. No Person may rely on the absence of a specific reference in the Plan or the Disclosure Statement to any Cause of Action against them as any indication that NewCo will not pursue any and all available Causes of Action against them. NewCo expressly reserves all rights to prosecute any and all Causes of Action against any Person, except as otherwise provided herein. Unless any Causes of Action against a Person are expressly waived, relinquished, exculpated, released, compromised or settled herein or a Final Order, NewCo expressly reserves all Causes of Action for later adjudication, and, therefore, no preclusion doctrine, including without limitation, the doctrines of res judicata, issue preclusion, claim preclusion, estoppel (collateral, judicial, equitable or otherwise) or laches, shall apply to such Causes of Action upon or after the confirmation or consummation of the Plan. 5.7. Investment of Funds Held by the Plan Administrator.
The Plan Administrator may, but shall not be required to, invest any funds held by the Debtor or the Plan Administrator on behalf of the Debtor pending the distribution of such funds pursuant to the Plan in investments that are exempt from federal, state and local taxes. Further, the Plan Administrator may, but shall not be required to, invest any funds held by the Debtor or the Plan Administrator on behalf of the Debtor in interest-bearing accounts or certificates. ARTICLE VI. PLAN DISTRIBUTION PROVISIONS 6.1. Plan Distributions.
Except as otherwise set forth herein, all Plan Distributions shall be made on the Plan Distribution Date, each Quarterly Plan Distribution Date or each Senior Note Plan Distribution Date, as applicable, free and clear of all liens, Claims, Causes of Action, interests, security interests and other encumbrances. In the event a Plan Distribution shall be payable on a day other than a Business Day, such Plan Distribution shall instead be paid on the immediately succeeding Business Day, but shall be deemed to have been made on the date otherwise due. For federal income tax purposes, a Plan Distribution will be allocated first to the principal amount of a Claim and then, to the extent the Plan Distribution exceeds the principal amount of the Claim, to the portion of the Claim representing accrued but unpaid interest (if any). Except as otherwise provided herein, Plan Distributions shall be made to the holders of Allowed Claims as reflected in the registry of claims as of the Effective Date. The Plan Administrator and its agents shall have no obligation to recognize any transfer of a Claim after the Effective Date and shall be 9
Case 11-20243-RTL
Doc 38
Desc Main
permitted to treat DTC, which is the sole registered holder of the Senior Notes as the sole holder of a Senior Note Claim on and after the Effective Date. If necessary or convenient, the Plan Administrator may enter into, on behalf of the Debtor, a paying agency agreement to facilitate payments through DTC. 6.2. Timing of Plan Distributions.
Each Plan Distribution shall be made on a Plan Distribution Date, a Quarterly Plan Distribution Date or a Senior Note Plan Distribution Date, as applicable, and shall be deemed to have been timely made if made on such date or within ten (10) days thereafter. 6.3. Sources of Cash for Plan Distributions.
All Cash necessary for the Plan Administrator to make payments and Plan Distributions shall be obtained from the Debtors Cash on the Effective Date, Cash received as distributions on account of the New LP Interest and, if necessary, Cash received from NewCo under the Exit Facility. 6.4. Address for Delivery of Plan Distributions/Unclaimed Plan Distributions.
Subject to Bankruptcy Rule 9010, any Plan Distribution or delivery to a holder of an Allowed Claim other than an Allowed Senior Note Claim (distributions to which shall be made in accordance with Section 6.6 herein) shall be made at the address of such holder as set forth (a) in the Schedules, if any, or the Debtors records, (b) on the proof of Claim filed by such holder, (c) in any notice of assignment filed with the Bankruptcy Court with respect to such Claim pursuant to Bankruptcy Rule 3001(e) or (d) in any notice served by such holder giving details of a change of address. If any Plan Distribution is returned to the Plan Administrator as undeliverable, no Plan Distributions shall be made to such holder unless the Plan Administrator is notified of such holders then current address within ninety (90) days after such Plan Distribution was returned. After such date, if such notice was not provided, a holder shall have forfeited its right to such Plan Distribution, and the undeliverable Plan Distribution shall be treated as Available Cash and distributed in accordance with Section 3.1 herein.
10
Case 11-20243-RTL
Doc 38
Desc Main
6.5.
Time Bar to Cash Payments.
Checks issued in respect of Allowed Claims shall be null and void if not negotiated within one hundred and eighty (180) days after the date of issuance thereof. Requests for reissuance of any voided check shall be made directly to the Plan Administrator by the holder of the Allowed Claim to whom such check was originally issued. Any claim in respect of such a voided check shall be made within one hundred and eighty (180) days after the date of issuance of such check. If no request is made as provided in the preceding sentence, any claims in respect of such voided check shall be discharged and forever barred and such unclaimed Plan Distribution shall be treated as Available Cash and distributed in accordance with Section 3.1 herein. 6.6. Manner of Payment under the Plan.
Unless the Person receiving a Plan Distribution agrees otherwise, any Plan Distribution to be made in Cash under the Plan shall be made at the option of the Plan Administrator by check drawn on a domestic bank or by wire transfer from a domestic bank. Cash payments to foreign creditors may be, in addition to the foregoing, made at the option of the Plan Administrator in such funds and by such means as are necessary or customary in a particular foreign jurisdiction. The Plan Administrator shall cause all Plan Distributions in respect of the Senior Note Claims to be paid to DTC for payment to the Senior Noteholders similar to the manner in which the Debtor previously made payments on the Senior Notes. 6.7. Denomination of Foreign Currency.
Where a Claim has been denominated in foreign currency on a proof of Claim, the Allowed amount of such Claim shall be calculated in legal tender of the United States based upon the conversion rate in place as of the Petition Date and in accordance with section 502(b) of the Bankruptcy Code. 6.8. Fractional Plan Distributions.
Notwithstanding anything to the contrary contained herein, no Plan Distributions of fractions of dollars will be made. Fractions of dollars shall be rounded to the nearest whole dollar (with any amount equal to or less than one-half dollar to be rounded down). 6.9. Termination of Indenture, Notes, Certificates and Instruments and Continued Transferability of the Senior Notes. On the Effective Date, the Indenture and all certificates, instruments and notes governed by the Indenture shall be automatically terminated, and instead holders of such certificates, instruments and notes shall be limited solely to the rights granted under the Plan; provided, however, that notwithstanding entry of the Confirmation Order or the occurrence of the Effective Date, (i) any certificates, instruments or notes governed by the Indenture shall continue to represent the right, if any, to participate in Plan Distributions and (ii) the Senior Notes shall continue in effect solely for purposes of allowing holders of Senior Note Claims to receive Plan Distributions as though the Senior Notes remained outstanding, subject to the terms of (a) section 2.12 of the Indenture which restricts ownership and transferability and specifies the enforcement
11
Case 11-20243-RTL
Doc 38
Desc Main
rights of the Debtor as described in section VI.D.8 of the Disclosure Statement and (b) section 2.2 of the Indenture which designates DTC as the registered holder of the Senior Notes held in global form to receive payment on behalf of the Senior Noteholders, both of which are incorporated by reference into the Plan. On the final Senior Note Plan Distribution Date, the registered holder of the Senior Notes shall surrender the Senior Notes in exchange for the final Plan Distributions made on account of the Senior Notes. ARTICLE VII. PROCEDURES FOR RESOLVING AND TREATING CONTESTED CLAIMS 7.1. Objection Deadline.
Except as otherwise provided in the Plan, as soon as practicable, but in no event later than one hundred and twenty (120) days after the Confirmation Date (subject to being extended by the order of the Bankruptcy Court upon motion of the Plan Administrator without notice or a hearing), objections to Claims shall be filed with the Bankruptcy Court and served upon the holders of each of the Claims to which objections are made. 7.2. Prosecution of Contested Claims.
The Plan Administrator may object to the allowance of Claims with the Bankruptcy Court with respect to which liability is disputed in whole or in part. All objections that are filed and prosecuted as provided herein shall be litigated to Final Order or compromised and settled in accordance with Section 7.3 herein. 7.3. Claims Settlement.
Notwithstanding any requirements that may be imposed pursuant to Bankruptcy Rule 9019, from and after the Effective Date, the Plan Administrator shall have authority to settle or compromise all Claims and Causes of Action against the Debtor without further review or approval of the Bankruptcy Court. 7.4. Entitlement to Plan Distributions upon Allowance.
Notwithstanding any other provision of the Plan, no Plan Distribution shall be made with respect to any Claim to the extent it is a Contested Claim, unless and until such Contested Claim becomes an Allowed Claim, subject to the setoff rights provided in Section 12.16 herein. When a Claim that is not an Allowed Claim as of the Effective Date becomes an Allowed Claim (regardless of when), the holder of such Allowed Claim shall thereupon become entitled to receive Plan Distributions in respect of such Claim in the same manner as if such Claim had been an Allowed Claim on the Effective Date. 7.5. Estimation of Claims.
The Plan Proponents or the Plan Administrator may, at any time, request that the Bankruptcy Court estimate any Contested Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether an objection has been filed with respect to such Claim or whether the 12
Case 11-20243-RTL
Doc 38
Desc Main
Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including during the pendency of any appeal relating to any such objection. In the event that the Bankruptcy Court estimates any Contested Claim, that estimated amount will constitute the Allowed amount of such Claim for all purposes under the Plan. All of the objection, estimation, settlement and resolution procedures set forth in the Plan are cumulative and not necessarily exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court. ARTICLE VIII. CONDITIONS PRECEDENT TO THE OCCURRENCE OF THE EFFECTIVE DATE 8.1. Conditions Precedent to the Occurrence of the Effective Date. The following are conditions precedent to the occurrence of the Effective Date: (a) the Confirmation Order shall have been entered by the Bankruptcy Court, be in full force and effect and not be subject to any stay or injunction; (b) all necessary consents, authorizations and approvals shall have been given for the transfers of property and the payments provided for or contemplated by the Plan; (c) the Confirmation Order, the Plan, the Plan Documents and all other definitive documentation shall be in form and substance satisfactory to the Plan Proponents; (d) all actions, documents and agreements necessary to implement the Plan and the transactions contemplated by the Plan shall have been effected or executed; and (e) the New LP Interest to be issued by NewCo under the Plan shall have been duly authorized and, upon issuance, shall be validly issued and outstanding. 8.2. Waiver of Conditions.
The Plan Proponents may waive any one or more of the conditions set forth in Section 8.1 (other than Section 8.1(a)) without notice or order of the Bankruptcy Court and without notice to other parties in interest. 8.3. Effect of Non-Occurrence of the Effective Date.
If the Effective Date shall not occur, the Plan shall be null and void and nothing contained in the Plan shall: (a) constitute a waiver or release of any Claims against or Old Equity Interests in the Debtor; (b) prejudice in any manner the rights of the Debtor or the Plan Proponents; or (c) constitute an admission, acknowledgement, offer or undertaking by the Debtor or the Plan Proponents. ARTICLE IX.
13
Case 11-20243-RTL
Doc 38
Desc Main
THE PLAN ADMINISTRATOR 9.1. Powers and Duties.
Pursuant to the terms and provisions of the Plan, the Plan Administrator shall be empowered to (a) take all steps and execute all instruments and documents necessary to make Plan Distributions to holders of Allowed Claims; (b) comply with the Plan and the obligations thereunder; (c) employ, retain or replace professionals to represent it with respect to its responsibilities; (d) object to Claims as specified in Article VII and prosecute such objections; (e) compromise and settle any issue or dispute regarding the amount, validity, priority, treatment or Allowance of any Claim as provided in Article VII; (f) make any required periodic reports; and (g) exercise such other powers as may be vested in the Plan Administrator pursuant to the Plan, the Plan Documents or an order of the Bankruptcy Court. 9.2. Fees and Expenses of the Plan Administrator.
Notwithstanding anything contained herein to the contrary, the amount of any reasonable fees and expenses incurred (or to be incurred) by the Plan Administrator (including, but not limited to, taxes) shall be paid when due prior to any Plan Distributions in respect of Senior Indenture Administrative Expense Claims, Indenture Priority Claims or Senior Note Claims. Professional fees and expenses incurred by the Plan Administrator from and after the Effective Date in connection with the effectuation of the Plan shall be paid in the ordinary course of business. Any dispute regarding compensation shall be resolved by agreement of the parties, or if the parties are unable to agree, as determined by the Bankruptcy Court. 9.3. Exculpation of the Plan Administrator.
Except as otherwise provided in this Section, the Plan Administrator, together with its officers, directors, employees, members, managers, professionals, affiliates, partners, agents and representatives, are exculpated pursuant to the Plan by all Persons, holders of Claims and Old Equity Interests and all other parties in interest, from any and all Causes of Action arising out of the exercise of the powers and duties conferred upon the Plan Administrator by the Plan, any Final Order of the Bankruptcy Court entered pursuant to or in furtherance of the Plan or applicable law, except solely for actions or omissions arising out of the Plan Administrators willful misconduct or gross negligence. Nothing contained in this Section shall preclude or impair any holder of an Allowed Claim from bringing an action in the Bankruptcy Court against the Debtor or the Plan Administrator to compel the making of Plan Distributions contemplated by the Plan on account of such Claim. ARTICLE X. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 10.1. Assumption and Rejection of Executory Contracts and Unexpired Leases.
(a) All executory contracts and unexpired leases of the Debtor shall be rejected pursuant to the provisions of section 365 of the Bankruptcy Code effective as of and subject to
14
Case 11-20243-RTL
Doc 38
Desc Main
the occurrence of the Effective Date, unless another date is specified in the Plan except: (i) the Designated Assets to the extent such Designated Assets are executory; (ii) contracts and leases listed on a Schedule of Assumed Executory Contracts and Unexpired Leases to be filed by the Plan Proponents with the Bankruptcy Court fifteen (15) Business Days prior to commencement of the Confirmation Hearing as Exhibit B hereto; (iii) any executory contract or unexpired lease that is the subject of a dispute over the amount or manner of cure pursuant to the next section hereof and for which the Debtor or Plan Administrator make a motion to reject such contract or lease based upon the existence of such dispute filed at any time; and (iv) any agreement, obligation, security interest, transaction or similar undertaking that the Plan Proponents believe is not executory or a lease that is later determined by the Bankruptcy Court to be an executory contract or unexpired lease that is subject to assumption or rejection under section 365 of the Bankruptcy Code. Any order entered post-confirmation by the Bankruptcy Court, after notice and a hearing, authorizing the rejection of an executory contract or unexpired lease shall cause such rejection to be a prepetition breach under sections 365(g) and 502(g) of the Bankruptcy Code, as if such relief was granted and such order was entered preconfirmation. The Plan Proponents reserve the right to amend the Schedule of Assumed Executory Contracts and Unexpired Leases prior to the entry of the Confirmation Order. Each executory contract and unexpired lease to be assumed by the Debtor shall include modifications, amendments, supplements, restatements or other similar agreements made directly or indirectly by any agreement, instrument or other document that affects such executory contract or unexpired lease, without regard to whether such agreement, instrument or other document is listed on the Schedule of Assumed Executory Contracts and Unexpired Leases. (b) The inclusion of a contract, lease or other agreement in Section 10.1(a) or on the Schedule of Assumed Executory Contracts and Unexpired Leases shall not constitute an admission by the Plan Proponents as to the characterization of whether any such included contract, lease or other agreement is, or is not, an executory contract or unexpired lease or whether any claimants under any such contract, lease or other agreement are time-barred from asserting Claims against the Debtor. The Plan Proponents reserve all rights with respect to the characterization of any such agreements. (c) The Plan shall constitute a motion to reject the Debtors executory contracts and unexpired leases in accordance with this Section 10.1, and the Debtor shall have no liability thereunder except as is specifically provided in the Plan. Entry of the Confirmation Order by the Clerk of the Bankruptcy Court shall constitute approval of such rejections pursuant to section 365(a) of the Bankruptcy Code, subject to the occurrence of the Effective Date, and a finding by the Bankruptcy Court that each such rejected agreement, executory contract or unexpired lease is burdensome and that the rejection thereof is in the best interests of the Debtor and its Estate. (d) The Plan shall constitute a motion to assume and assign to NewCo, such executory contracts and unexpired leases as set forth in the Schedule of Assumed Executory Contracts and Unexpired Leases. Entry of the Confirmation Order by the Clerk of the Bankruptcy Court shall constitute approval of such assumption and assignment pursuant to sections 365(a), (b) and (f) of the Bankruptcy Code, and a finding by the Bankruptcy Court that the requirements of section 365(f) of the Bankruptcy Code have been satisfied. Any non-Debtor counterparty to an agreement listed on the Schedule of Assumed Executory Contracts and Unexpired Leases or any other contract or unexpired lease otherwise designated as being assumed or assumed and assigned in Section 10.1(a) who disputes the assignment of an 15
Case 11-20243-RTL
Doc 38
Desc Main
executory contract or unexpired lease must file with the Bankruptcy Court, and serve upon the Plan Proponents, a written objection to the assumption and assignment, which objection shall set forth the basis for the dispute by no later than five (5) Business Days prior to the commencement of the Confirmation Hearing. The failure to timely object shall be deemed a waiver of any and all objections to the assumption and assignment of executory contracts and leases as set forth in the Schedule of Assumed Executory Contracts and Unexpired Leases or as otherwise designated as being assumed or assumed and assigned in Section 10.1(a). 10.2. Cure.
At the election of the Plan Proponents, any monetary defaults under each executory contract and unexpired lease to be assumed under the Plan shall be satisfied pursuant to section 365(b)(1) of the Bankruptcy Code: (a) by payment of the default amount in Cash on the Effective Date or as soon thereafter as practicable; or (b) on such other terms as agreed upon in writing by the Plan Proponents or the Plan Administrator and the counter-party to such executory contract or unexpired lease. In the event of a dispute regarding: (i) the amount of any cure payments; (ii) the ability to provide adequate assurance of future performance under the contract or lease to be assumed or assumed and assigned; or (iii) any other matter pertaining to assumption or assumption and assignment, the cure payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order resolving the dispute and approving assumption or assignment, as applicable. The Schedule of Assumed Executory Contracts and Unexpired Leases shall set forth the Debtors cure obligations for each agreement for which cure obligations must be satisfied as a condition to the assumption and assignment of such agreement. Any non-Debtor counterparty to an agreement listed on the Schedule of Assumed Executory Contracts and Unexpired Leases who disputes the scheduled cure obligation (or objects to the omission of a scheduled cure obligation) must file with the Bankruptcy Court, and serve upon the Plan Proponents, a written objection to the cure obligation, which objection shall set forth the basis for the dispute, the alleged correct cure obligation, and any other objection related to the assumption or assumption and assignment of the relevant agreement by no later than five (5) Business Days prior to the commencement of the Confirmation Hearing. If a nonDebtor counterparty fails to file and serve an objection which complies with the foregoing, the cure obligation set forth on the Schedule of Assumed Executory Contracts and Unexpired Leases shall be binding on the non-Debtor counterparty, and the non-Debtor counterparty shall be deemed to have waived any and all objections to the assumption or assumption and assignment of the relevant agreement as proposed by the Plan Proponents. 10.3. Claims Arising from Rejected Contracts.
Rejection Damage Claims must be filed with the Bankruptcy Court and served on the Debtor, the Plan Proponents, the Creditors Committee (if any) and the Office of the United States Trustee within forty-five (45) days after service or publication of the Notice of Confirmation or such other date established by the Bankruptcy Court in the Confirmation Order. Failure to properly file any such Rejection Damage Claim pursuant to this Section 10.3 shall result in the Rejection Damage Claim being forever barred and discharged.
16
Case 11-20243-RTL
Doc 38
Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 24 of 30 ARTICLE XI.
Desc Main
RETENTION OF JURISDICTION On and after the Effective Date, pursuant to sections 105(a) and 1142 of the Bankruptcy Code, the Bankruptcy Court shall retain jurisdiction over all matters arising in, arising under and related to the Chapter 11 Case to the fullest extent permitted by law. ARTICLE XII. MISCELLANEOUS PROVISIONS 12.1. Substantial Consummation.
On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code. 12.2. Payment of Statutory Fees.
All fees payable pursuant to section 1930 of title 28 of the United States Code, as determined by the Bankruptcy Court at the Confirmation Hearing, shall be paid by the Debtor on or before the Effective Date. 12.3. Discharge of the Debtor.
Except as expressly provided in the Plan, upon the Termination Date, (a) each holder (as well as any trustees and agents on behalf of each holder) of a Claim against or Old Equity Interest in a Debtor shall be deemed to have forever waived, released and discharged the Debtor, to the fullest extent permitted by section 1141 of the Bankruptcy Code, of and from any and all Claims, Old Equity Interests, rights and liabilities that arose prior to the Effective Date and (b) all such holders shall be forever precluded and enjoined, pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting any discharged Claim against or terminated Old Equity Interest in the Debtor. 12.4. Indemnification Obligations.
Any obligations of the Debtor to indemnify and hold harmless its current and former directors or any other parties, whether arising under the Debtors constituent documents, contract, law or equity, shall be rejected upon the Effective Date with the same effect as though such obligations constituted executory contracts that are rejected under section 365 of the Bankruptcy Code. On the Effective Date, the Debtor shall indemnify all of the Debtors directors and officers who acted in such capacity on the Petition Date and continuously through the Effective Date for any liability arising from an act, omission, transaction, event or other occurrence taking place on or prior to the Effective Date in connection with (a) the filing of the involuntary Chapter 11 petition, (b) the preparation and prosecution of the Chapter 11 Case, (c) the preparation, negotiation, filing and pursuit of approval of this Disclosure Statement, (d) the preparation, negotiation, solicitation, filing and pursuit of the confirmation of the Plan, (e) the consummation of the Plan or (f) the implementation or administration of the Plan or the 17
Case 11-20243-RTL
Doc 38
Desc Main
property to be distributed under the Plan to the fullest extent permitted by law except for (i) any willful misconduct or gross negligence as determined by a Final Order and (ii) any costs or liabilities incurred in opposing any action described in subsections (a) (f) above; provided, however, that indemnification for actual out of pocket expenses incurred prior to the Petition Date shall be limited to $250,000 in the aggregate. 12.5. Releases by the Debtor.
As of the Effective Date, for good and valuable consideration, the Debtor in its individual capacity and as Debtor in Possession will be deemed to release and forever waive and discharge all Causes of Action that are based in whole or part on any act, omission, transaction, event or other occurrence taking place on or prior to the Effective Date in any way relating to the Debtor, NewCo, the Chapter 11 Case, the Plan or the Disclosure Statement, and that could have been asserted by or on behalf of the Debtor or its Estate against (a) the Debtors officers, directors, administrator, agents and representatives who were acting in their capacity as such on both the Petition Date and the Effective Date, in their respective capacities as such, (b) the Trustee and its agents, attorneys and advisors, in their respective capacities as such, (c) the Plan Proponent Parties and their present and former officers, directors and employees, in their respective capacities as such and (d) each of the foregoings respective successors and assigns and each of their respective agents, attorneys, advisors, accountants, investment bankers, bankruptcy and restructuring advisors and financial advisors, in their respective capacities as such; except, that nothing in this Section shall be construed to release any party or entity from (i) willful misconduct or gross negligence as determined by a Final Order or (ii) any objections by the Debtor or the Plan Administrator to Claims filed by such party or entity against the Debtor or its Estate. 12.6. Exculpation.
None of the Exculpated Parties shall have or incur any liability to any Person for any act or omission in connection with, or arising out of, (a) the filing of the involuntary Chapter 11 petition, (b) the preparation and prosecution of the Chapter 11 Case, (c) the preparation, negotiation, filing and pursuit of approval of the Disclosure Statement, (d) the preparation, negotiation, solicitation, filing and pursuit of the confirmation of the Plan, (e) the consummation of the Plan or (f) the implementation or administration of the Plan or the property to be distributed under the Plan, except solely for any act or omission arising out of such Exculpated Partys willful misconduct or gross negligence as finally determined by the Bankruptcy Court, and, in all respects each Exculpated Party shall be entitled to rely upon the advice of counsel and all information provided by other Exculpated Parties herein without any duty to investigate the veracity or accuracy of such information with respect to their duties and responsibilities under the Plan. 12.7. Injunctions.
The Confirmation Order will contain an injunction permanently enjoining the commencement or prosecution of certain actions, which injunction shall provide, inter alia:
18
Case 11-20243-RTL
Doc 38
Desc Main
(a) On the Effective Date and except as otherwise provided in the Plan or the Confirmation Order, all Persons who have been, are, or may be holders of Claims against or Old Equity Interests in the Debtor shall be permanently enjoined from taking any of the following actions against or affecting (i) the Debtor, (ii) the Estate, (iii) NewCo, (iv) the Trustee, (v) the Plan Proponent Parties, (vi) the Plan Administrator, (vii) any of the aforementioned parties current or former officers, directors, administrators, employees, members, managers, professionals, affiliates, advisors, partners and agents and (viii) the successors and assigns of the parties listed in (i) (vii), or their respective assets and property, with respect to such Claims or Old Equity Interests (other than actions brought to enforce any rights or obligations under the Plan): (i) commencing, conducting or continuing in any manner, directly or indirectly, any suit, action or other proceeding of any kind (including, without limitation, all suits, actions and proceedings that are pending as of the Effective Date, which must be withdrawn or dismissed with prejudice); (ii) enforcing, levying, attaching, collecting or otherwise recovering by any manner or means, whether directly or indirectly, any judgment, award, decree or order; (iii) creating, perfecting or otherwise enforcing in any manner, directly or indirectly, any encumbrance; and (iv) asserting any setoff, right of subrogation or recoupment of any kind; provided, that any defenses, offsets or counterclaims which the Debtor, NewCo or the Plan Administrator may have or assert in respect of the above referenced Claims are fully preserved in accordance with Section 5.6; (b) All Persons are permanently enjoined from commencing or continuing in any manner any Cause of Action, whether directly, derivatively, on account of or respecting any Cause of Action which has been released pursuant to the Plan, including pursuant to Sections 3.1, 4.2, 4.3, 10.3, 12.3, 12.4, 12.5 and 12.6; (c) All holders of a Claim against or an Old Equity Interest in the Debtor, or representative thereof, are permanently enjoined from pursuing any Cause of Action against any holder of a Claim for receiving or retaining Plan Distributions as provided for by the Plan; and (d) Notwithstanding anything to the contrary contained in the foregoing, nothing in this Section 12.7 shall preclude or impair any holder of an Allowed Claim or Allowed Old Equity Interest from bringing an action in the Bankruptcy Court against the Debtor or Plan Administrator to compel the making of Plan Distributions contemplated by the Plan on account of such Claim or Old Equity Interest. 12.8. Notices.
Any notices, requests and demands to or upon the Plan Proponents, in order to be effective, shall be in writing (including, without express or implied limitation, by facsimile
19
Case 11-20243-RTL
Doc 38
Desc Main
transmission), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows: Anchorage Capital Group, L.L.C. 610 Broadway, 6th Floor New York, New York 10012 Attention: Yale Baron With copy to: Anne-Marie Kim, Esq. and White & Case LLP Attention: Zing VII Restructuring 1155 Avenue of the Americas New York, New York 10036 12.9. Headings.
The headings used in the Plan and the Disclosure Statement are inserted for convenience only, and neither constitutes a portion of the Plan nor in any manner affects the construction of the provisions of the Plan. 12.10. Governing Law. Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and the Bankruptcy Rules), the laws of the State of New York, without giving effect to the conflicts of laws principles thereof, shall govern the construction of the Plan and any agreements, documents and instruments executed in connection with the Plan, except as otherwise expressly provided in such instruments, agreements or documents. 12.11. Expedited Determination. The Plan Administrator is hereby authorized to file a request for expedited determination under section 505(b) of the Bankruptcy Code for all tax returns filed with respect to the Debtor. 12.12. Exemption from Transfer Taxes. Pursuant to section 1146 of the Bankruptcy Code, the issuance, transfer or exchange of notes or equity securities under the Plan, the creation of any mortgage, deed of trust, lien, pledge or other security interest, the making or assignment of any lease or sublease, or the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with the Plan, shall not be subject to any stamp, real estate transfer, mortgage recording or other similar tax.
20
Case 11-20243-RTL
Doc 38
Desc Main
12.13. Notice of Entry of Confirmation Order and Relevant Dates. Promptly upon entry of the Confirmation Order, the Plan Proponents shall publish as directed by the Bankruptcy Court and serve on all known parties in interest and holders of Claims and Old Equity Interests, the Notice of Confirmation and notice of all relevant deadlines and dates under the Plan, including, but not limited to, the respective deadlines for filing Administrative Claims requests, Rejection Damages Claims or proofs of Claim evidencing Senior Indenture Administrative Expense Claims and Indenture Priority Claims. 12.14. Modification of the Plan. The Plan Proponents may modify the Plan in accordance with section 1127 of the Bankruptcy Code. Additionally, prior to the Effective Date, the Plan Proponents may make appropriate technical adjustments and modifications to the Plan without further order or approval of the Bankruptcy Court, provided that such technical adjustments and modifications do not adversely affect in a material way the treatment of holders of Claims or Old Equity Interests. 12.15. Revocation of Plan. The Plan Proponents reserve the right to revoke and withdraw the Plan and/or to adjourn the Confirmation Hearing prior to the occurrence of the Effective Date. 12.16. Setoff Rights. In the event that the Debtor has a Claim of any nature whatsoever against the holder of a Claim against the Debtor, then the Debtor may, but is not required to, setoff against the Claim (and any payments or other Plan Distributions to be made in respect of such Claim hereunder) the Debtors Claim against such holder, subject to the provisions of sections 553, 556 and 560 of the Bankruptcy Code. Neither the failure to setoff nor the allowance of any Claim under the Plan shall constitute a waiver or release of any Claims that the Debtor may have against the holder of any Claim. 12.17. Compliance with Tax Requirements. In connection with the Plan, the Debtor and the Plan Administrator, as applicable, shall comply with all withholding and reporting requirements imposed by federal, state, local and foreign taxing authorities, and all Plan Distributions hereunder shall be subject to such withholding and reporting requirements. Notwithstanding the above, each holder of an Allowed Claim that is to receive a Plan Distribution shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any government unit, including income, withholding and other tax obligations, on account of such Plan Distribution. The Plan Administrator has the right, but not the obligation, to not make a Plan Distribution until such holder has made arrangements satisfactory to the Plan Administrator for payment of any such tax obligations. 12.18. Dissolution of the Creditors Committee (If Any). Upon the Effective Date, the Creditors Committee (if any) shall dissolve automatically, whereupon its members, professionals and agents shall be released from any further duties and 21
Case 11-20243-RTL
Doc 38
Desc Main
responsibilities in the Chapter 11 Case and under the Bankruptcy Code, except with respect to (a) applications for Fee Claims or reimbursement of expenses incurred as a member of the Creditors Committee and (b) any motions or other actions seeking enforcement or implementation of the provisions of the Plan or the Confirmation Order or pending appeals of orders entered in the Chapter 11 Cases. 12.19. Binding Effect. The Plan shall be binding upon NewCo, the Debtor, the holders of all Claims and Old Equity Interests, parties in interest, Persons and their respective successors and assigns. The rights, benefits and obligations of any Person named or referred to in the Plan shall be binding on, and shall inure to the benefit of, any heir, executor, administrator, successor or assign of such Person. 12.20. Conflict between Plan, Disclosure Statement and Plan Documents. (a) Except as provided in Section 12.20(b) below, in the event of any conflict between the terms and provisions in the Plan and the terms and provisions in the Disclosure Statement, the terms and provisions of the Plan shall control and govern. (b) In the event of any conflict between the terms and provisions in the Plan and the terms and provisions in the Plan Documents, the terms and provisions of the Plan Documents shall control and govern. 12.21. Severability. IN THE EVENT THE BANKRUPTCY COURT DETERMINES THAT ANY PROVISION OF THE PLAN IS UNENFORCEABLE EITHER ON ITS FACE OR AS APPLIED TO ANY CLAIM OR OLD EQUITY INTEREST OR TRANSACTION, THE PLAN PROPONENTS MAY MODIFY THE PLAN IN ACCORDANCE WITH AND SUBJECT TO SECTION 12.14 HEREIN SO THAT SUCH PROVISION SHALL NOT BE APPLICABLE TO THE HOLDER OF ANY SUCH CLAIM OR OLD EQUITY INTEREST OR TRANSACTION. SUCH A DETERMINATION OF UNENFORCEABILITY SHALL NOT (A) LIMIT OR AFFECT THE ENFORCEABILITY AND OPERATIVE EFFECT OF ANY OTHER PROVISION OF THE PLAN OR (B) REQUIRE THE RESOLICITATION OF ANY ACCEPTANCE OR REJECTION OF THE PLAN. 12.22. No Admissions. None of the filing of the Plan or the taking by the Debtor or the Plan Proponents of any action with respect to the Plan or any statement or provision contained herein shall be or be deemed to be an admission by any such party against interest, or be or be deemed to be a waiver of any rights, claims or remedies that such parties may have, and all such rights and remedies are and shall be specifically reserved. In the event the Plan is not confirmed and the Confirmation Order is not entered, the Plan, the Disclosure Statement and the Plan Documents, and any statement contained herein or therein, may not be used by any Person, party or entity against the Debtor or any of the Plan Proponents.
22
Case 11-20243-RTL
Doc 38
Desc Main
Case 11-20243-RTL
Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 1 of 9
Desc
PLAN EXHIBIT A GLOSSARY OF DEFINED TERMS
Case 11-20243-RTL
Desc
GLOSSARY OF DEFINED TERMS 1. Administrative Claim means any Claim incurred by the Debtor on or after the Petition Date and before the Effective Date for a cost or expense of administration in the Chapter 11 Case entitled to priority under sections 503(b) and 507(a)(1) of the Bankruptcy Code, including, without limitation, Fee Claims, any actual and necessary costs and expenses of preserving the Debtors Estate, and any actual and necessary costs and expenses of operating the Debtors business. 2. Affiliates means, with respect to any Person, all Persons that would fall within the definition assigned to such term in section 101(2) of the Bankruptcy Code, if such Person was a debtor in a case under the Bankruptcy Code. 3. Allowed, when used (a) with respect to any Claim, except for a Claim that is an Administrative Claim, means such Claim to the extent it is not a Contested Claim or a Disallowed Claim; (b) with respect to an Administrative Claim, means such Administrative Claim to the extent it has become fixed in amount and priority pursuant to the procedures set forth in Section 4.2(c) of this Plan; and (c) with respect to Old Equity Interests in the Debtor, means the Old Equity Interests as reflected in the stock transfer ledger or similar register of the Debtor as of the Effective Date. 4. Assets means all of the Debtors right, title and interest of any nature in property of any kind, wherever located, as specified in section 541 of the Bankruptcy Code. 5. Available Cash means all Cash of the Debtor, including all Cash received as distributions on account of the New LP Interest, less (a) Cash required to pay the fees and expenses of the Plan Administrator in accordance with Section 9.2 herein, (b) Cash reserved by the Plan Administrator, at its sole discretion, to make future Plan Distributions to holders of Administrative Claims, Tax Claims, Indenture Priority Claims and Senior Indenture Administrative Expense Claims that have not, but may, become Allowed Claims and (c) Cash required to make Plan Distributions to holders of Allowed Administrative Claims, Allowed Tax Claims, Allowed Indenture Priority Claims and Allowed Senior Indenture Administrative Expense Claims in accordance with Sections 3.1, 4.2 and 4.3 herein. 6. Bankruptcy Code means the Bankruptcy Reform Act of 1978, as codified at title 11 of the United States Code, as amended from time to time and applicable to the Chapter 11 Case. 7. Bankruptcy Court means the United States Bankruptcy Court for the District of New Jersey, or such other court having jurisdiction over the Chapter 11 Case. 8. Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure, as prescribed by the United States Supreme Court pursuant to section 2075 of title 28 of the United States Code and as applicable to the Chapter 11 Case. 9. Business Day means any day other than a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close for business in New York, New York.
Case 11-20243-RTL
Desc
10. Cash means legal tender of the United States of America or readily marketable direct obligations of, or obligations guaranteed by, the United States of America. 11. Causes of Action means all claims, rights, actions, causes of action, demands, liabilities, obligations, suits, debts, remedies, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages or judgments, whether known or unknown, liquidated or unliquidated, fixed or contingent, matured or unmatured, foreseen or unforeseen, asserted or unasserted, arising in law, equity or otherwise. 12. Chapter 11 Case means the case that will be commenced under chapter 11 of the Bankruptcy Code in the Bankruptcy Court with respect to the Debtor. 13. Claim means (a) any right to payment, whether or not such right is known or unknown, reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (b) any right to an equitable remedy for breach of performance if such breach gives rise to a right of payment, whether or not such right to an equitable remedy is known or unknown, reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured. For avoidance of doubt, Claim includes, without limitation, a right to payment, or equitable relief that gives rise to a right to payment, that has or has not accrued under non-bankruptcy law that is created by one or more acts or omissions of the Debtor if: (a) the act(s) or omission(s) occurred before or at the time of the Effective Date; (b) the act(s) or omission(s) may be sufficient to establish liability when injuries/damages are manifested; and (c) at the time of the Effective Date, the Debtor has received one or more demands for payment for injuries or damages arising from such acts or omissions. 14. Claim Objection Deadline means the deadline for filing objections to Claims as set forth in Section 7.1 herein. 15. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Case. 16. Confirmation Hearing means the hearing held by the Bankruptcy Court, as it may be continued from time to time, to consider confirmation of the Plan. 17. Confirmation Order means the order of the Bankruptcy Court confirming the Plan.
18. Contested (a) when used with respect to a Claim, means such Claim as to which a proof of Claim has been filed with the Bankruptcy Court, and as to which an objection was filed on or before the Claim Objection Deadline, unless and to the extent allowed in amount and/or priority by a Final Order of the Bankruptcy Court or the Plan; or as to which an objection has been filed on or before the Effective Date; provided, that a Claim that is fixed in amount and priority pursuant to the Plan or by Final Order on or before the Effective Date shall not be a Contested Claim; and (b) when used with respect to an Equity Interest, means such Equity Interest to the extent it is not reflected on the Debtors stock transfer ledger or similar register as of the Effective Date.
Case 11-20243-RTL
Desc
19. Creditors Committee means an Official Committee of Unsecured Creditors appointed in the Chapter 11 Cases, if any. 20. Debtor means ZAIS Investment Grade Limited VII.
21. Debtor in Possession means the Debtor, in its capacity as debtor in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. 22. Designated Assets means the Debtors Causes of Action (in accordance with Section 5.6 herein) and the Assets identified on Exhibit C attached hereto, which may be amended by the Plan Proponents at any time prior to the commencement of the Confirmation Hearing. 23. Disallowed when used with respect to a Claim, means a Claim, or such portion of a Claim, that has been disallowed by a Final Order. 24. Disclosure Statement means the disclosure statement filed with respect to the Plan, as it may be amended, supplemented, or otherwise modified from time to time, and the exhibits and schedules thereto. 25. DTC means The Depository Trust Company, its nominees and their respective successors. 26. Effective Date means a date selected by the Plan Proponents after all of the conditions specified in Section 8.1 of the Plan have been satisfied or waived on which the Plan shall be substantially consummated. 27. Estate means the estate of the Debtor created by section 541 of the Bankruptcy Code upon the commencement of the Chapter 11 Case. 28. Exculpated Parties means the (i) Debtor, (ii) NewCo, (iii) the Trustee, (iv) the Plan Proponent Parties, (v) any of the aforementioned parties current or former officers, directors, administrators, employees, members, managers, professionals, affiliates, advisors, partners and agents and (vi) the successors and assigns of the parties listed in (i) (v). 29. Exit Facility means a credit agreement, which may be entered into by NewCo, as borrower, and the Exit Facility Lender on or after the Effective Date, which (i) shall be on terms substantially similar to those contained in the term sheet attached as Exhibit D to the Disclosure Statement if the Exit Facility Lender is an Affiliate of the investment manager of the Plan Proponents or a fund managed by the Investment Manager or (ii) shall be on market terms available at the time the Exit Facility is entered if the Exit Facility Lender is a party other than an Affiliate of the investment manager of the Plan Proponents or a fund managed by the Investment Manager, and all related documents, instruments and agreements entered into, executed or delivered in connection therewith. 30. 31. Exit Facility Lender means a Person that lends to NewCo under the Exit Facility. Fee Application means an application for allowance and payment of a Fee Claim.
Case 11-20243-RTL
Desc
32.
Fee Claim means a Claim of a Professional Person.
33. Final Order means (a) an order or judgment of the Bankruptcy Court or any other court or adjudicative body of competent jurisdiction as to which the time to appeal, petition for certiorari, or move for reargument or rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for reargument or rehearing shall then be pending, or (b) in the event that an appeal, writ of certiorari, reargument, or rehearing thereof has been sought, such order of the Bankruptcy Court or any other court or adjudicative body shall have been affirmed by the highest court to which such order was appealed, or certiorari has been denied, or from which reargument or rehearing was sought, and the time to take any further appeal, petition for certiorari or move for reargument or rehearing shall have expired; provided, that no order shall fail to be a Final Order solely because of the possibility that a motion pursuant to section 502(j) of the Bankruptcy Code, Rule 59 or Rule 60 of the Federal Rules of Civil Procedure or Bankruptcy Rule 9024 may be filed with respect to such order in the future; provided further that the Plan Proponents or the Plan Administrator, as applicable, may waive any appeal period. 34. General Partner means Z-CDO Liquidation Fund GP, LLC, an affiliate of the investment manager of the Plan Proponents or such other Person designated by the Plan Proponents. 35. General Unsecured Claim means any Claim against the Debtor, other than an Administrative Claim, a Tax Claim, a Fee Claim, a Senior Indenture Administrative Expense Claim, an Indenture Priority Claim, a Senior Note Claim, a Junior A-2 Note Claim, a Junior A-3 Note Claim, a Junior B-1 Note Claim, a Junior B-2 Note Claim, a Subordinated Claim or an Income Note Claim. 36. Income Notes means those certain income notes issued by the Debtor pursuant to that certain Income Note Issuing and Paying Agency Agreement between the Debtor and JPMorgan Chase Bank, National Association (London Office), and its successors and permitted assigns, dated October 19, 2005 as amended, supplemented and otherwise modified. 37. Income Note Claims means all claims against the Debtor on account of the Income Notes. 38. Indenture means that certain Indenture agreement dated October 19, 2005 between ZAIS Investment Grade VII, as Issuer, and The Bank of New York, National Association, as successor to JPMorgan Chase Bank, National Association, as trustee and securities intermediary. 39. Indenture Administrative Expense Cap means an amount calculated by the Plan Administrator fifteen (15) days before each Quarterly Plan Distribution Date equal to the sum of (a) 0.04% per annum (pro rated for the related interest accrual period) of the aggregate principal balance of (i) the Designated Assets held by NewCo and (ii) the Cash held by the Debtor, excluding any Cash obtained from the Exit Facility and (b) $200,000 per annum (pro rated for the related interest accrual period). 40. Indenture Administrative Expense Claims means all Claims for Administrative Expenses as such term is used in the Indenture and is described in Section VI.B.2. of the Disclosure Statement.
Case 11-20243-RTL
Desc
41. Indenture Priority Claims means all Claims to which the Senior Notes are subordinated under the Indenture, other than Senior Indenture Administrative Expense Claims, as described in Section VI.B.2 of the Disclosure Statement. 42. Investment Manager means Anchorage Capital Group, L.L.C. or such other Person designated by the Plan Proponents which shall have the authority and responsibility to liquidate the Designated Assets and to distribute the corresponding proceeds to the Debtor pursuant to an investment management agreement, which shall be substantially in the form of Exhibit E hereto. 43. Junior A-2 Notes means those certain Class A-2 senior secured floating rate notes issued by the Debtor pursuant to the Indenture. 44. Junior A-2 Note Claims means all Claims against the Debtor on account of the Junior A-2 Notes. 45. Junior A-3 Notes means those certain Class A-3 senior secured floating rate notes issued by the Debtor pursuant to the Indenture. 46. Junior A-3 Note Claims means all Claims against the Debtor on account of the Junior A-3 Notes. 47. Junior B-1 Notes means those certain Class B-1A senior subordinate secured floating rate notes and those certain Class B-1B senior subordinate secured fixed rate notes issued by the Debtor pursuant to the Indenture. 48. Junior B-1 Note Claims means all Claims against the Debtor on account of the Junior B-1 Notes. 49. Junior B-2 Notes means those certain Class B-2A senior subordinate secured floating rate notes and those certain Class B-2B senior subordinate secured fixed rate notes issued by the Debtor pursuant to the Indenture. 50. Junior B-2 Note Claims means all Claims against the Debtor on account of the Junior B-2 Notes. 51. Junior Note Claims means the Junior A-2 Note Claims, Junior A-3 Note Claims, Junior B-1 Note Claims and Junior B-2 Note Claims. 52. Junior Notes means the Junior A-2 Notes, Junior A-3 Notes, Junior B-1 Notes and Junior B-2 Notes. 53. Limited Partnership Agreement means the limited partnership agreement that will govern NewCo, which shall be substantially in the form of Exhibit D hereto. 54. Local Rules means the Local Bankruptcy Rules of the United States Bankruptcy Court for the District of New Jersey.
Case 11-20243-RTL
Desc
55. NewCo means the legal entity to be formed pursuant to Section 5.2 herein whose legal name shall be Z-CDO Liquidation Fund, L.P. or any other name as may be chosen by the Plan Proponents. 56. NewCo Constituent Documents means the organic documents for NewCo as of the Effective Date, including the Limited Partnership Agreement. The NewCo Constituent Documents shall be in substantially the form attached to the Plan or filed with the Bankruptcy Court as Plan Documents. 57. 58. New LP Interest means the limited partnership interest in NewCo. Notice of Confirmation means the notice of entry of the Confirmation Order.
59. Old Equity Interest means any outstanding ownership interest in the Debtor, including, without limitation, interests evidenced by common or preferred stock, membership interests, options, stock appreciation rights, restricted stock, restricted stock units, or their equivalents, or other rights to purchase or otherwise receive any ownership interest in the Debtor and 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. 60. Person means an individual, corporation, partnership, limited liability company, joint venture, trust, estate, unincorporated association, unincorporated organization, governmental entity or political subdivision thereof, or any other entity. 61. Petition Date means the date on which the Chapter 11 Case is commenced.
62. Plan means this chapter 11 plan, either in its present form or as it may be amended, supplemented, or otherwise modified from time to time, and the exhibits and schedules hereto, as the same may be in effect at the time such reference becomes operative. 63. Plan Administrator means NewCo or, after the occurrence of the Effective Date, any agent selected by NewCo, acting on behalf of the Debtor in (a) making the distributions contemplated under the Plan, the Confirmation Order, or any other relevant Final Order and (b) performing any other act or task that is or may be delegated to the Plan Administrator under the Plan. 64. Plan Distribution means the payment or distribution under the Plan of Cash.
65. Plan Distribution Date means with respect to any Claim, (a) the Effective Date or a date that is as soon as reasonably practicable after the Effective Date, if such Claim is then an Allowed Claim or (b) if not Allowed on the Effective Date, a date that is as soon as reasonably practicable after the date such Claim becomes Allowed, but is not earlier than thirty (30) days following the previous Plan Distribution Date. 66. Plan Documents means the documents that aid in effectuating the Plan as specifically identified as such herein and filed with the Bankruptcy Court as specified in Section 1.5 including, without limitation, NewCo Constituent Documents and all Exhibits to the Plan.
Case 11-20243-RTL
Desc
67. Plan Proponents means GRF Master Fund, L.P., Anchorage Illiquid Opportunities Offshore Master, L.P. and Anchorage Capital Master Offshore, Ltd. 68. Plan Proponent Parties means the Plan Proponents and their Affiliates, investment managers and general partners. 69. Pro Rata Share means (a) with respect to Senior Note Claims, the proportion that Allowed Senior Note Claim bears to the aggregate amount of all Senior Note Claims, including Contested Claims, but excluding Disallowed Claims, (i) as calculated by the Plan Administrator or (ii) as determined or estimated by the Bankruptcy Court and (b) with respect to Senior Indenture Administrative Expense Claims, the proportion that an Allowed Senior Indenture Administrative Expense Claim bears to the aggregate amount of all unpaid Senior Indenture Administrative Expense Claims, including Contested Claims, but excluding Disallowed Claims, (a) as calculated by the Plan Administrator or (b) as determined or estimated by the Bankruptcy Court. 70. Professional Person means a Person retained or to be compensated for services rendered or costs incurred on or after the Petition Date and on or prior to the Effective Date pursuant to sections 327, 328, 329, 330, 331, 503(b), or 1103 of the Bankruptcy Code in the Chapter 11 Case. 71. Quarterly Plan Distribution Date means the 15th day of January, April, July and October of each year. 72. Rejection Damage Claim means any Claim arising out of the rejection of an executory contract or unexpired lease. 73. Schedules means, unless otherwise stated, the schedules of assets and liabilities and list of Old Equity Interests and the statements of financial affairs, if any, filed by the Debtor with the Bankruptcy Court. 74. Senior Indenture Administrative Expense Claims means those unpaid Indenture Administrative Expense Claims that in the aggregate do not exceed the Indenture Administrative Expense Cap on each Quarterly Plan Distribution Date and which shall be Allowed and payable solely as determined by the Plan Administrator in accordance with the priority of payments set forth in the definition of Administrative Expenses in the Indenture and as described in Section VI.B.2 of the Disclosure Statement. 75. Senior Notes means those certain Class A-1A senior secured floating rate notes and those certain Class A-1B senior secured fixed rate notes issued by the Debtor pursuant to the Indenture. 76. Senior Note Claims means all Claims for unpaid principal, interest and fees against the Debtor held by a Senior Noteholder on account of the Senior Notes, which Claims shall be deemed Allowed by the Plan in the aggregate amount of not less than $191,086,932. 77. Senior Note Plan Distribution Date means, with respect to any Allowed Senior Note Claim, each date upon which the Plan Administrator elects to distribute Available Cash.
Case 11-20243-RTL
Desc
78.
Senior Noteholder means any holder of a Senior Note.
79. Subordinated Claims means all Claims that are subordinated to the Senior Notes under the Indenture (including any Indenture Administrative Expense Claim that does not qualify as a Senior Indenture Administrative Expense Claim), other than Junior A-2 Note Claims, Junior A-3 Note Claims, Junior B-1 Note Claims, Junior B-2 Note Claims and Income Note Claims, as described in Section VI.B.2 of the Disclosure Statement. 80. Tax Claim means a Claim against the Debtor that is of a kind specified in section 507(a)(8) of the Bankruptcy Code. 81. Termination Date means the date where (i) the Debtor has distributed all its Cash, (ii) NewCo has liquidated the Designated Assets and (iii) NewCo has made all required payments to the Debtor on account of the New LP Interest. 82. Trustee means The Bank of New York, National Association, as successor to JPMorgan Chase Bank, National Association, as trustee under the Indenture, or any permitted successors in trust under the Indenture.
Case 11-20243-RTL
Doc 38-2 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit B Page 1 of 1
Desc
PLAN EXHIBIT B SCHEDULE OF ASSUMED EXECUTORY CONTRACTS AND UNEXPIRED LEASES [TO BE FILED]
Case 11-20243-RTL
Doc 38-3 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit C Page 1 of 4
Desc
PLAN EXHIBIT C SCHEDULE OF DESIGNATED ASSETS
Case 11-20243-RTL
Desc
Description ACABS 2002-1A - C Libor+2.6% 08/2037 ACABS 2003-2X - BF 5.000% - 12/2038 ACABS 2007-3A - P1 0.00% - 05/2047 ACACL 2006-1X - D Libor+4.0% 07/2018 ACAS 2007-1A - D Libor+1.85% - 08/2019 ACCRE 2005-1X - E Libor+2.0% 01/2046 ACCRE 2005-1X - F Libor+2.60% 01/2046 AJAX 2A - 3.88% 09/2032 AMMC 2006-6X - D Libor+1.60% 05/2018 ARE3R 2007-1X - E Libor+3.50% - 04/2021 ARES8 2004-1A - C2 6.901% - 02/2016 ARROY 1A C2 - Fixed 8.46% 08/2036 AVCLO 2004-1A - B1F 6.59% 02/2017 AVCLO 2005-2A - A2L Libor+0.42% - 10/2017 AVCLO 2005-2A - B2L Libor+4.75% - 10/2017 Non-PIK AVCLO 2006-4X - C Libor+1.45% 11/2018 Aurum CLO 2002-1 Ltd - 0% 04/2014 BABSN 2005-2A - C1 Libor+1.70% 07/2019 BAKR 2005-1A - E Libor+5.0% 12/2018 BIRCH 1A - NOTE 0.150% - 02/2038 BIRCH 1A - PREF 8.050% - 02/2038 BRCLO 2006-1A - C Libor+0.75% - 03/2023 BSIS 2006-4X - D Libor+1.45% 04/2019 CAMBR 5A - A3 Libor+.60% 12/2045 CAMBR 5A - B Libor+1.80% 12/2045 CARL 2006-9A - D Libor+1.60% 08/2021 CARL 2006-9X - D Libor+1.60% 08/2021 CBASS 2002-CB4 - B1 Libor+1.90% 02/2033 CBCL 9A - D Libor+2.70% 4/2039 - CDS CIFC 2007-2A - D Libor+3.90% 04/2021 CIFC 2007-2X - C Libor+1.60% - 04/2021 CIFC 2007-3A - B Libor+1.25% - 07/2021 CIFC 2007-3A - C Libor+2.60% 07/2021 CMLTI 2005-OPT3 - M9 Libor+1.85% 05/2035 ZIG7 - CDS CMLTI 2006-WFH3 - M7 Libor+0.80% 10/2036 COAST 2002-1X - D 8.478% - 07/2017 COMMO 1A - B Libor+0.80% 02/2037 COMMO 2005-4A - COM1 Libor+0.0% 02/2045 CORON 1A - C1 LIBOR+3.50 09/2038 Coda CDO Ltd - Preferred Shares Credit & Repackaged Secs Ltd - Libor+2.55% 06/2013 DASH 1A - A1 Libor+ 0.60% 12/2034 DASH3 1A - A1L Libor+.50% 07/2036 DASH3 1A - A2 7.4202% - 07/2036 DASH3 1X - A3L Libor+0.79% 07/2036 DEMER 2006-1X - D Libor+1.25% 10/2018 DGSL 1X - A3A Libor+2.80% 12/2014 DHCDO 2005-1A - D2 Libor+3.60% 12/2045 DRYD 2006-11A - C1 Libor+1.60% 04/2020 DUKEF 2005-9X - A3V Libor+1.50% 03/2045 EXUM 2006-5A - D Libor+3.00% 12/2011 FMCLO 2004-1X - D2 7.042% 01/2019 FRASR 2006-2X - E Libor+3.50% 02/2020 FULT 1A - A2 Libor+0.85% 04/2037 GALLA 4X - A1 Libor+.49% 08/2034 GALXY 2006-6X - D Libor+1.58% 06/2018 GARDN 2005-1A - C2 6.560% 10/2020
CUSIP / ISIN 00080UAE6 00081KAG2 00083PAA2 00083AAE7 000837AD6 USG0064BAE14 USG0064BAF88 00969QAG6 00174EAF6 04012LAF8 04010KAF2 042811AC3 053575AF3 053576AB0 05357YAA1 05357UAE1 AURUMSUBO 05615YAD3 05741NAA0 09070EAA3 122621AE5 09254DAD7 13189LAC3 13189LAD1 14309BAG9 14309BAG9 12489WFF6 17178WAA7 17178XAN7 17178NAE9 17178NAF6 17309QAL8 19035RAE9 202642AB0 202650AB3 21976RAC0 US1261832018 225308BA2 25513QAA7 25513SAA3 25513SAB1 25513SAC9 USG2710FAD80 255229AC0 26702TAF9 26249WAF2 26450AAC1 30232VAG3 358428AG5 35552QAF7 360721AC8 USG09086AA08 363186AJ6 14844QAJ2
Balance 6,701,368 3,500,000 15,500,000 3,000,000 2,406,353 4,000,000 1,000,000 6,000,000 2,000,000 2,000,000 2,500,000 4,000,000 5,000,000 2,000,000 3,796,392 3,000,000 1,762,500 3,250,000 2,000,000 3,000,000 7,000,000 2,000,000 2,000,000 3,000,000 3,327,342 1,000,000 2,000,000 330,393 1,290,649 2,000,000 2,000,000 2,400,000 3,750,000 3,170,306 956,732 6,800,000 2,000,000 5,495,133 1,500,000 30,000,000 6,000,000 1,268,427 581,078 1,743,235 6,000,000 2,142,756 1,202,240 6,710,508 5,000,000 4,330,196 3,326,417 2,812,355 2,000,000 3,000,000 3,047,086 1,665,927 5,000,000
Maturity 1-Aug-37 10-Dec-38 7-May-47 25-Jul-18 16-Aug-19 7-Jan-46 7-Jan-46 8-Sep-32 3-May-18 16-Apr-21 26-Feb-16 15-Aug-36 15-Feb-17 30-Oct-17 30-Oct-17 7-Nov-18 15-Apr-14 20-Jul-19 15-Dec-18 10-Feb-38 10-Feb-38 27-Mar-23 20-Apr-19 6-Dec-45 6-Dec-45 12-Aug-21 1-Aug-21 25-Feb-33 8-Apr-39 15-Apr-21 15-Apr-21 26-Jul-21 26-Jul-21 25-May-35 25-Oct-36 30-Jul-17 28-Feb-37 4-Feb-45 4-Sep-38 1-Jan-20 20-Jun-13 30-Dec-34 5-Jul-36 5-Jul-36 5-Jul-36 20-Oct-18 13-Dec-14 12-Dec-45 12-Apr-20 9-Mar-45 22-Dec-11 15-Jan-19 20-Dec-20 20-Apr-37 10-Aug-34 13-Jun-18 27-Oct-20
Case 11-20243-RTL
Desc
GEBL 2005-2A - D Libor+3.20% 11/2033 GECLT 2006-3 - D Libor+1.40% 01/2017 GEMC 2005-8A - D1 Libor+5.25% 06/2017 GEML 2006-3A - C Libor+3.0% 03/2021 GOLD4 2007-4X - C Libor+2.0% 08/2022 GRANV 2005-2A - D Libor+4.55% - 12/2017 GRANV 2006-3A - C Libor+1.65% 04/2018 GULFS 2007-1X - D Libor+2.40% 06/2021 HARV3 3A - A Libor+.49% 09/2031 HARV3 3X - A Libor+.49% 09/2031 ICES 2007-1A - C Libor+3.0% 08/2022 Ingress I Ltd - Fixed 7.38% 03/2040 Ischus Synthetic ABS CDO - Common Stock JAYST 2006-1A - B Libor+1.20% 04/2016 LAFSQ 2005-1A - C1 Libor+1.85% 11/2019 LARGO 2007-1X - C Libor+1.75% 06/2014 LBSBN 2006-1 - N1 6.770% - 04/2031 LNR 2005-1A - G Libor+2.45% 02/2043 LNXST 2007-1A - F Libor+1.75% - 03/2045 MCLO 2005-2A - B Libor+.80% 12/2019 MSAC 2005-WMC2 - B3 Libor+1.80% 02/2035 - CDS MUZ2 1X - B1 Libor+3% 03/2011 MUZ2 1X - B2 9% 03/2011 Mt Washington CBO I Limited - Senior Notes NAUTQ 2006-1A - C Libor+1.70% 04/2020 NAVG 2003-1A - B Libor+1.70% 11/2015 NAVG 2005-1X - C1 Libor+1.80% - 10/2017 NCHET 2005-3 - M9 SYNTH @ 1.885% - CDS NOMUR 1997-2 - INC 0.00% - 10/2009 Neptune CDO V - Preferred Shares ODINC 1A - D2U7 6.875% 10/2012 ORCHD 2003-1A - B Libor+1.75% 11/2038 Octagon Investment Partners VI - Preferred Shares PASA 1X - C Libor+2.60% 06/2037 Preferred CPO Limited - 10.026% 07/26/2030 RACER 2005-24E - CERT Libor+1.50% 12/2045 RACERS SER 2006-6-E - Libor+3.0% 10/2037 RACERS SER 2007-2-E - Libor+0.85% 11/2036 RASC 2005-EMX2 - B Libor+2.50% 07/2035 RESIF 2004-AX - B4 Libor+1.20% 02/2036 Racers 2001-21-E Tr - 7.950% - 10/2016 Racers Trust 2004-13-E - Libor+1.50% 09/2016 Robeco CDO II Limited - Class B-2 Notes SASC 2003-S1 - B Libor+4.00% 08/2033 SCF 3A - C Libor+3.65% 08/2038 SIL 2003-1A - B1 Libor+1.80% - 02/2016 SKTY 2005-2A - 9.941% - 11/2009 START 2005-BA - D Libor+2.40% 11/2040 SYMP 2006-2A - C Libor+1.50% 10/2020 SYMP 2006-2A - D Libor+3.50% 10/2020 Stone Tower III - Preferred Shares TALON 1A - A Libor+.49% 06/2035 TALON 1X - A Libor+0.49% - 06/2035 TIASF 1A - A2 7.06% 11/2030 TRAIN 3A - D Libor+3.50% 02/2038 TRIC 2003-1A - B1L Libor+3.0% 02/2016 TRIC 2003-1AR - A4L Libor+1.75% 02/2016 Term 2007-1A - Common Stock Tiers Georgia 2006-1 - Libor+2.43% 04/2013
36159GBX4 36829WAE2 368633AG8 36860NAL6 38136GAG6 38747PAE2 387477AG7 40256VAF5 41163JAA3 USG42878AA92 45110CAL9 45719QAC3 46426W207 47206MAB0 506762AN3 517107AD0 50180EAA4 53944PAQ5 52634WAL8 565764AG2 USG63587AJ18 USG63587AK80 623788AA4 639107AH4 63936JAE5 63936YAL6 NRA72INCO 64069U206 67606HAA7 68571SAC8 67571S205 71434D9A8 74037AAB5 76126CUN0 76128EAA4 76130QAA3 76110W2R6 USG7525RCG77 76126CJX1 76126CRJ3 77029LAA6 86359AV75 83743SAE6 827554AC0 80104MBJ6 85768QAF2 87155FAJ5 87155EAA7 64069U206 87483UAA4 87483UAA4 87245AAC3 892881AE3 896087AF0 896087AE3 88079R200 88653TAA9
3,224,902 1,240,910 3,000,000 4,000,000 4,600,000 3,000,000 4,000,000 2,500,000 3,479,150 2,319,433 3,250,000 591,351 20,279,496 2,000,000 3,000,000 2,000,000 55,520 3,830,807 4,000,000 5,000,000 1,365,820 1,977,001 2,414,447 7,546,557 6,000,000 3,000,000 2,063,255 4,000,000 17,419,000 18,600,000 2,500,000 5,000,000 1,216,003 5,000,000 5,000,000 5,292,824 4,748,718 4,576,774 2,128,209 2,052,823 5,952,983 8,000,000 4,000,000 679,217 4,803,146 3,000,000 5,000,000 2,831,126 2,000,000 2,000,000 26,600,000 1,669,311 185,479 1,175,510 7,672,051 767,259 2,000,000 25,700,000 2,000,000
15-Nov-33 19-Jan-17 23-Jun-17 23-Mar-21 18-Aug-22 15-Dec-17 20-Apr-18 17-Jun-21 15-Sep-31 15-Sep-31 15-Aug-22 30-Mar-40 1-Jan-20 11-Apr-16 15-Nov-19 21-Jun-14 28-Apr-31 28-Feb-43 4-Mar-45 20-Dec-19 25-Feb-35 15-Mar-11 15-Mar-11 28-May-11 15-Apr-20 15-Nov-15 21-Oct-17 25-Jul-35 30-Apr-11 1-Jan-20 11-Oct-12 18-Nov-38 1-Jan-20 19-Jun-37 26-Jul-30 8-Dec-45 3-Oct-37 6-Nov-36 25-Jul-35 10-Feb-36 10-Oct-16 20-Sep-16 30-Aug-13 25-Aug-33 10-Aug-38 25-Feb-16 30-May-11 14-Nov-40 25-Oct-20 25-Oct-20 1-Jan-20 5-Jun-35 5-Jun-35 25-Nov-30 19-Feb-38 29-Feb-16 28-Feb-16 1-Jan-20 4-Apr-13
Case 11-20243-RTL
Desc
Tiers-Ohio 2005-13 - Libor+2.40% 10/2015 WINGC 2004-1A - B 0.00% - 01/2036 ZING 10A - C Libor+4.00% - 11/2057
871928BU0 12493LBW1 98887BAN7
1,498,950 6,630,000 2,887,315
3-Oct-15 25-Jan-36 20-Nov-57
Case 11-20243-RTL
Doc 38-4 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit D Page 1 of 39
Desc
PLAN EXHIBIT D FORM OF NEWCO LIMITED PARTNERSHIP AGREEMENT
Case 11-20243-RTL
Desc
Z-CDO Liquidation Fund, L.P.
LIMITED PARTNERSHIP AGREEMENT
Z-CDO Liquidation Fund GP, L.L.C. General Partner
Dated on [____] [__], 2011
THE LIMITED PARTNERSHIP INTERESTS (INTERESTS) IN Z-CDO LIQUIDATION FUND, L.P. ISSUED PURSUANT TO THIS LIMITED PARTNERSHIP AGREEMENT (THE AGREEMENT) HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY U.S. STATE. FURTHER, Z-CDO LIQUIDATION FUND, L.P. INTENDS NOT TO REGISTER AS AN INVESTMENT COMPANY UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS AMENDED, PURSUANT TO SECTION 3(c)(7) THEREOF. INTERESTS MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. IT IS NOT ANTICIPATED THAT INTERESTS WILL BE REGISTERED UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS. IN ADDITION, TRANSFERS OF INTERESTS ARE SUBJECT TO THE RESTRICTIONS SET FORTH IN ARTICLE VII HEREOF.
NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
TABLE OF CONTENTS Article Page
ARTICLE I DEFINITIONS ..........................................................................................................................................1 ARTICLE II FORMATION AND PURPOSE ..............................................................................................................6 ARTICLE III THE GENERAL PARTNER; OTHER FUNDS.....................................................................................7 ARTICLE IV PARTNERSHIP INTERESTS .............................................................................................................12 ARTICLE V CAPITAL ACCOUNTS; ALLOCATIONS; VALUATION.................................................................14 ARTICLE VI REINVESTMENTS; DISTRIBUTIONS .............................................................................................17 ARTICLE VII TRANSFERS AND WITHDRAWALS OF PARTNERSHIP INTERESTS ......................................17 ARTICLE VIII OWNERSHIP OF PARTNERSHIP PROPERTY .............................................................................20 ARTICLE IX RECORDS AND ACCOUNTING; REPORTS; CONFIDENTIAL INFORMATION .......................21 ARTICLE X EXCULPATION AND INDEMNIFICATION .....................................................................................23 ARTICLE XI AMENDMENT; CONSENTS FOR OTHER PURPOSES ..................................................................26 ARTICLE XII DISSOLUTION AND WINDING UP ................................................................................................29 ARTICLE XIII MISCELLANEOUS ..........................................................................................................................32
-iNEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
Z-CDO LIQUIDATION FUND, L.P.

LIMITED PARTNERSHIP AGREEMENT THIS LIMITED PARTNERSHIP AGREEMENT is entered into on [____] [__], 2011, by and among Zais Investment Grade Limited VII, a Cayman Islands company as the initial limited partner (the Initial Limited Partner), the General Partner as general partner of Z-CDO Liquidation Fund, L.P. (the Partnership) and those other Persons who may hereafter be admitted to the Partnership as Limited Partners in accordance with the provisions hereof. PRELIMINARY STATEMENT WHEREAS, the parties desire to enter into this Agreement pursuant to and in accordance with the Exempted Limited Partnership Law (as amended) of the Cayman Islands (the Partnership Law) to: (i) set forth their respective interests, rights, powers, authority, duties, responsibilities, liabilities and obligations in and with respect to the Partnership, as well as the respective interests, rights, powers, authority, duties, responsibilities, liabilities and obligations of Persons who may hereafter be admitted to the Partnership as Partners in accordance with the provisions hereof; and (ii) provide for the management and conduct of the business and affairs of the Partnership. NOW, THEREFORE, in consideration of the mutual promises and agreements made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS Capitalized terms used in this Agreement have the meanings given them in this Article I, unless otherwise expressly provided herein or as otherwise required by the context. 1.1. Accounting Period means a period determined in accordance with the provisions of Section 9.2(b). 1.2. Additional General Partner has the meaning given it in Section 4.8(a).
1.3. Administrator means any party that the General Partner may select as administrator to the Partnership. 1.4. 1.5. Adverse Consequence has the meaning given it in Section 5.4(b). Advisers Act means the U.S. Investment Advisers Act of 1940, as amended.
1.6. Affiliate, of a specified Person, means any Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person. 1.7. Agreement means this limited partnership agreement as subsequently amended and/or restated from time to time in accordance with the provisions hereof and the Partnership Law. 1.8. Assignee has the meaning given it in Section 7.7(a).
NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
1.9. Bankruptcy, of a Person, means: (1) such Person (a) makes an assignment for the benefit of creditors; (b) files a voluntary petition in bankruptcy; (c) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceeding; (d) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (e) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of such nature; or (f) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties; or (2) one hundred and twenty (120) days after the commencement of any proceeding against such Person seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, the proceeding has not been dismissed, or if within ninety (90) days after the appointment without such Persons consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within ninety (90) days after the expiration of any such stay, the appointment is not vacated. Without limiting the generality of the foregoing, if a Person is a partnership, Bankruptcy of such Person shall also include the Bankruptcy of any general partner of such Person. 1.10. Business Day means any day on which the New York Stock Exchange and commercial banks in New York, New York are open for business. 1.11. Capital Account, of a Partner, has the meaning given it in Section 5.1.
1.12. Cash Equivalents means short-term deposits, commercial paper, demand deposits, U.S. government securities, money market funds, repurchase agreements and similar investments. 1.13. Carrying Value means, with respect to any Partnership asset, the assets adjusted tax basis for United States federal income tax purposes, except that the Carrying Values of all Partnership assets shall be adjusted to equal their respective Fair Market Values, in accordance with the rules set forth in Treasury Regulations 1.704-1(b)(2)(iv)(f), except as otherwise provided herein, immediately prior to: (a) the date of the acquisition of any additional interest in the Partnership by any new or existing Partner; (b) the date of the distribution of more than a de minimis amount of Partnership assets (other than a pro rata distribution) to a Partner; or (c) such other dates as may be specified in Treasury Regulations under 704 of the Code; provided that adjustments pursuant to clause (a), (b) or (c) above shall be made only if the General Partner in good faith determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Partners. The Carrying Value of any Partnership asset distributed to any Partner shall be adjusted immediately prior to such distribution to equal its Fair Market Value. In the case of any asset that has a Carrying Value that differs from its adjusted tax basis, Carrying Value shall be adjusted by the amount of depreciation, amortization and other cost recovery deductions calculated for purposes of the definition of Net Profits and Net Losses rather than the amount of depreciation determined for United States federal income tax purposes. 1.14. Certificate means the Certificate of Registration of Limited Partnership of the Partnership dated [____] [__], 2011. 1.15. Code means the United States Internal Revenue Code of 1986, as amended.
1.16. Control, whether such word is used as a noun, verb or adjective, has the meaning given it in Rule 405 under the Securities Act.
-2NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
1.17. Consent of the Partnership means, subject to Section 11.2(b), the consent of, as of any time, Limited Partners representing, as of such time, in excess of 50% of the aggregate Partnership Interests of such Limited Partners. 1.18. Consent Transaction means any transaction, practice, amendment to this Agreement or other action requiring the Consent of the Partnership under this Agreement. 1.19. Designee has the meaning given it in Section 7.3(a).
1.20. Distribution Proceeds means the net cash proceeds from the sale or disposition of the Partnership Property and income generated from investments, less Reserves. 1.21. Entity means any U.S. or non-U.S. corporation, partnership (whether general or limited), joint venture, limited liability company, business trust or association, trust, estate, unincorporated association or organization, government (or political subdivision, department or agency thereof), cooperative or other entity, whether acting in an individual or representative capacity. 1.22. amended. 1.23. ERISA means the U.S. Employee Retirement Income Security Act of 1974, as Exchange Act means the U.S. Securities Exchange Act of 1934, as amended.
1.24. Fair Market Value means the value of any one or more of the Partnerships assets, determined in accordance with the Investment Manager procedures for its investment business. 1.25. Fiscal Year means the fiscal year of the Partnership determined in accordance with the provisions of Section 9.2(a). 1.26. GAAP shall mean United States generally accepted accounting principles.
1.27. General Partner means Z-CDO Liquidation Fund GP, L.L.C. or, subject to the provisions of this Agreement, any one or more Additional General Partners, to the extent that Z-CDO Liquidation Fund GP, L.L.C., pursuant to the provisions of Section 4.8 of this Agreement, provides that any one or more of such Additional General Partners may possess and exercise any one or more of the rights, powers and authority of a general partner hereunder. 1.28. General Partner Party means the General Partner, the Investment Manager, any Affiliate of the General Partner or Investment Manager, any member, partner, shareholder, manager, director, officer, employee or agent (including any placement agent) of the General Partner or Investment Manager or any such Affiliate. 1.29. Indemnitee has the meaning given it in Section 10.2(a), and includes the Liquidator.
1.30. Initial Capital Contribution means the initial contribution of interests, properties (whether tangible or intangible, and whether real, personal or mixed), and rights that the Initial Limited Partner will contribute to the Partnership in exchange of the Initial Partnership Interests. 1.31. Agreement. Initial Limited Partner has the meaning given it in the introductory statement of this
-3NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
1.32. Initial Partnership Interests means the limited partnership interests of the Partnership that will be issued in favor of the Initial Limited Partner. 1.33. amended. Investment Company Act means the U.S. Investment Company Act of 1940, as
1.34. Investment Management Agreement means the management agreement among the Partnership, the General Partner and the Investment Manager dated [____] [__], 2011, as may be amended or amended and restated from time to time. 1.35. Investment Manager means, initially, Anchorage Capital Group, L.L.C., a Delaware, U.S.A. limited liability company, and any other party that may become the investment adviser to the Partnership pursuant to the terms hereof. 1.36. Limited Partner, as of a particular time, means a Person who is registered in the Partnership ledger maintained by the General Partner as limited partner of the Partnership in accordance with the provisions of this Agreement and who has not been required to withdraw from the Partnership as a limited partner pursuant to the provisions of Sections 7.2 or 7.5. 1.37. Limited Partner Interest means a Partnership Interest held by a Person in its capacity as a Limited Partner. 1.38. 1.39. Liquidation Reserves has the meaning given it in Section 12.2(b)(vii). Liquidator has the meaning given it in Section 12.2(a).
1.40. Losses, of a General Partner Party, means any and all losses, claims, damages, liabilities, expenses (including reasonable legal fees and expenses), judgments, fines, amounts paid in settlement and other amounts actually and reasonably paid or incurred by such General Partner Party in connection with any and all claims, demands, actions, suits or proceedings (including arbitration and mediation proceedings and actions by or in the right of the Partnership), civil, criminal, administrative or investigative, that relate, directly or indirectly, to acts or omissions (or alleged acts or omissions) of such General Partner Party in connection with the formation, business or operations of the Partnership and in which such General Partner Party may be involved, or is threatened to be involved, as a party, witness or otherwise, whether or not the same shall proceed to judgment or be settled or otherwise be brought to a conclusion. 1.41. Majority in Interest of the Limited Partners means, as of any time, Limited Partners representing, as of such time, in excess of 50% of the aggregate Partnership Interests of such Limited Partners. 1.42. Net Assets means the net assets of the Partnership.
1.43. Net Profits or Net Losses means, for each Fiscal Year or other period, the taxable income or loss of the Partnership, or particular items thereof, determined in accordance with the accounting method used by the Partnership for United States federal income tax purposes with the following adjustments: (i) all items of income, gain, loss or deduction specially allocated pursuant to Section 5.3 or otherwise pursuant to this Agreement, shall not be taken into account in computing such taxable income or loss; (ii) any income of the Partnership that is exempt from United States federal income taxation and not otherwise taken into account in computing Net Profits and Net Losses shall be added to such taxable income or loss; (iii) if the Carrying Value of any asset differs from its adjusted tax
-4NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
basis for United States federal income tax purposes, any gain or loss resulting from a disposition of such asset shall be calculated with reference to such Carrying Value; (iv) upon an adjustment to the Carrying Value of any asset pursuant to the definition of Carrying Value (except in respect of depreciation, amortization or cost recovery deductions), the amount of the adjustment shall be included as gain or loss in computing such taxable income or loss; (v) if the Carrying Value of any asset differs from its adjusted tax basis for United States federal income tax purposes, the amount of depreciation, amortization or other cost recovery deductions with respect to such asset for purposes of determining Net Profits and Net Losses shall be an amount which bears the same ratio to such Carrying Value as the United States federal income tax depreciation, amortization or other cost recovery deduction bears to such adjusted tax basis (provided that if the United States federal income tax depreciation, amortization, or other cost recovery deduction is zero, the General Partner may use any reasonable method for purposes of determining depreciation, amortization, or other cost recovery deductions in calculating Net Profits and Net Losses); and (vi) except for items in (i) above, any expenditures of the Partnership not deductible in computing taxable income or loss, not properly capitalizable and not otherwise taken into account in computing Net Profits and Net Losses pursuant to this definition shall be treated as deductible items. 1.44. Notification, to a Person, means a written notice that is deemed to be duly given to such Person on the date of delivery if delivered in person to such Person or sent to such Person by facsimile transmission, e-mail transmission or reputable overnight courier, on the date that transmission or receipt thereof is confirmed, or on the earlier of actual receipt or three (3) Business Days after the date of mailing if mailed to such Person by registered or certified mail (first class postage prepaid, return receipt requested); provided that a Notification to the Partnership shall be deemed to be duly given to the Partnership only upon its actual receipt by the Partnership. Any Notification required or permitted to be given to the Partnership shall be sent to the principal office of the Partnership, or to such other address, facsimile number or e-mail address as the General Partner may specify in a Notification given to all other Partners. Any Notification required or permitted to be given to a Partner shall be sent to such Partner at such address or to such facsimile number or e-mail address as such Partner may notify the Partnership by way of a Notification. 1.45. Partner means the General Partner and each Limited Partner, including the Initial Limited Partner. 1.46. Partnership means Z-CDO Liquidation Fund, L.P., a Cayman Islands exempted limited partnership formed in accordance with the Partnership Law. 1.47. Partnership Interest, of a Partner at any particular time, means such Partners interest, rights, powers and authority in and with respect to the Partnership at such time as determined in accordance with the provisions of this Agreement, including the Initial Partnership Interest. Such rights include (1) such Partners share of the profits and losses of the Partnership, and such Partners right to receive distributions from the Partnership pursuant to the provisions of this Agreement and (2) such Partners other rights, powers and authority in respect of the Partnership under this Agreement. 1.48. Partnership Law has the meaning given it in the Preliminary Statement.
1.49. Partnership Property, at any particular time, means all interests, properties (whether tangible or intangible, and whether real, personal or mixed), and rights of any type contributed to or acquired by the Partnership and owned or held by or for the account of the Partnership, whether owned or held by or for the account of the Partnership as of the date of the formation thereof or thereafter contributed to or acquired by the Partnership.
-5NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
1.50. Person means any natural person, whether acting in an individual or representative capacity, or any Entity. 1.51. 1.52. Reserves has the meaning given it in Section 9.3(b). Securities Act means the U.S. Securities Act of 1933, as amended.
1.53. Successor means (i) with respect to any natural person, the executor, administrator, guardian, conservator or other legal representative of such person and (ii) with respect to any Entity, the legal representative or successor thereof. 1.54. 1.55. Tax Matters Partner has the meaning given it in Section 9.5(d). Termination Date has the meaning given it in Section 2.4.
1.56. Transfer, whether such word is used as a noun, verb or adjective, means any transaction in which a Person assigns or purports to assign a Partnership Interest, or an interest therein, to another Person, and includes any transfer, sale, assignment, gift, exchange, pledge, mortgage or hypothecation, or any other conveyance, disposition or encumbrance, or any swap or other derivative transaction based on the value or change in value of a Partnership Interest, whether voluntary, involuntary or by operation of law, of such Partnership Interest or interest therein. 1.57. Treasury Regulations means the income tax regulations promulgated under the Code.
1.58. U.S. Securities Laws means any one or more of the Advisers Act, the Securities Act, the Exchange Act and the Investment Company Act.
ARTICLE II
FORMATION AND PURPOSE 2.1. Formation. The Partnership is going to be registered as an exempted limited partnership under Section 9 of the Partnership Law. The rights and obligations of the Partners shall be as stated in the Partnership Law, except as this Agreement otherwise provides. The General Partner, on behalf of the Partnership, shall effect all filing, recording, publishing and other acts necessary or appropriate for compliance with all the requirements for the formation and operation of the Partnership as an exempted limited partnership under this Agreement and the Partnership Law and under the laws of the Cayman Islands and such other jurisdictions in which the General Partner determines that the Partnership may conduct business (including without limitation making the filings required under Sections 9, 10 and 15 of the Partnership Law). 2.2. Name. The name of the Partnership shall be Z-CDO Liquidation Fund, L.P. The General Partner shall manage and conduct the business and affairs of the Partnership under that name or, to the extent permitted by applicable law, under such other name or names as the General Partner may determine from time to time. 2.3. Purpose. The business and purpose of the Partnership is to (i) acquire the Initial Capital Contribution and issue the Initial Partnership Interest in favor of the Initial Limited Partner in exchange thereof; (ii) liquidate the Partnership Property as directed by the Investment Manager; (iii) make investments of the available cash from income on, and disposition proceeds of, Partnership Property in Cash Equivalents; and (iv) make distributions of the Distribution Proceeds pursuant to Section 6.2 hereof; provided that the Partnership may not carry on any business, purpose or activity that may not lawfully be
-6NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
carried on by a limited partnership formed under the Partnership Law. The Partnership shall possess and may exercise all the powers and privileges granted by the Partnership Law or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary, appropriate, advisable or convenient to the conduct, promotion or attainment of any business, purpose or activity of the Partnership. 2.4. Status and Duration; Term. The Partnerships existence commenced on [____] [__], 2011, in accordance with the Partnership Law, and shall continue until complete liquidation of the Partnership Property and distribution of the Distribution Proceeds pursuant to Section 6.2 hereof. Following the expiration of the term, the Partnership shall be wound up and subsequently dissolved in accordance with the provisions of Article XII (the Termination Date). 2.5. Registered Office. The registered office of the Partnership in the Cayman Islands is [c/o Walkers Corporate Services Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1-9005, Cayman Islands], or such other office (which may but need not be a place of business of the Partnership) as the General Partner may designate from time to time; provided, that the General Partner shall give Notification to the Limited Partners of any change in the location of the registered office of the Partnership within thirty (30) days after the date of such change. The Partnership may have such other office or offices as the General Partner may designate from time to time. 2.6. Partners Not Agents. Except as specifically provided herein, nothing contained herein shall be construed to constitute any Partner as the agent of any other Partner or any Partner, other than the General Partner, as the agent of the Partnership. 2.7. Register. The General Partner, or a delegate on its behalf, shall maintain all registers or records in the manner required in respect of the Partnership under applicable law, including without limitation those under Sections 7(7)(b) and 11 of the Partnership Law. 2.8. Capital Contribution. Concurrently with the execution of this Agreement the General Partner shall make a capital contribution to the Partnership of $100 which shall be returned to the General Partner upon liquidation of the Partnership pursuant to Section 12.4.(a)(ii).
ARTICLE III
THE GENERAL PARTNER; OTHER FUNDS 3.1. Rights, Powers and Authority of the General Partner.
(a) Subject to the provisions of this Agreement and the requirements of applicable law, the General Partner shall possess and may exercise full, complete and exclusive right, power and authority to manage and conduct the business and affairs of the Partnership. The General Partner may delegate to any other person or entity, including the Investment Manager and the Administrator, any rights, powers, authority, duties and obligations as vested by this Agreement in the General Partner, except as prohibited by law. (b) Without limiting the generality of the foregoing, but subject in each case to the provisions of this Agreement and the requirements of applicable law, the General Partner shall possess and may exercise the right, power and authority: (i) to take such action for and on behalf of the Partnership and in the name of the Partnership as the General Partner shall reasonably determine to be necessary, appropriate, advisable or convenient to effect the continuation of the Partnership until the Termination Date and to -7NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
carry on the businesses, purposes and activities for which the Partnership was formed, including the activities set forth in Section 2.3, and further including the execution, swearing to, acknowledgement, delivery, publication and filing and recording in the appropriate public offices of:
(A)
all certificates, instruments and other documents (including this Agreement and the Certificate and all amendments and/or restatements thereof) that the General Partner shall reasonably determine to be necessary, appropriate, advisable or convenient to effect such formation and to carry on such businesses, purposes and activities (including such certificates, instruments or other documents, and such amendments thereto, as the General Partner shall reasonably determine to be necessary, appropriate, advisable or convenient to comply with the requirements for the operation of the Partnership as a Cayman Islands exempted limited partnership under the Partnership Law and the qualification of the Partnership to do business in any jurisdiction in which the Partnership owns property or conducts business); all certificates, instruments or other documents that the General Partner shall reasonably determine to be necessary, appropriate, advisable or convenient to reflect any amendment of this Agreement, or the Certificate effected in accordance with the provisions hereof; all conveyances and other certificates, instruments and other documents that the General Partner shall reasonably determine to be necessary, appropriate, advisable or convenient to reflect the winding up and dissolution of the Partnership pursuant to the provisions of this Agreement and the Partnership Law; and all certificates, instruments and other documents (including any agreement contemplated by Section 11.3) relating to the admission, withdrawal, removal or substitution of any Partner pursuant to the provisions of this Agreement.
(B)
(C)
(D)
(ii) to cause the Partnership to enter into agreements with (A) prime brokers, other broker-dealers, futures commission merchants, any counterparty, custodians, legal counsel, accountants, auditors, appraisers, investment bankers and other consultants selected by the General Partner, (B) one or more Persons to serve as investment manager(s) for or investment adviser(s) to the Partnership on a discretionary or non-discretionary basis, including the Investment Manager, in each case on such terms and subject to such conditions as the General Partner may determine, including with respect to any indemnification obligations in favor of any such Person (it being understood and agreed that nothing herein shall require the General Partner to employ or continue to employ the services of any Person, or be construed to limit in any way the rights, powers and authority of the General Partner hereunder); (iii) to cause the Partnership to loan monies to any Partner (including any Partner who is a General Partner Party), in such principal amount, and on such other terms and subject to such conditions, as the General Partner may determine (it being understood and agreed that in the event that any loan is not repaid on or before the maturity date of such loan, the General Partner may, but shall not be required to, cause the outstanding balance of such loan to be charged against such Partners Capital Account as of the end of the Accounting Period in which such loan matures and to treat the amount so charged as a distribution to such Partner); -8NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(iv) to the extent necessary or desirable to achieve an orderly liquidation of the Partnership Property, to cause the Partnership to borrow monies from time to time (and to pledge, mortgage, hypothecate or encumber its assets, and issue notes or other evidences of indebtedness, in connection therewith), on such terms and subject to such conditions as the General Partner may determine; (v) to cause the Partnership to engage in any transaction that is subject to the provisions of Section 206(3) of the Advisers Act; provided that, the General Partner may not cause the Partnership to engage in any such transaction without giving Notification to the Limited Partners, at least thirty (30) days prior to the completion of such transaction, setting forth all material facts relating to such transaction and obtaining the Consent of the Partnership to such transaction prior to the completion thereof; (vi) to act, in respect of any of its rights, powers, authority, duties, responsibilities or obligations hereunder, directly or by or through any duly authorized officer, employee or agent of the General Partner or any duly appointed attorney-in-fact of the General Partner (it being understood and agreed that each such officer, employee, agent or attorney-in-fact shall, to the extent provided by the General Partner, possess full and complete right, power and authority to do and perform each and every act which is permitted or required to be performed by a General Partner hereunder on behalf of the General Partner, without thereby causing the General Partner to cease to be a general partner of the Partnership); and (vii) to grant such indemnifications, execute such agreements and incur such obligations in order to allow the Initial Limited Partner to most effectively execute its plan for Bankruptcy reorganization. (c) Notwithstanding any other provision of this Agreement, the General Partner shall not have the right, power or authority, without the written consent of or ratification by all the Limited Partners, to: (i) do any act that would make it impossible to carry on the ordinary business of the Partnership (it being understood and agreed, for the avoidance of doubt, that this clause (i) shall not affect the General Partners right, power or authority to wind up and dissolve the Partnership in accordance with the provisions of Article XIII); (ii) confess a judgment against the Partnership; or (iii) possess Partnership Property for other than a proper Partnership purpose. (d) To the extent the duties, responsibilities or obligations of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any duty, responsibility, liability or obligation hereunder except to the extent that funds of the Partnership are reasonably available to it for the performance of such duties, responsibilities or obligations, and nothing herein contained shall be deemed to require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any specific liability or litigation on behalf of the Partnership. (e) The General Partner shall not have any personal liability for the repayment to the Initial Limited Partner of the Initial Capital Contribution.
3.2. Reliance by Third Parties. Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner has full right, power and authority to pledge, mortgage, hypothecate, encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any contracts for and on behalf of the Partnership, including, but not limited to, executing broker agreements, prime broker agreements, account agreements, repurchase agreements, reverse repurchase agreements, securities lending and hypothecation
-9NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
agreements, margin lending, custody account and sweep agreements, options agreements, futures agreements, foreign exchange agreements, contracts for differences master agreements, principal to principal transactions, agency cross transactions, brokered trades, any agreement documented pursuant to any International Swaps and Derivatives Association, Inc., the Bond Market Association (or any successor organization), or British Bankers Association Master Agreement, and all other manner of related or similar agreements or transactions, and such Person shall be entitled to deal with the General Partner as if it were the Partnerships sole party in interest, both legally and beneficially. In no event shall any Person dealing with the General Partner or its representatives be obligated to ascertain that the provisions of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or its representatives. Each and every certificate, instrument or other document executed on behalf of the Partnership by the General Partner shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, instrument or document, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, instrument or document was duly authorized and empowered to do so for and on behalf of the Partnership and (c) such certificate, instrument or other document was duly executed and delivered in accordance with the provisions of this Agreement and is binding upon the Partnership. 3.3. the Partnership.
(b) The Partnership shall pay such costs and expenses as the General Partner or the Investment Manager shall reasonably determine to be necessary, appropriate, advisable or convenient to carry on the businesses, purposes and activities for which the Partnership was formed (and shall reimburse the General Partner Parties for any such costs and expenses incurred by them on behalf of the Partnership), such as: (i)
Compensation and Reimbursement of Expenses.

(a)
No compensation is payable to the Investment Manager or the General Partner by
the organizational expenses of the Partnership;
(ii) any governmental, regulatory, licensing, filing or registration fees incurred by the Partnership, the General Partner or the Investment Manager in compliance with the rules of any self-regulatory organization or any U.S. federal, state or local laws; the cost of the audit of the Partnerships financial statements and the preparation of its tax returns; the fees and expenses for financial and tax accounting and reporting services, and administrative services on behalf of the Partnership to the extent performed by persons other than the General Partner or the Investment Manager; any administrators fees; specific expenses incurred in obtaining systems, research and other information utilized for portfolio management purposes that facilitate valuations and accounting, including the costs of statistics and pricing services, service contracts for quotation equipment and related hardware and software; the costs of any liability insurance obtained on behalf of the Partnership or a General Partner Party; and all costs and expenses associated with reporting and providing information to existing and prospective Limited Partners; and (iii) all costs and expenses directly related to liquidation of Partnership Property such as transaction costs, portfolio construction tools and data services (which may include Numerix and Intex Solutions); custody fees; any withholding or transfer tax is imposed on the Partnership or any of its Partners; to the extent permitted by applicable law, and subject to the indemnification/exculpation provisions of this Agreement or the Investment Management Agreement, any legal fees and costs (including settlement costs) arising in connection with any litigation or regulatory investigation instituted against the Partnership, the General Partner or the Investment Manager, each in its - 10 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
capacity as such; the expenses of the Partnerships counsel in connection with advice directly relating to the Partnerships legal affairs; the costs of any outside appraisers, accountants, attorneys or other experts engaged by the General Partner or the Investment Manager as well as other expenses directly related to be Partnerships liquidation of Partnership Property; the costs and expenses of holding any meetings of Limited Partners; and other expenses associated with the operation of the Partnership, including any extraordinary expenses (such as litigation and indemnification).
(c) Except as provided above, each of the General Partner and the Investment Manager shall pay all of its own operating and overhead costs without reimbursement from the Partnership.
3.4.
Activities of the General Partner and Affiliates; Interested Partners.
(a) Although nothing herein shall require any General Partner Party to devote its full time or any material portion of its time to the Partnership, the General Partner shall use its reasonable best efforts to further the businesses, purposes and activities of the Partnership and to devote to such businesses, purposes and activities such of its time and activity (and the time and activity of its employees) during normal business days and hours as they shall reasonably determine to be necessary for the Partnership to achieve its business objectives; provided that nothing contained in this Section 3.4(a) shall preclude any General Partner Party from acting, consistent with the foregoing, either individually or as a member, partner, shareholder, director, trustee, officer, official, employee or agent of any Entity, in connection with any type of enterprise (whether for or not for profit), regardless of whether the Partnership or any General Partner Party has dealings with or invests in such enterprise (but subject to Section 3.6). No Limited Partner shall, by reason of any provision of this Agreement or the General Partners carrying out the businesses, purposes and activities of the Partnership, be entitled to any interest, economic or otherwise, in any such enterprise. (b) Subject to the requirements of applicable law, the General Partner Parties invest directly in various futures, securities and derivatives for client accounts as well as their own accounts. Subject to their fiduciary duties to the Partnership, the General Partner Parties, in trading on behalf of client accounts or their own accounts, may make use of information obtained by the General Partner Parties in the course of managing the Partnership. The General Partner Parties have no obligation to the Partnership for any profits earned from their use of such information nor to compensate the Partnership in any respect for their receipt of such information. (c) The General Partner Parties may give advice to and take action in connection with providing services to other clients or their own accounts that differs from advice given, or in the timing and nature of action taken, with respect to the Partnership, even though the Partnership and such other clients may be similarly situated. (d) The General Partner or the Investment Manager, on behalf of the General Partner, may cause the Partnership to sell Partnership Property to other clients or vehicles managed by one or more General Partner Parties when the General Partner or the Investment Manager believes such transactions are appropriate and in the best interests of the Partnership. Any incremental costs and expenses associated with any such transactions shall be borne by all such funds (including the Partnership) on a pro rata basis. (e) In selecting broker-dealers to effect transactions with or for the Partnership, if any, the General Partner or the Investment Manager, subject to their overall duty to obtain best execution of Partnership transactions in securities, shall have authority to and may consider the full range and quality of the services and products provided by various broker-dealers, including factors such - 11 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
as the ability to effect prompt and reliable executions at favorable prices (including the applicable dealer spread or commission, if any), the operational efficiency with which transactions are effected, taking into account the size of order and difficulty of execution, the financial strength, integrity and stability of the broker, the broker firms risk in positioning a block of securities, the quality, comprehensiveness and frequency of available research services considered to be of value and the competitiveness of commission rates in comparison with other brokers satisfying the General Partners or the Investment Managers other selection criteria. As long as the services or other products provided by a particular broker-dealer (whether directly or through a third party) qualify as brokerage and research services within the meaning of Section 28(e) of the Exchange Act and the General Partner or the Investment Manager determines in good faith that the amount of commission charged by such broker-dealer is reasonable in relation to the value of such brokerage and research services, the General Partner or the Investment Manager may utilize the services of that broker-dealer to execute transactions for the Partnership on an agency basis even if (i) the Partnership would incur higher transaction costs than it would have incurred had another broker-dealer been used and (ii) the Partnership does not necessarily benefit from the research services or products provided by that broker-dealer. Each Limited Partner shall be deemed to have given full and informed consent to actions and practices involving actual or potential conflicts between the interests of any one or more General Partner Parties, on the one hand, and the Partnership and/or one or more Limited Partners, on the other hand, in connection with the management and conduct of the business and affairs of the Partnership, as contemplated herein.
(f) (g) The General Partner shall discuss the foregoing activities with any Limited Partner upon request. These activities provided to a Person prior to the time such Person becomes a Limited Partner of the Partnership, are explicitly acknowledged and consented to by each Person as a necessary condition to such Persons participation in the Partnership as a Limited Partner. ARTICLE IV
PARTNERSHIP INTERESTS 4.1. General.

(a)
Partnership Interests and Partners shall have the relative rights, powers, authority, privileges, preferences, duties, responsibilities, liabilities and obligations applicable to such Partnership Interests and such Partners as are set forth in this Agreement.
(b) Partnership Interests shall be deemed to be personal property giving only the rights, powers, authority, privileges and preferences provided herein, notwithstanding the nature of the property held by the Partnership. No Partner shall have any right, title or interest in or to any specific Partnership Property, nor shall any Partner have any right to call for a partition or division, or possession, of the same or for an accounting.
4.2.
Issuance and Records of Limited Partner Interests.
(a) The General Partner shall cause the books and records of the Partnership to reflect each Person who is admitted as a Limited Partner of the Partnership, including the Initial Limited Partner.
A Person may be admitted to the Partnership as a Limited Partner only if such admission is effected in accordance with the provisions of Section 7.7(b)
(b)
- 12 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(c) The General Partner may compromise or waive any obligation a Limited Partner may have to the Partnership hereunder, on such terms and subject to such conditions as the General Partner may determine.
4.3. No Personal Liability. Except as otherwise expressly provided in this Agreement or otherwise required by the Partnership Law, no Limited Partner shall be liable for the debts, obligations or liabilities of the Partnership, whether arising in tort, contract or otherwise, unless (a) such Limited Partner expressly agrees otherwise or (b) such Limited Partner, in addition to exercising its rights, powers and authority as a Limited Partner, is admitted to the Partnership as a general partner. 4.4. No Participation in Management.
(a)
No Limited Partner shall, in its capacity as such, take part in the management or conduct of the business or affairs of the Partnership, transact any business in the name of the Partnership, or otherwise for or on behalf of the Partnership, or have the right, power or authority to sign documents for or otherwise bind the Partnership or to incur any indebtedness or expenditures on behalf of the Partnership.
(b) No Limited Partner, in its capacity as such, shall have the right, power or authority to approve, agree to, vote on or consent to any matter affecting the Partnership except to the extent any such right, power or authority is expressly granted to such Limited Partner by this Agreement.
4.5. No Appraisal Rights. Except as may otherwise be determined by the General Partner, Limited Partners shall have no appraisal rights in connection with any action taken by the Partnership, including any transaction contemplated by Article XII of this Agreement. 4.6. Ownership of Interests. The ownership of Limited Partner Interests shall be recorded on the books and records of the Partnership, and no certificates certifying the ownership of Limited Partner Interests shall be issued except to the extent and in such manner the General Partner may determine from time to time. The register of Limited Partners of the Partnership as maintained by the General Partner (or by a Person appointed by the General Partner) shall be conclusive as to the identity of the holders of Limited Partner Interests. 4.7. Power of Attorney.
(a)
Each Limited Partner constitutes and appoints the General Partner, the Liquidator and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to execute, swear to, acknowledge, deliver, publish and file and record in the appropriate public offices: (i) all certificates, instruments and other documents (including this Agreement and all amendments and/or restatements thereof) that the General Partner or the Liquidator shall reasonably determine to be necessary, appropriate, advisable or convenient to effect the formation of the Partnership and to carry on the businesses, purposes and activities for which the Partnership was formed (including such certificates, instruments or other documents, and such amendments thereto, as the General Partner or the Liquidator shall reasonably determine to be necessary, appropriate, advisable or convenient to comply with the requirements for the operation of the Partnership as a limited partnership and the qualification of the Partnership to do business in any jurisdiction in which the Partnership owns property or conducts business); (ii) all certificates, instruments or other documents that the General Partner or the Liquidator shall reasonably determine to be necessary, appropriate, advisable or convenient to reflect any amendment of this Agreement effected in accordance with the provisions hereof; (iii) all conveyances and other certificates, instruments and other documents that the General Partner or the Liquidator shall
- 13 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
reasonably determine to be necessary, appropriate, advisable or convenient to reflect the winding up and dissolution of the Partnership pursuant to the provisions of this Agreement; and (iv) all certificates, instruments and other documents relating to the admission, withdrawal, removal or substitution of any Partner pursuant to the provisions of this Agreement.
(b) The foregoing appointment is irrevocable and has been granted to secure the obligation of each Limited Partner and shall be deemed to be a power coupled with an interest, in recognition of the fact that the Limited Partners shall be relying upon the power of the General Partner or the Liquidator, as the case may be, to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive the Transfer of a Limited Partner Interest, or any interest therein, and shall extend to the Successors of the transferring Limited Partner. (c) Nothing contained in this Section 4.7 shall be construed as authorizing the General Partner or the Liquidator to amend this Agreement except in accordance with the provisions of Article XII.
4.8.
Admission of Additional General Partners.
(a) Subject to the provisions of Section 4.8(b), the General Partner may cause the Partnership to admit one or more Persons (including one or more Affiliates of the General Partner) to the Partnership as a general partner or general partners (each such Person, an Additional General Partner) effective as of the beginning of any month, and, in connection therewith, may amend this Agreement to provide that any one or more of such Additional General Partners may possess and exercise any one or more of the rights, powers and authority of a general partner hereunder. (b) The General Partner may effect an admission of an Additional General Partner that is an Affiliate of the General Partner without obtaining the authorization or approval of the Limited Partners, but shall give Notification of such admission to the Limited Partners within a reasonable time after such admission. Except as required by applicable law, changes in the members or officers of the General Partner shall not require the consent of the Limited Partners and shall not dissolve the Partnership. The General Partner may not effect an admission of an Additional General Partner that is not an Affiliate of the General Partner without the consent of a Majority in Interest of the Limited Partners. ARTICLE V
CAPITAL ACCOUNTS; ALLOCATIONS; VALUATION 5.1. Capital Accounts. The General Partner shall cause the Partnership to establish and maintain for each Partner a separate capital account (Capital Account). The Capital Account of each Partner shall be credited with all Net Profits allocated to such Partner pursuant to Section 5.2 and any items of income or gain which are specially allocated pursuant to Section 5.3 or otherwise pursuant to this Agreement. The Capital Account shall be debited with all Net Losses allocated to such Partner pursuant to Section 5.2, any items of loss or deduction of the Partnership specially allocated to such Partner pursuant to Section 5.3 or otherwise pursuant to this Agreement, and all cash and the Carrying Value of any property (net of liabilities assumed by such Partner and the liabilities to which such property is subject) distributed by the Partnership to such Partner. To the extent not provided for in the preceding sentence, the Capital Accounts of the Partners shall be adjusted and maintained in accordance with the rules of Treasury Regulations 1.704-1(b)(2)(iv), as the same may be amended or revised; provided that such adjustment and maintenance does not have a material adverse effect on the economic interests of the Partners. Subject to the foregoing sentence, in maintaining Capital Accounts, the General Partner may make such adjustments as it deems reasonably necessary to give effect to the provisions of this Agreement taking into account such facts and circumstances as the General Partner deems reasonably
- 14 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
necessary or appropriate for this purpose. Any references in this Agreement to the Capital Account of a Partner shall be deemed to refer to such Capital Account as the same may be credited or debited from time to time as set forth above. In the event of any Transfer of any interest in the Partnership in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred interest. Notwithstanding anything in this Agreement to the contrary, no Partner shall be required to pay to the Partnership or to any other Partner the amount of any deficit that may exist from time to time in such Partners Capital Account solely by reason of the existence of any such deficit (it being understood that, for the avoidance of doubt, this sentence is not intended to limit the application of any other provision of this Agreement that may require a Partner to make payments under such provision). 5.2. Allocations of Net Profits and Net Losses. Except as otherwise provided in this Agreement, Net Profits, Net Losses and, to the extent necessary, individual items of income, gain, loss or deduction, of the Partnership shall be allocated among the Partners in a manner such that, after giving effect to the special allocations set forth in Section 5.3, the Capital Account of each Partner, immediately after making such allocation, is, as nearly as possible, equal (proportionately) to the distributions that would be made to such Partner pursuant to Section 6.2 if the Partnership were dissolved, its affairs wound up and its assets sold for cash equal to their Carrying Value, all Partnership liabilities were satisfied, and the Net Assets of the Partnership were distributed in accordance with Section 6.2 to the Partners immediately after making such allocation. For the avoidance of doubt and solely for the purpose of applying the preceding sentence, the General Partner shall be permitted, in its discretion, to cause the Carrying Value of a Partnership asset to be adjusted, as described in the definition of Carrying Value, on a mutatis mutandis basis at the time at which such preceding sentence is applied. Notwithstanding the foregoing, the General Partner may make such allocations as it deems reasonably necessary to give economic effect to the provisions of this Agreement taking into account such facts and circumstances as the General Partner deems reasonably necessary or appropriate for this purpose. 5.3. Special Allocation Provisions. Notwithstanding any other provision in this Article V:
(a) Qualified Income Offset. If any Partner unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate any deficit balance in its Capital Account created by such adjustments, allocations or distributions as promptly as possible. (b) Gross Income Allocation. If any Partner has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Partner is obligated to restore, if any, pursuant to any provision of this Agreement, and (ii) the amount such Partner is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulations 1.704-2(g)(1) and 1.704-2(i)(5), each such Partner shall be specially allocated items of Partnership income and gain in the amount of such excess as quickly as possible; provided that an allocation pursuant to this Section 5.3(b) shall be made only if and to the extent that a Partner would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article VI have been tentatively made as if Section 5.3(a) and this Section 5.3(b) were not in this Agreement. (c) General Partner Expenses. If any expenses of the General Partner and any items of loss, expense or deduction resulting therefrom are deemed to constitute items of Partnership loss or deduction rather than items of loss or deduction of the General Partner, such expenses of the General Partner and other items of loss, expense or deduction shall be allocated 100% to the General Partner and the General Partners Capital Account shall be credited with a deemed capital contribution in the same amount. - 15 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(d) Payee Allocation. If any payment to any Person that is treated by the Partnership as the payment of an expense is recharacterized by a taxing authority as a Partnership distribution to the payee as a Partner, such payee shall be specially allocated an amount of Partnership gross income and gain as quickly as possible equal to the amount of the distribution. (e) Organizational Expenses. Organizational expenses for which the Partnership reimburses the General Partner Parties under Section 3.3 shall be allocated to the Partners in accordance with their respective Limited Partner Interest. (f) Special Expense Allocations. Any expenses specially allocated under this Agreement shall be allocated to the Partners in accordance with the relevant Section of this Agreement or, if none, their respective Limited Partner Interest. (g) Effect of Special Allocations on Subsequent Allocations. Any special allocations of income or gain pursuant to Section 5.3(a) or 5.3(b) shall be taken into account in computing subsequent allocations pursuant to Section 5.2 and this Section 5.3(g), so that the net amount of any items so allocated and all other items allocated to each Partner shall, to the extent possible, be equal to the net amount that would have been allocated to each Partner if such allocations pursuant to Section 5.3(a) or 5.3(b) had not occurred. (h) Withholding Taxes. Any taxes, fees or other charges the Partnership is required to withhold under applicable law with respect to any Partner (or that are withheld from payments to the Partnership with respect to any Partners Partnership Interest) shall be withheld by the Partnership (and paid to the appropriate governmental authorities) and shall be deducted from the Capital Account of such Partner as of the last day of the Fiscal Year or fiscal period with respect to which such amount is required to be withheld and will be deemed to be a payment to such Partner.
5.4.
Tax Allocations.
(a) For income tax purposes only, each item of income, gain, loss, deduction and credit of the Partnership shall be allocated among the Partners in the same manner as the corresponding items of Net Profits and Net Losses and specially allocated items are allocated for Capital Account purposes; provided that in the case of any Partnership asset the Carrying Value of which differs from its adjusted tax basis for United States federal income tax purposes, income, gain, loss, deduction and credit with respect to such asset shall be allocated solely for income tax purposes in accordance with the principles of Sections 704(b) and (c) of the Code (in any manner determined by the General Partner) so as to take account of the difference between Carrying Value and adjusted tax basis of such asset. (b) Notwithstanding anything in this Section 5.4 to the contrary, the General Partner may make such allocations as it deems reasonably necessary or appropriate to give economic effect to the provisions of this Agreement taking into account such facts and circumstances as the General Partner deems reasonably necessary or appropriate for this purpose.
5.5. Other Allocation Provisions. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations 1.704-1(b) and shall be interpreted and applied in a manner consistent with such regulations. Sections 5.2, 5.3 and 5.4 may be amended at any time by the General Partner, without the consent of the Limited Partners, if reasonably necessary, in the opinion of tax counsel to the General Partner, to comply with such regulations, so long as any such amendment does not materially change the relative economic interests of the Partners.
- 16 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
5.6. No Interest on Capital Accounts. Partners shall not be entitled to interest on their Capital Accounts. 5.7. Valuation of the Partnerships Assets. The General Partner does not intend or expect to value the Partnerships assets pursuant to Fair Market Value procedures but it reserves the right to do it at its own discretion.
ARTICLE VI
REINVESTMENTS; DISTRIBUTIONS 6.1. Reinvestments. The General Partner is authorized to use all Distribution Proceeds received until they are distributed pursuant to the following Section 6.2 to make investments in Cash Equivalents as well as to pay expenses. 6.2. Distributions.
(a) Distributions shall be made to the Partners at least on a quarterly basis at the end of each quarter and at such other times and in such manner as the General Partner may determine, to the extent that Distribution Proceeds are available. (b) Distribution Proceeds shall be apportioned to the Partners pro rata based on their respective Limited Partner Interest. (c) All distributions may be made in cash, in kind or partly in cash or in kind as determined by the General Partner. (d)
All distributions shall be subject to any Reserves established by the General

ARTICLE VII
Partner. TRANSFERS AND WITHDRAWALS OF PARTNERSHIP INTERESTS 7.1. No Withdrawal of Limited Partners. As the only Partner making a capital contribution to the Partnership, the Initial Limited Partner shall not have the right to withdraw, or receive any return of, or the fair value of, any portion of the Initial Capital Contribution. 7.2. Involuntary Withdrawal of Limited Partners.
(a) The General Partner may at any time require any Limited Partner to: (i) withdraw all or any portion of its Capital Account by giving not less than five days Notification to such Limited Partner; or (ii) withdraw as a Limited Partner by giving not less than five days Notification to such Limited Partner; provided that no such Notification shall be required with respect to any such Limited Partner if the General Partner has reason to believe that such Limited Partner acquired a Limited Partner Interest as a result of a misrepresentation or that such Limited Partners ownership of a Limited Partner Interest would cause the Partnership or the General Partner to be in violation of any law or regulation applicable to the Partnership or the General Partner or would result in any of the assets of the Partnership being considered to be assets of any employee benefit plan as defined in and subject to ERISA or any plan as defined in and subject to Section 4975 of the Code for any purpose of ERISA or Section 4975 of the Code or would cause any transaction entered into, or to be entered into, by the Partnership to constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975(c) of the Code. - 17 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(b) A Limited Partner whose Limited Partner Interest is withdrawn, in whole or in part, pursuant to Section 7.2(a) shall be entitled to receive, within a reasonable period of time following the compulsory withdrawal, the Fair Market Value with respect to its Limited Partner Interest.
7.3.
Changes in the General Partner.
(a) Without the approval of the Limited Partners, subject to the provisions of Section 10(2) of the Partnership Law, the General Partner may withdraw as general partner of the Partnership and designate an Affiliate of the General Partner or any successor to the business or assets of the General Partner (the Designee) to be added or substituted as General Partner. The Designee shall become and have all of the rights, powers and duties of the General Partner for all purposes of this Agreement. Except as required by applicable law, changes in the members or officers of the General Partner shall not require the consent of the Limited Partners and shall not dissolve the Partnership. The General Partner may not be removed other than as required by law. (b) In the event of any incapacity or withdrawal of the last remaining General Partner, pursuant to Sections 15(5) and (6) of the Partnership Law, the Partnership shall be dissolved on the date falling 90 calendar days after notice of such event being given by the General Partner to the Limited Partners, unless a Majority in Interest of the Limited Partners approve a new general partner of the Partnership and the continuation of the Partnership upon such terms and conditions as the parties may then agree.
7.4. Restrictions on Transfers of Limited Partner Interests. No Limited Partner may Transfer a Limited Partner Interest, or any interest therein, unless such Transfer arises by operation of law or has been expressly approved by the General Partner. The General Partner may withhold such approval in its sole and absolute discretion or may grant such approval on such terms and subject to such conditions as the General Partner may determine. 7.5. Involuntary Transfers of Limited Partner Interests.
(a) The General Partner may at any time require any Limited Partner to Transfer all or any portion of its Limited Partner Interest by giving not less than five days Notification to such Limited Partner; provided that no such Notification shall be required with respect to any such Limited Partner if the General Partner has reason to believe that such Limited Partner acquired a Limited Partner Interest as a result of a misrepresentation or that such Limited Partners ownership of a Limited Partner Interest would cause the Partnership or the General Partner to be in violation of any law or regulation applicable to the Partnership or the General Partner or would result in any of the assets of the Partnership being considered to be assets of any employee benefit plan as defined in and subject to ERISA or any plan as defined in and subject to Section 4975 of the Code for any purpose of ERISA or Section 4975 of the Code or would cause any transaction entered into, or to be entered into, by the Partnership to constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975(c) of the Code. (b) A Limited Partner whose Limited Partner Interest is transferred pursuant to Section 7.5(a) shall be entitled to receive from the transferee, within a reasonable period of time following the compulsory transfer, the amount agreed upon by the transferee and the transferor or, in the absence of such agreement, an amount equal to the Fair Market Value with respect to such Limited Partner Interest. The General Partner will require the transferee to accept such transfer subject to a lien from the transferee until the amounts herein are paid.
- 18 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
7.6.
Obligations of Transferors of Limited Partner Interests.
(a) If a Person desires to Transfer a Limited Partner Interest, or an interest therein, pursuant to the provisions of Section 7.4, such Person shall be responsible for compliance with all conditions of Transfer imposed by this Agreement and under applicable law and for any expenses incurred by the Partnership for legal and/or accounting services in connection with reviewing the Transfer or obtaining legal opinions in connection therewith. Upon the request of the General Partner, a Person desiring to Transfer a Limited Partner Interest, or any interest therein, pursuant to Section 7.4 shall either cause the Partnership to be provided with, or authorize the Partnership to obtain, an opinion of counsel satisfactory to the General Partner that the proposed Transfer complies with the Securities Act and any applicable state securities laws. (b) Unless otherwise expressly agreed by the General Partner, no Transfer of a Limited Partner Interest, or any interest therein, other than pursuant to a statutory merger or consolidation of the transferor wherein all duties, responsibilities, liabilities and obligations of the transferor are assumed by a successor corporation by operation of law, shall relieve the transferor of its obligations under this Agreement.
7.7.
Obligations of Transferees of Limited Partner Interests.
(a) Prior to the admission to the Partnership, as a Limited Partner, of a Person to whom a Limited Partner Interest, or any interest therein, has been Transferred pursuant to the provisions of this Agreement, such Person (an Assignee) shall be entitled to share in such profits and losses, to receive such distributions, and to receive such allocations of items of the Partnerships income, gain, deduction, loss and credit, as the transferor would have been entitled to share and receive in respect of the Limited Partner Interest or interest therein so Transferred, but shall not be entitled to become a Limited Partner or to exercise any of the other rights, powers or authority of a Limited Partner until such time as such Assignee is admitted as a Limited Partner in accordance with this Agreement. Any such assignment agreement shall provide that the Assignee shall be entitled to receive such allocations of the Partnerships income, gain, deduction, loss and credit as the transferor would have been entitled to share and receive had the Limited Partner Interest not been so Transferred.
No Assignee of a Limited Partner Interest, or any interest therein, shall be admitted to the Partnership as a Limited Partner unless such admission is approved by the General Partner and the General Partner causes the books and records of the Partnership to reflect such admission. The General Partner may withhold such approval in its sole and absolute discretion or may grant such approval on such terms and subject to such conditions as the General Partner may determine.
(b) (c) In the case of a Transfer of a Limited Partner Interest, or an interest therein, arising by operation of law, the Successor of the transferor shall be deemed (i) to be bound hereby as an Assignee and (ii) to have assumed all of the duties, responsibilities, liabilities and obligations of the transferor under this Agreement (including under this Article VII) with respect to such Transferred Limited Partner Interest or interest therein, unless the General Partner agrees otherwise. (d) A Person admitted to the Partnership as a Limited Partner pursuant to the provisions of Section 7.7(b) shall, to the extent of the Limited Partner Interest, or interest therein, Transferred to such Person, succeed to all of the rights, powers and authority of the transferor Limited Partner under this Agreement in the place and stead of such transferor Limited Partner (which succession, in the event of a pledge, encumbrance, hypothecation or mortgage, may be entered into and become effective at the time of foreclosure or other realization of such pledge or mortgage).
- 19 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(e) Unless the General Partner expressly agrees otherwise, any Person to whom a Limited Partner Interest, or an interest therein, is Transferred, whether or not such Person is admitted to the Partnership as a Limited Partner, shall, to the extent of such Limited Partner Interest or interest therein, succeed to the duties, responsibilities, liabilities and obligations of the transferor hereunder, and be subject to the restrictions to which such transferor is subject hereunder (unless such Transfer is a pledge, encumbrance, hypothecation or mortgage which has not theretofore been foreclosed or otherwise realized upon) or except as otherwise provided herein.
7.8.
Effective Dates of Transfers.
(a) Transfers of Limited Partner Interests, or interests therein, pursuant to this Article VII may be made on any day, but for purposes of this Agreement, the effective date of any such Transfer shall be (i) the first day of the month in which such Transfer occurred if such Transfer occurred on or prior to the fifteenth (15th) calendar day of a month or (ii) the first day of the month immediately following the month in which such Transfer occurred, if such Transfer occurred after the fifteenth (15th) calendar day of a month, or such other date determined by the General Partner pursuant to such convention as may be administratively feasible and consistent with applicable law.
If any Limited Partner Interest, or any interest therein, is Transferred in compliance with the provisions of this Article VII, on any day other than the first day of a calendar year, then each item of the Partnerships income, gain, deduction, loss and credit attributable thereto for such year shall be allocated to the transferor and the transferee by taking into account their varying interests during such year in accordance with Section 706(d) of the Code, using any method permitted thereunder. All distributions pursuant to Section 6.2 attributable to such Transferred Limited Partner Interest or interest therein (i) with respect to which the distribution record date is before the effective date of such Transfer (other than a pledge, encumbrance, hypothecation or mortgage) shall be made to the transferor and (ii) with respect to the first distribution record date after the effective date of such Transfer (other than a pledge, encumbrance, hypothecation or mortgage) shall be paid to the transferee.
(b)
7.9. Effect of Non-Complying Transfers. Any Transfer of any Partnership Interest, or interest therein, that would (a) violate the provisions of this Agreement, (b) violate any of the U.S. Securities Laws or applicable state securities laws, (c) cause the termination of the Partnerships classification as a partnership for U.S. federal income tax purposes, (d) cause the Partnership to be treated as a publicly traded partnership taxable as a corporation within the meaning of Section 7704 of the Code and the Treasury Regulations or (e) cause the assets of the Partnership to be treated for any purpose of ERISA or Section 4975 of the Code as assets of any employee benefit plan as defined in and subject to ERISA or of any plan as defined in and subject to Section 4975 of the Code or would result in a nonexempt prohibited transaction as defined in Section 406 of ERISA or Section 4975(c) of the Code, shall be wholly null and void ab initio and of no legal force or effect and shall not effectuate the Transfer contemplated thereby. The Partnership shall have the right to obtain injunctive relief (in addition to and not in lieu of any other remedies available to it) in the event of any breach of the provisions of this Article VII.
ARTICLE VIII
OWNERSHIP OF PARTNERSHIP PROPERTY Title to and beneficial interest in Partnership Property shall be deemed to be held and owned by the General Partner upon trust as an asset of the Partnership, and no Partner or Partners, individually or collectively, shall have any title to or beneficial interest in specific Partnership Property or any portion thereof. Each Partner irrevocably waives any right that it may have to maintain an action for partition with respect to its interest in the Partnership or any Partnership Property.
- 20 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
Any Partnership Property may be held or registered in the name of the Partnership, the name of the General Partner, the name of any Affiliate of the General Partner, the name of a nominee, or in street name, as the General Partner may determine; provided that (a) any Partnership Property for which legal title is held in the name of the General Partner or an Affiliate of the General Partner shall be held by the General Partner or such Affiliate on behalf of the General Partner for the use and benefit of the Partnership in accordance with the provisions of this Agreement and (b) Partnership Property shall be recorded as the property of the Partnership on the Partnerships books and records, irrespective of the name in which legal title to such Partnership Property is held. Any corporation, brokerage firm or transfer agent called upon to transfer any assets to or from the name of the Partnership shall be entitled to rely upon instructions or assignments signed or purporting to be signed by the General Partner or its agents without inquiry as to the authority of the person signing or purporting to sign such instruction or assignment or as to the validity of any transfer to or from the name of the Partnership.
ARTICLE IX
RECORDS AND ACCOUNTING; REPORTS; CONFIDENTIAL INFORMATION 9.1. Partnership Records.
(a) The General Partner shall cause the Partnership to maintain complete and accurate books and records of the business of the Partnership. (b) Each Partner or its duly authorized representative shall have the right, subject to the provisions of Section 9.1(c) and such other reasonable standards as may be established from time to time by the General Partner (including standards governing what information and documents are to be furnished at what time and location and at whose expense), to obtain from the General Partner from time to time upon reasonable demand (which demand shall be in writing and shall state the purpose thereof) for any purpose reasonably related to such Partners interest as a Partner: (i) true and full information regarding the status of the business and financial condition of the Partnership; (ii) promptly after becoming available, a copy of any U.S. federal, state and local income tax returns of the Partnership for each Fiscal Year, if any; (iii) a copy of this Agreement and the Certificate and any amendment and/or restatement hereof or thereof, together with executed copies of any written powers of attorney pursuant to which this Agreement or the Certificate or any amendment and/or restatement hereof or thereof has been executed; and (iv) such other information regarding the affairs of the Partnership as is just and reasonable in the discretion of the General Partner. (c) Notwithstanding anything in this Agreement to the contrary, the Limited Partners understand and agree that the General Partner shall have the right to keep confidential from the Limited Partners, for such period of time as the General Partner deems reasonable, any information which the General Partner reasonably believes to be in the nature of trade secrets or other information the disclosure of which the General Partner in good faith believes is not in the best interests of the Partnership or could damage the Partnership or its business or which the Partnership is required by law or by agreement with a third party to keep confidential. (d) Each Limited Partner agrees that it will not disclose (and shall require its representatives to forebear from disclosing) to third parties any information of a proprietary nature which is obtained by such Limited Partner pursuant to the provisions of this Section 9.1.
- 21 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
9.2.
Fiscal Year; Accounting Period; Accounting Methods.
(a) The Fiscal Year of the Partnership shall end on December 31 of each year, unless the General Partner determines otherwise. (b) An Accounting Period shall (i) begin on the day after the close of the preceding Accounting Period and (ii) end on the earlier of the close of each calendar month, the effective date of any resignation or expulsion from the Partnership of a Partner, the effective date of any Transfer of a Partnership Interest or such other day as may be determined by the General Partner. (c) The Partnership shall keep its books and records in accordance with the provisions of this Agreement under the accrual method of accounting, and, as to matters not specifically covered in this Agreement, in accordance with GAAP. The General Partner may also have the financial statements prepared in accordance with GAAP, in order to avoid a qualification, and then reconciled with the Partnerships amortization of organizational and offering expenses. The General Partner may make adjustments to conform to current or future GAAP for financial reporting purposes. All matters concerning accounting practices not specifically and expressly provided for by the provisions of this Agreement shall be determined by the General Partner in good faith. Absent bad faith or manifest error, the General Partners valuation determinations are conclusive and binding on all Limited Partners, and in any event may not be challenged after the next annual audit.
9.3.
Expense Accruals; Reserves.
(a) For purposes of determining the amount of the Partnerships liabilities, the General Partner may estimate expenses that are incurred on a regular or recurring basis over yearly or other periods and treat the amount of any such estimate as accruing in equal proportions over any such period. (b) The General Partner may determine to establish such reserves for the Partnership for contingent, unknown or unfixed debts, liabilities or obligations of the Partnership as the General Partner may reasonably deem advisable, as well as for any required tax withholdings, whether or not such reserves are required by GAAP (Reserves). Amounts withheld for taxes, as well as taxes paid by the Partnership attributable to a Limited Partner or to such Limited Partners failure to provide the information described herein will be treated as distributions to such Limited Partner for purposes of the calculations described in Section 6.2.
9.4.
Reports.
As soon as reasonably practicable after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2011, the General Partner shall cause to be delivered to each Partner a report on the Partnerships operations during such year prepared in accordance with GAAP (subject to Section 9.2(c)). Such report shall include an audited balance sheet of the Partnership as of the end of such Fiscal Year and audited statements of income and changes in financial position of the Partnership for such Fiscal Year. 9.5. Tax Returns.
(a) The General Partner shall cause all necessary U.S. federal, state and local income tax returns for the Partnership to be prepared and timely filed (subject to the General Partners discretion to obtain extensions) with the appropriate authorities. The General Partner, in its sole and absolute discretion, shall determine the accounting methods and conventions under the tax laws of the United - 22 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
States, the several states and other relevant jurisdictions as to the treatment of items of income, gain, deduction, loss and credit or any other method or procedure related to the preparation of such tax returns. In addition, the General Partner, in its sole and absolute discretion, may cause the Partnership to make (or refrain from making) any and all tax elections permitted by such tax laws, including the election referred to in Section 754 of the Code.
(b) As soon as reasonably practicable after the end of each Fiscal Year, the General Partner shall cause to be delivered to each Partner such tax information and schedules as shall be necessary for the preparation by each such Person of its U.S. federal income tax return (it being understood and agreed that the tax returns of the Partnership may be delayed so that it may be necessary for the Partners to obtain extensions for the filing of their own tax returns). (c) Each Partner agrees in respect of any year in which such Partner had an investment in the Partnership that, unless otherwise agreed by the General Partner, such Partner shall not: (i) treat, on its individual tax returns, any item of income, gain, loss, deduction or credit relating to such investment in a manner inconsistent with the treatment of such item by the Partnership, as reflected on the Schedule K-1 or other information statement furnished by the Partnership to such Partner; or (ii) file any claim for refund relating to any such item based on, or which would result in, any such inconsistent treatment. (d) The General Partner is hereby appointed the Tax Matters Partner of the Partnership for all purposes pursuant to Sections 6221-6231 of the Code.
9.6.
Confidential Information.
In connection with the organization of the Partnership and its ongoing business, the Limited Partners may receive or have access to confidential proprietary information concerning the Partnership including, without limitation, portfolio positions, valuations, information regarding potential investments, financial information and trade secrets (the Confidential Information), which is proprietary in nature and non-public. Without the prior written consent of the General Partner, none of the Limited Partners or any of its affiliates shall disclose or cause to be disclosed any Confidential Information to any person nor use any Confidential Information for its own purposes or its own account, except (i) to its underlying investors, (ii) in monitoring its investment in the Partnership and exercising its rights hereunder and (iii) as otherwise required by any regulatory authority, law or regulation, or by legal process. Notwithstanding anything in this Agreement, the Limited Partners (and any employee, representative or other agent of such Limited Partner) and the General Partner (and any employee, representative or other agent of the General Partner) may disclose to any and all persons, without limitation of any kind, the U.S. federal and state tax treatment and the U.S. federal and state tax structure of the transactions and all materials of any kind (including opinions or other tax analyses) that are provided to such person relating to such tax treatment and tax structure. This authorization of tax disclosure is retroactively effective to the commencement of discussions between the Partnership or its representatives and the Limited Partner regarding the transactions contemplated herein.
ARTICLE X
EXCULPATION AND INDEMNIFICATION 10.1. Exculpation.
(a) Notwithstanding anything to the contrary set forth in this Agreement, to the extent that, at law or in equity, any General Partner Party has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or any Partner, such General Partner Party shall not be liable - 23 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
for monetary or other damages to the Partnership or such Partner for such General Partner Partys good faith reliance on the provisions of this Agreement or for Losses sustained or liabilities incurred by the Partnership or such Partner as a result of: (i) errors in judgment on the part of such General Partner Party, or of any act or omission of such General Partner Party, if such General Partner Party acted without fraud, bad faith, gross negligence (as that term is construed under Delaware law) or willful misconduct; (ii) errors in judgment on the part of any Person, or of any act or omission of any Person, selected by such General Partner Party to perform services for the Partnership (including any general partner and/or investment adviser of and any other service provider to any collective or commingled investment vehicle in the Partnership directly or indirectly invests), provided that, in selecting such Person, such General Partner Party acted without fraud, bad faith, gross negligence (as that term is construed under Delaware law) or willful misconduct; (iii) trade errors, provided that the General Partner Party acted without fraud, bad faith, gross negligence (as that term is construed under Delaware law) or willful misconduct; (iv) circumstances beyond such General Partner Partys control, including the bankruptcy, insolvency or suspension of normal business activities of any bank, brokerage firm or transfer agent holding the Partnerships assets; provided that the General Partner Party acted without fraud, bad faith, gross negligence or willful misconduct; or (v) failure to obtain the lowest negotiated brokerage commission rates, or to combine or arrange orders so as to obtain the lowest brokerage commission rates, with respect to any transaction on behalf of the Partnership, or failure to recapture, directly or indirectly, any brokerage commissions for the benefit of the Partnership, if such failure was not the result of fraud, bad faith, gross negligence or willful misconduct.
(b) Each General Partner Party shall be fully protected in relying in good faith upon the books and records of the Partnership and upon such information, opinions, reports or statements presented to the Partnership by any of its Partners, officers or agents (including legal counsel, accountants, auditors, appraisers, investment bankers and other independent experts) as to matters such General Partner Party reasonably believes are within such other Persons professional or expert competence and who has been selected with reasonable care by or on behalf of the Partnership, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Partnership or any other facts pertinent to the existence and amount of assets from which distributions to Partners might properly be made. (c) Notwithstanding the foregoing, no exculpation of a General Partner Party shall be permitted hereunder to the extent such exculpation would be inconsistent with the requirements of the U.S. Securities Laws or any other applicable law.
10.2.
Indemnification.
(a)
To the fullest extent permitted by law, the Partnership shall indemnify each General Partner Party (each, for purpose of this Article XI, an Indemnitee) from and against any and all Losses, except to the extent that it is finally adjudicated that an act or omission of the Indemnitee was material to the matter giving rise to such Losses and was committed by such Indemnitee with fraud, bad faith, willful misconduct or gross negligence (as that term is construed under Delaware law). The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 10.2(a).
(b) Reasonable expenses incurred by an Indemnitee who is a party or witness in a proceeding shall be paid or reimbursed by the Partnership in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by such Indemnitee of such Indemnitees good faith belief that the standard of conduct necessary for indemnification by the Partnership, as authorized in this Section 10.2, has been met and (ii) a written undertaking by or on behalf
- 24 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
of such Indemnitee to repay the amount paid or reimbursed if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified hereunder. The indemnification provided by this Section 10.2 shall be in addition to any other rights to which a General Partner Party may be entitled under any agreement, as a matter of law or otherwise, and shall continue as to a General Partner Party who has ceased to serve in such capacity and shall also be for the benefit of such General Partner Partys Successors, but shall not be deemed to create any rights for the benefit of any other Persons; provided that this Section 10.2(c) shall not be construed to entitle any Indemnitee to receive any amount under the provisions of this Article XI in respect of any Losses paid or incurred by such Indemnitee to the extent that, after giving effect to the receipt of such amount and the receipt by such Indemnitee of any other payments in respect of such Losses, from whatever source or sources, such Indemnitee shall have recovered an aggregate amount in excess of such Losses.
(c) (d) Notwithstanding the foregoing, no indemnification of a General Partner Party shall be permitted hereunder to the extent such indemnification would be inconsistent with the requirements of the U.S. Securities Laws or any other applicable law.
The Partnership may purchase and maintain insurance, on behalf of any one or more General Partner Parties, against any liability that may be asserted against or expenses that may be incurred by them in connection with the activities of the Partnership, regardless of whether the Partnership would have the power to indemnify any such General Partner Party against such liability under the provisions of this Agreement.
(e) (f) An Indemnitee shall not be denied indemnification in whole or in part under this Section 10.2 solely because the Indemnitee had an interest in the transaction with respect to which the indemnification applies.
10.3. Notification of Claims. If a General Partner Party believes that it is entitled to indemnification under this Article XI, such General Partner Party shall promptly give Notification to the Partnership describing such claim for indemnification, the amount thereof, if known, and the method of computation, all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which such claim shall have occurred; provided that the omission by such General Partner Party to give Notification as provided herein shall not relieve the Partnership of its indemnification obligation under this Article XI except to the extent that the Partnership is materially damaged as a result of such failure to give Notification. Any General Partner Party entitled to indemnification hereunder shall use its reasonable best efforts to minimize the amount of any claim for indemnification hereunder. 10.4. Third Party Claims. In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third party, the Indemnitee or Indemnitees claiming such indemnification shall give Notification thereof to the Partnership not later than twenty (20) Business Days prior to the time any response to the asserted claim is required, if possible, and in any event within fifteen (15) Business Days following the date such Indemnitee has actual knowledge thereof; provided that the omission by such Indemnitee or Indemnitees to give Notification as provided herein shall not relieve the Partnership of its indemnification obligation under this Article XI except to the extent that the Partnership is materially damaged as a result of such failure to give Notification. In the event of any such claim for indemnification by an Indemnitee or Indemnitees resulting from or in connection with a claim or legal proceeding by a third party, the Partnership may, at its sole cost and expense, assume the defense thereof; provided that counsel for the Partnership, who shall conduct the defense of such claim or legal proceeding, shall be reasonably satisfactory to such Indemnitee or Indemnitees; and provided,
- 25 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
further, that if the defendants in any such actions include both such Indemnitee or Indemnitees and the Partnership, and such Indemnitee or Indemnitees shall have reasonably concluded that there may be legal defenses or rights available to it or them which have not been waived and are in actual or potential conflict with those available to the Partnership, such Indemnitee or Indemnitees shall have the right to select one law firm reasonably acceptable to the Partnership to act as separate counsel, on behalf of such Indemnitee or Indemnitees, at the expense of the Partnership. Unless such Indemnitee or Indemnitees are represented by separate counsel pursuant to the second proviso of the immediately preceding sentence, if the Partnership assumes the defense of any such claim or legal proceeding, it shall not consent to entry of any judgment, or enter into any settlement, that (a) is not subject to indemnification in accordance with the provisions in this Article XI, (b) provides for injunctive or other non-monetary relief affecting such Indemnitee or Indemnitees or (c) does not include as an unconditional term thereof the giving by each claimant or plaintiff to such Indemnitee or Indemnitees of a release from all liability with respect to such claim or legal proceeding, without the prior written consent of such Indemnitee or Indemnitees (which consent, in the case of clauses (b) and (c), shall not be unreasonably withheld or delayed); and provided further, that, unless such Indemnitee or Indemnitees is or are represented by separate counsel pursuant to the second proviso of the immediately preceding sentence, such Indemnitee or Indemnitees may, at its or their own expense, participate in any such proceeding with the counsel of their choice. So long as the Partnership is in good faith defending such claim or proceeding, such Indemnitee or Indemnitees shall not compromise or settle such claim or proceeding without the prior written consent of the General Partner, which consent shall not be unreasonably withheld or delayed. If the Partnership does not assume the defense of any such claim or litigation in accordance with the provisions hereof, such Indemnitee or Indemnitees may defend against such claim or litigation in such manner as it or they may deem appropriate, including settling such claim or litigation (after giving prior Notification of the same to the Partnership and obtaining the prior written consent of the General Partner, which consent shall not be unreasonably withheld or delayed) on such terms and subject to such conditions as such Indemnitee or Indemnitees may deem appropriate, and the Partnership will promptly indemnify such Indemnitee or Indemnitees in accordance with the provisions of this Article XI. 10.5. Trading Errors. All risks relating to transactions ordered by the Investment Manager on behalf of the Partnership (including any trading or system error that has occurred in good faith) shall be borne by the Partnership as principal and, accordingly, all gains or losses accruing shall belong to or be borne by the Partnership; provided that, if a trading error resulting in losses is due to an action or omission of a General Partner Party not meeting the standard of conduct set forth in Section 10.1, such loss shall be borne by such General Partner Party. 10.6. Limit on Liability of Limited Partners. The indemnification set forth in this Article XI shall in no event cause the Limited Partners to incur any personal liability, nor shall it result in any liability of the Limited Partners to any third party.
ARTICLE XI
AMENDMENT; CONSENTS FOR OTHER PURPOSES 11.1. Amendments Not Requiring Consent of Limited Partners. Subject to the provisions of Sections 11.2 and 11.4:
(a) The General Partner, without obtaining the authorization or approval of any Limited Partner and without giving prior Notification to any Limited Partner, may amend this Agreement at any time and from time to time, whether by changing any one or more of the provisions hereof, removing any one or more provisions herefrom, or adding one or more provisions hereto, to the extent necessary, in the reasonable judgment of the General Partner, to:
- 26 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(i)
cause the provisions of Article V to comply with the provisions of Section 704 of the Code and the Treasury Regulations thereunder; otherwise cause the provisions of this Agreement to comply with any requirement, condition or guideline contained in any order, directive, opinion, ruling or regulation of a U.S. federal or state agency or contained in U.S. federal or state law or any requirement of Cayman Islands law or regulation; ensure the Partnerships continuing classification as a partnership for U.S. federal income tax purposes; prevent the Partnership from being treated as a publicly traded partnership taxable as a corporation within the meaning of Section 7704 of the Code and the Treasury Regulations; prevent the assets of the Partnership from being treated for any purpose of ERISA or Section 4975 of the Code as assets of any employee benefit plan as defined in and subject to ERISA or of any plan as defined in and subject to Section 4975 of the Code (or any corresponding provisions of succeeding law); prevent the Partnership from being required to register as an investment company under the Investment Company Act or otherwise violate the Investment Company Act; prevent the Partnership from engaging in a non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975(c) of the Code); add to the obligations of the General Partner for the benefit of the Partnership or the Limited Partners at no expense to the Partners or the Partnership; reflect the admission, substitution or termination of Partners after the date hereof in accordance with the provisions of this Agreement; cure any ambiguity in this Agreement or correct any provision in this Agreement that is manifestly incorrect; provide that any one or more Additional General Partners may possess and exercise any one or more of the rights, powers and authority of a General Partner hereunder; or conform to the Bankruptcy plan of reorganization of the Initial Limited Partner or to more fully reflect the terms of such plan.
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(b) Upon giving Notification to the Limited Partners, but without obtaining the authorization or approval of any Limited Partner, the General Partner may amend this Agreement at any time and from time to time, whether by changing any one or more of the provisions hereof, removing any one or more provisions herefrom, or adding one or more provisions hereto, for such purpose or purposes - 27 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
as the General Partner may deem necessary, appropriate, advisable or convenient; provided that, in the General Partners reasonable judgment, such amendment could not reasonably be expected to have a material adverse affect on the Partnership or any Limited Partner. 11.2. Amendments Requiring Consent; Consent of the Partnership.
(a) Subject to the provisions of Section 11.4, the General Partner may amend this Agreement at any time and from time to time, whether by changing any one or more of the provisions hereof, removing any one or more provisions herefrom, or adding one or more provisions hereto, in a manner that materially adversely affects or could reasonably be expected to have a material adverse effect on the Partnership or the Limited Partners; provided that the General Partner may not make any such amendment without (i) giving Notification to the Limited Partners, at least thirty (30) days prior to the implementation of such amendment, setting forth all material facts relating to such amendment and (ii) obtaining the Consent of the Partnership to such amendment prior to the implementation thereof. (b) A Limited Partner who is not a General Partner Party shall be deemed to approve any Consent Transaction if such Limited Partner either (i) affirmatively approves such Consent Transaction prior to the completion, consummation or implementation thereof or (ii) fails to give Notification to the Partnership of its objection to such Consent Transaction prior to the completion, consummation or implementation thereof. Any Limited Partner who is required to withdraw from the Partnership pursuant to the provisions of this Agreement prior to the completion, consummation or implementation of any Consent Transaction shall thereupon automatically cease to have any right to approve or withhold its approval of such Consent Transaction and shall not be considered a Limited Partner for purposes of determining whether the Consent of the Partnership has been obtained, notwithstanding that such Limited Partner may have objected to such Consent Transaction.
11.3. Waiver; Other Agreements. The General Partner has general authority to waive the provisions of this Agreement with respect to any Limited Partner or all Limited Partners either pursuant to a written agreement with such Limited Partner as contemplated below or otherwise; provided that any such waiver will not, in the good faith judgment of the General Partner, have a material adverse effect on the Partnership or the Limited Partners. The Partnership or the General Partner may from time to time enter into side letters or other written agreements with any Limited Partner (without the consent of any other person, including any other investor) providing for various preferential terms; provided that any such preferential terms will not, in the good faith judgment of the General Partner, have a material adverse effect on the Partnership or the Limited Partners. Unless otherwise agreed with a Limited Partner, none of the Partnership or the General Partner will be required to notify the other Limited Partners of any such letters or agreements or offer to the other Limited Partners the benefit of any provisions set forth therein. 11.4. Certain Amendments Requiring Consent of Affected Limited Partners. Notwithstanding any other provision of this Article XI, this Agreement may not be amended so as to: (i) modify the limited liability of a Limited Partner, without the consent of such Limited Partner; or (ii) materially reduce the participation of a Limited Partner in allocations made to such Limited Partners Capital Account or the distributions made by the Partnership to such Limited Partner as set forth herein, without the consent of such Limited Partner. 11.5. Consents for Other Purposes. The General Partner may from time to time determine to submit to the Partnership, for its approval, actions that are not required to be approved by the Partnership or the Limited Partners pursuant to the provisions of this Agreement. Any such action will be deemed to be approved by the Partnership if (a) no later than thirty (30) days prior to the proposed effectiveness of such action, the General Partner gives Notification to the Limited Partners describing such action in
- 28 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
reasonable detail, and (b) prior to the effectiveness of such action, the General Partner obtains the Consent of the Partnership to such action. 11.6. Amendments to Amendment Provisions, Notwithstanding anything contained herein, the General Partner shall not amend the provisions of this Article XI without obtaining the Consent of the Partnership; provided that the Partnership shall not amend Section 11.4 without the unanimous consent of the Limited Partners.
ARTICLE XII
DISSOLUTION AND WINDING UP 12.1. Events Causing Dissolution. The Partnership shall be wound-up and thereafter dissolved in accordance with Section 15(1) of the Partnership Law upon the first to occur of the following events and, except as otherwise required by applicable law, no other event shall cause the dissolution of the Partnership:
(a)
the Termination Date;
(b) the General Partner declares in writing that the Partnership shall be dissolved and gives Notification thereof to the Limited Partners;
subject to Section 7.3, the Bankruptcy of the General Partner; provided that no such Bankruptcy shall cause the dissolution of the Partnership if at the time of such Bankruptcy there is at least one other general partner of the Partnership and such other general partner carries on the business of the Partnership (it being understood and agreed that this Agreement shall be deemed to permit the business of the Partnership to be carried on by such other general partner in the event of the Bankruptcy of a General Partner) or a new general partner is appointed pursuant to Section 7.3; or
(c) (d)
the entry of a decree of judicial dissolution of the Partnership.
12.2. Winding Up. Immediately prior to the Partnership being dissolved pursuant to Section 12.1, it shall be wound up in the manner set forth below.
(a) The winding up of the Partnership shall be carried out by a liquidator (the Liquidator). The Liquidator of the Partnership shall be the General Partner or a Person selected by the General Partner. The Liquidator shall be considered an Indemnitee for purposes of Article XI.
In winding up the Partnership, the Liquidator shall possess full, complete and exclusive right, power and authority, in the name of and for and on behalf of the Partnership to do or take any one or more of the following things or actions, without affecting the liability of Partners and without imposing liability on the Liquidator (and shall, to the extent required by the Partnership Law or otherwise required by law, do or take the following things or actions):
(b) (i)
prosecute and defend suits, whether civil, criminal, administrative or investigative, and other claims, actions or proceedings; collect Partnership Properties, including debts, liabilities and obligations owed to the Partnership; gradually settle and close the business and affairs of the Partnership;
(ii)
(iii)
- 29 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(iv)
sell, retire or otherwise dispose of and convey Partnership Properties, and in connection therewith determine the timing, manner and terms of any such sale, retirement or other disposition, having due regard for the activity and condition of the relevant market and general financial and economic conditions; exercise all of the rights, powers and authority conferred upon the General Partner and on behalf of the General Partner under the provisions of this Agreement to the extent necessary, appropriate, advisable or convenient in the Liquidators reasonable judgment to perform its duties, responsibilities and obligations under this Article XII (it being understood and agreed that the exercise of any one or more of such rights, powers or authority shall not result in the Liquidator being deemed to be a general partner of the Partnership); pay, out of the proceeds of the sale, retirement or other disposition of Partnership Properties, all reasonable selling costs and other expenses (including the compensation of the Liquidator as provided in Section 12.3) incurred in connection with the winding up of the Partnership; (A) pay or make reasonable provision to pay all claims and obligations, including all contingent, conditional or unmatured contractual claims, known to the Partnership; (B) make such provision as will be reasonably likely to be sufficient to provide compensation for any claim against the Partnership which is the subject of a pending action, suit or proceeding to which the Partnership is a party; and (C) make such provision as will be reasonably likely to be sufficient to provide compensation for claims that have not been made known to the Partnership or that have not arisen but that, based on facts known to the Partnership, are likely to arise or to become known to the Partnership within ten (10) years after the date of dissolution or termination (any claims or obligations for which provision is so made by the Liquidator being referred to herein as Liquidation Reserves); distribute assets to creditors of the Partnership in accordance with the provisions of Section 12.4(a)(i); distribute any remaining assets to Partners and former Partners in accordance with the provisions of Sections 12.4(a)(ii) and 13.4(a)(iii); and prepare, execute, swear to, acknowledge, deliver, publish and file and record in the appropriate public offices, such certificates, instruments and other documents (including tax returns) that in the Liquidators reasonable judgment are necessary, appropriate, advisable or convenient under any applicable law, to effect the winding up of the Partnership.
(v)
(vi)
(vii)
(viii)
(ix)
(x)
12.3. Compensation of Liquidator. The Liquidator shall be entitled to receive reasonable compensation from the Partnership, but only from the Partnerships assets, for its services as liquidator.
- 30 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
12.4.
Distribution of Property and Proceeds of Sale Thereof.
(a) Upon completion of all desired sales, retirements and other dispositions of Partnership Property on behalf of the Partnership, the Liquidator shall distribute the proceeds of such sales, retirements and dispositions, and any Partnership Property that is to be distributed in kind, in the following order of priority: (i)
to pay or make reasonable provision for the payment (through the Liquidation Reserves) of the debts, liabilities and obligations of the Partnership to creditors of the Partnership, including, to the extent permitted by applicable law, Partners and former Partners who are creditors of the Partnership (other than (A) debts, liabilities and obligations in respect of which provision has already been made through the Liquidation Reserves and (B) liabilities for distributions to Partners and former Partners; to satisfy liabilities of the Partnership to Partners and former Partners for distributions; and to the Partners pro rata based on their Limited Partner Interest for which a complete distribution has not been made pursuant to Section 6.2.
(ii)
(iii)
(b) A Person who receives a distribution in violation of the Partnership Law shall be liable to the Partnership for the amount of such distribution if the Person had knowledge of such violation at the time of such distribution; provided that the Liquidator may compromise or waive any such liability on such terms and subject to such conditions as the Liquidator may determine.
All distributions required under Section 12.4(a) shall be made by the end of the Fiscal Year in which the completion of the winding up of the Partnership occurs or, if later, within ninety (90) days after the date of such completion.
(c) (d) If there are sufficient assets to satisfy the claims of all priority groups specified above, such claims shall be paid in full, and any such provision for payment shall be made in full. If there are sufficient assets to satisfy the claims of one or more but not all priority groups specified above, the claims of the highest priority groups that may be paid or provided for in full shall be paid or provided for in full, before paying or providing for any claims of a lower priority group. If there are insufficient assets to pay or provide for the claims of a particular priority group specified above, such claims shall be paid or provided for ratably to the claimants in such group to the extent of the assets available to pay such claims. (e) Amounts in the Liquidation Reserves shall be paid to creditors of the Partnership as set forth in Section 12.4(a)(i). Any amounts remaining in the Liquidation Reserves after such payments shall be paid as provided in Sections 12.4(a)(ii) and 13.4(a)(iii).
12.5. Final Audit. Within a reasonable time following the completion of the winding up of the Partnership (excluding, for purposes of this Section 12.5, the liquidation of the related Liquidation Reserves), the Liquidator shall furnish to each Partner a statement setting forth the assets and the liabilities of the Partnership as of the date of such completion and each Partners share of distributions pursuant to Section 12.4. 12.6. Deficit Capital Accounts. Notwithstanding anything to the contrary contained in this Agreement, and notwithstanding any custom or rule of law to the contrary, to the extent that the deficit, if
- 31 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
any, in any Partners Capital Account results from or is attributable to deductions and losses of the Partnership (including non-cash items such as depreciation), or distributions of money pursuant to this Agreement to Partners, upon termination of the Partnership such deficit shall not be an asset of the Partnership and such Partner shall not be obligated to contribute such amount to the Partnership to bring the balance of such Capital Account to zero.
ARTICLE XIII
MISCELLANEOUS 13.1. Construction and Governing Law.
(a) This Agreement contains the entire understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, arrangements, inducements or conditions, express or implied, oral or written, between or among any of the parties hereto with respect to the subject matter hereof. (b) All provisions of this Agreement, and all questions relating to (i) the validity, interpretation, application or enforcement of such provisions (including provisions that limit or restrict duties, including fiduciary duties, responsibilities, liabilities, obligations or actions), (ii) the duties, responsibilities, liabilities or obligations of the General Partner and/or the Partnership to any one or more Partners under this Agreement or the Partnership Law, (iii) the duties, responsibilities, liabilities or obligations of any one or more Partners to the General Partner and/or the Partnership under this Agreement or the Partnership Law, (iv) the duties, responsibilities, liabilities or obligations of any one or more Limited Partners to any one or more other Limited Partners under this Agreement or the Partnership Law, (v) the rights, powers or authority of, or limitations or restrictions on, the General Partner and/or the Partnership under this Agreement or the Partnership Law, and/or (vi) the rights, powers, authority, privileges or preferences of, or limitations or restrictions on, any one or more Partners under this Agreement or the Partnership Law, shall be governed by and construed and administered in accordance with the internal substantive laws of the Cayman Islands without regard to principles of conflict of laws. (c) In case any one or more of the provisions contained herein shall, for any reason, be found or held invalid, illegal or unenforceable in any respect in any jurisdiction, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions of this Agreement in that or any other jurisdiction, unless such a construction would be unreasonable. (d)
In applying the provisions of Sections 13.1(a), (b) and (c):

(i)
to the extent this Agreement modifies or nullifies any provision of the Partnership Law that would apply in the absence of such modification or nullification, as permitted by the Partnership Law (any such provision of the Partnership Law being referred to herein as a default provision), such modification or nullification shall apply in preference to such default provision; to the extent there is a direct conflict between the provisions of this Agreement and any provision of the Partnership Law that may not lawfully be modified or nullified by agreement among the parties, such provision of the Partnership Law shall control; and
(ii)
- 32 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(iii)
if the General Partner shall determine, with the advice of counsel, that any provision of this Agreement is in conflict with (A) the U.S. Securities Laws, (B) the Code or (C) other applicable laws, rules, regulations or orders, whether generally or in a particular application, the conflicting provision or such particular application thereof, as the case may be, shall not be deemed to constitute a part of this Agreement for so long as such conflict exists (provided that such determination shall not affect any of the remaining provisions of this Agreement or any lawful application of any provision, or render invalid or improper any action taken or omitted prior to such determination).
(e) In construing the meaning or application of the U.S. Securities Laws, the General Partner may consider the effect of any applicable order or interpretative release issued by the U.S. Securities and Exchange Commission, or any applicable no action or interpretative position issued by the staff of the U.S. Securities and Exchange Commission, that modifies or interprets the U.S. Securities Laws.
If any provision of this Agreement appears to the General Partner to be ambiguous or inconsistent with any other provision hereof, the General Partner may construe such provision in such manner as it reasonably may determine in good faith, and such construction shall be conclusive and binding as to the meaning to be given to such provision.
(f) (g) In each case where this Agreement contemplates that (i) a particular thing may not be done or a particular action may not be taken without the approval, agreement, vote or consent of one or more Persons, (ii) a Person may make a particular designation or determination or (iii) a Person may otherwise do or refrain from doing a particular thing or take or refrain from taking a particular action, such Person or Persons shall be free to give or withhold any such approval, agreement, vote or consent, to make any such designation or determination, to do or refrain from doing any such thing, or to take or refrain from taking any such action, in its or their sole and absolute discretion, except where this Agreement expressly requires otherwise or as otherwise required by law. Without limiting the generality of the foregoing, in any case herein where it is provided that the General Partner shall or may take a particular action, do a particular thing or make a particular determination, and such case does not expressly provide for Limited Partner authorization or approval of such action, thing or determination, the General Partner shall possess full power and authority to take such action, to do such thing or to make such determination without obtaining any prior or subsequent authorization or approval of any Limited Partner (and the General Partner may take such action, do such thing or make such determination in its sole discretion on such terms and in such manner as it may deem appropriate, unless the context requires otherwise), unless otherwise required by law. (h) Each reference in this Agreement to a particular statute or regulation, or provision thereof, shall be deemed to refer to such statute or regulation, or provision thereof, or to any superseding statute or regulation, or provision thereof, as is from time to time in effect, as well as to applicable regulations thereunder.
In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and holidays; provided that if the final day of any time period falls on a Saturday, Sunday or holiday on which national banks are or may elect to be closed in New York, New York, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or such holiday.
(i)
- 33 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
(j) Except as otherwise stated in this Agreement, references in this Agreement to Articles and Sections are to Articles and Sections of this Agreement.
The headings to Articles and Sections are for convenience of reference only and shall not form part of or affect the meaning or interpretation of this Agreement.
(k) (l) Where appropriate, each definition and pronoun in this Agreement includes the singular and the plural, and reference to the neuter gender includes the masculine and feminine, and vice versa. (m) As used in this Agreement, the word including shall mean including without limitation, the word or is not exclusive, and the words herefrom, herein, hereof, hereto, and hereunder refer to this Agreement as a whole. (n) The express provisions hereof control and supersede any course of performance or usage of the trade inconsistent with any of the provisions hereof.
13.2. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories. Any instrument or other document in writing that has been duly executed by or on behalf of a Person in which such Person has agreed with the General Partner and the existing Limited Partners to be bound hereby as a Limited Partner shall be considered a counterpart for purposes of the foregoing. 13.3. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties (and Indemnitees as provided under Article X) and their respective Successors. 13.4. Offset. Whenever the Partnership is to pay any sum to any Partner, any amounts such Partner owes to the Partnership may be deducted from that sum before payment. 13.5. Remedies for Breach; Effect of Waiver or Consent. A waiver or consent, express or implied, of or to any breach or default by any Person in the performance by that Person of his duties, responsibilities or obligations with respect to the Partnership is not a consent to or waiver of any other breach or default in the performance by that Person of the same or any other duties, responsibilities or obligations of that Person with respect to the Partnership. Failure on the part of a Person to complain of any act of any other Person or to declare any other Person in default with respect to the Partnership, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute-of-limitations period has run. 13.6. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Limited Partner shall, promptly upon the request of the General Partner and at the expense of the Partnership: (i) execute and deliver, or cause to be executed and delivered, such additional instruments, certificates and other documents; (ii) make, or cause to be made, such additional filings, recordings and publishings; (iii) provide, or cause to be provided, such additional information; and (iv) do, or cause to be done, such further acts and things, in each case as may reasonably be determined by the General Partner to be necessary, appropriate, advisable or convenient to carry out the intent and purpose of this Agreement and as are not inconsistent with the provisions hereof. Without limiting the generality of the foregoing, each Limited Partner shall, promptly upon the request of the General Partner, execute and deliver or cause to be executed and delivered such certificates, instruments and other
- 34 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
documents, and make or cause to be made such filings, recordings and publishings, as the General Partner reasonably determines to be necessary, appropriate, advisable or convenient to comply with the requirements for the operation of the Partnership as a Cayman Islands exempted limited partnership under the Partnership Law and the qualification of the Partnership to do business in any jurisdiction in which the Partnership owns property or conducts business.
- 35 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Desc
IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated Limited Partnership Agreement as a deed on the date first above written.
General Partner: Z-CDO Liquidation Fund GP, L.L.C. As general partner of the Partnership
By: Anchorage Capital, L.L.C., its Managing Member By: Anchorage Capital Management, L.L.C., its Managing Member
By:
______________________________ Name: [________] Title: Managing Member
Initial Limited Partner: Zais Investment Grade Limited VII By: ________________________
Witnessed by: ____________________
Witnessed by: ____________________
- 36 NEWYORK 8029113 v6 (2K)
Case 11-20243-RTL
Doc 38-5 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit E Page 1 of 10
Desc
PLAN EXHIBIT E FORM OF NEWCO INVESTMENT MANAGEMENT AGREEMENT
Case 11-20243-RTL
Desc
INVESTMENT MANAGEMENT AGREEMENT THIS INVESTMENT MANAGEMENT AGREEMENT, dated as of [____] [__], 2011 (the Agreement), is by and between Z-CDO Liquidation Fund, L.P., a Cayman Islands exempted limited partnership (the Partnership), and Anchorage Capital Group, L.L.C., a Delaware limited liability company (the Investment Manager). WITNESSETH: WHEREAS, the terms and conditions of the Partnership are set forth in the Limited Partnership Agreement dated as of [____] [__], 2011 (as the same may be amended, modified or supplemented from time to time, the Partnership Agreement); and WHEREAS, pursuant to the Partnership Agreement, the Partnership is authorized to appoint and enter into a contract with the Investment Manager to provide certain administrative and management services to the Partnership as set forth herein. NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. Appointment. Pursuant to the Partnership Agreement, the Partnership hereby appoints the Investment Manager to act as investment manager in respect of the Partnership for the period and on the terms set forth in this Agreement. The Investment Manager accepts such appointment and agrees to render and be responsible for the services herein set forth. To the extent that any provisions of this Agreement are inconsistent with any provisions of the Partnership Agreement, the provisions of the Partnership Agreement shall control. 2. Defined Terms. Capitalized terms in this Agreement, unless otherwise defined, have the meanings ascribed to them in the Partnership Agreement. 3. Authority of the Investment Manager. (a) The Investment Manager shall manage the Partnership Property including the disposition thereof and execution of agreements relating thereto, in accordance with the Partnerships Partnership Agreement. Subject to the foregoing, the authority granted hereby to the Investment Manager includes the power to: (i) Determine from time to time the timing, manner and price to liquidate the Partnership Property, what contracts will be entered into by the Partnership and what portion of the proceeds of liquidation of Partnership Property will be invested in cash equivalents or held uninvested as cash; (ii) Do any and all acts and exercise all rights, powers, privileges and other incidents of ownership or possession with respect to the Partnership Property or assets held or owned by the Partnership, including, without limitation, the right to possess, lend, transfer, mortgage, pledge or otherwise deal in, and secure the payment of obligations of the Partnership by mortgage upon, or hypothecation or pledge of, all or part of the Partnership Property, whether at the time owned or thereafter acquired and to participate in arrangements with creditors, institute and settle or compromise suits and administrative proceedings and other similar matters, all in accordance with the Partnership Agreement;
NEWYORK 8020417 (2K)
Case 11-20243-RTL
Desc
(iii) For purposes of the investment of part or the entire Partnership Property in cash equivalents, open, maintain and close accounts with brokers, which power shall include the authority to issue all instructions and authorizations to brokers regarding securities and money therein and to pay, or authorize the payment and reimbursement of, brokerage commissions, which may be in excess of the lowest rates available, which are paid to brokers who execute transactions for the account of the Partnership and who supply or pay the cost of research and brokerage services; provided, that it determines in good faith that such amount of commission is reasonable in relation to the value of the brokerage and research services provided by such broker, viewed in terms of either that particular transaction or its overall responsibilities with respect to the accounts as to which it exercises investment discretion, and that such services would benefit the Partnership and that such services are consistent with Section 28(e) of the Securities Exchange Act of 1934, as amended; (iv) Do any and all acts on behalf of the Partnership and exercise all rights of the Partnership with respect to its interest in any person, firm, corporation or other entity, including without limitation the voting of securities, the institution and settlement or compromise of suits and administrative proceedings and other similar matters; (v) Open, maintain and close bank accounts and draw checks or other orders for the payment of monies; (vi) Organize one or more entities to hold or liquidate the Partnership Property and in that regard the Investment Manager or an affiliate thereof may serve as an advisor to such entities; (vii) Authorize any partner, director, officer, employee or other agent of the Investment Manager or agent or employee of the Partnership to act for and on behalf of the Partnership in all matters incidental to the foregoing; (viii) Borrow monies from brokers, banks, and any other parties, which may include the Investment Manager, its respective affiliates or other funds managed by the Investment Manager, including to cover expenses and make distributions, raise monies or utilize any other forms of leverage, issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or nonnegotiable instruments and evidences of indebtedness, and grant or issue guarantees, all in accordance with the Partnership Agreement; and (ix) Do any other act that the Investment Manager deems necessary or advisable in connection with the implementation of the Partnerships investment objectives to liquidate the Partnership Property. (b) The liquidation of Partnership Property shall be exclusively within the control and discretion of the Investment Manager. (c) The Investment Manager may perform its obligations hereunder itself or through its affiliates, which may serve as sub-advisors so long as no fees are payable under this
-2-
Case 11-20243-RTL
Desc
agreement. If the Investment Manager is to provide the Partnership with any service under this Agreement through affiliates, the identity of such affiliates shall be provided to the Partnership. (d) Notwithstanding any other provision set forth herein, the Investment Manager shall have no right to withdraw or possess any funds or securities from any account of the Partnership or derived from the liquidation of the Partnership Property except to transfer to another account held in the name of the Partnership or to a broker or counterparty of the Partnership. 4. Compensation; Expenses. (a) The Investment Manager shall not be paid any compensation for the services to be rendered by it hereunder. (b) The Investment Manager shall pay, without reimbursement by the Partnership, (i) all of its own overhead expenses incurred in managing the Partnership or otherwise, including, but not limited to, all costs and expenses on account of rent, supplies, postage and delivery, equipment, furniture, salaries, wages, bonuses and other employee benefits and (ii) all legal, accounting and other expenses (including attorneys fees) incurred in connection with the start-up and organization of the Investment Manager. (c) The Investment Manager is authorized to incur and pay in the name and on behalf of the Partnership all expenses that it deems necessary or advisable. The Partnership shall promptly pay or reimburse the Investment Manager for all costs and expenses associated with the conduct, management, business and liquidation of the Partnership Property, including, without limitation, all set-up costs, legal, accounting, investment and other professional services costs. 5. Delegation of Authority; Attorney-in-Fact. The Partnership hereby delegates to the Investment Manager all powers, duties and responsibilities with regard to the management, administrative and liquidation services to be provided to the Partnership as contemplated by Section 3 and hereby appoints the Investment Manager as the attorney-in-fact of the Partnership with full authority in the Partnerships name on behalf of the Partnership to perform the management, administrative and liquidation services described in Section 3. 6. Confidential Information. It is the essence of this Agreement that all information regarding the operation and liquidation of the Partnership and the Partnership Property shall be treated as strictly confidential by the parties hereto as required by law. 7. Other Activities of the Investment Manager. (a) The Investment Manager shall devote that amount of its time to the affairs of the Partnership that in its judgment the conduct of the Partnerships business, including the liquidation of the Partnership Property reasonably requires. (b) The parties hereto acknowledge that:
(i) the Investment Manager and its affiliates may act as investment manager, sponsor or general partner for other customers, accounts and pooled investment vehicles and may give advice, and take action, with respect to any of those customers, accounts
-3-
Case 11-20243-RTL
Desc
and pooled investment vehicles which may differ from the advice given, or the timing or nature of action taken, with respect to the Partnership; (ii) the Investment Manager, its affiliates and the members, partners, shareholders, officers, directors and employees thereof may engage in transactions or cause or advise other clients to engage in transactions which may differ from or be identical to the transactions advised upon or engaged in by the Investment Manager for the Partnerships account; and (iii) the Investment Manager shall not have any obligation to engage in any transaction for the Partnerships accounts or to recommend any transaction to the Partnership which any of the Investment Manager, its affiliates or any of the members, partners, shareholders, officers, directors or employees thereof may engage in for their own accounts or the account of any other customer, except as otherwise required by applicable law. (c) By reason of the investment advisory and other activities of the Investment Manager and its affiliates, the Investment Manager may acquire confidential information or be restricted from initiating transactions in certain securities. It is acknowledged and agreed that the Investment Manager shall not be free to divulge, or to act upon, any such confidential information with respect to the Investment Managers performance of its responsibilities under this Agreement and that, due to such a restriction, the Investment Manager may not initiate a transaction that the Investment Manager otherwise might have initiated. (d) Neither the Partnership nor any investor therein shall have the right to participate in any manner in any profits or income earned or derived by or accruing to the Investment Manager, its affiliates or the respective members, partners, directors, officers, employees or shareholders thereof from the conduct of any business other than the business of the Partnership or from any transaction in securities effected by the Investment Manager, its affiliates or the respective partners, members, directors, officers, employees or shareholders thereof for any account other than that of the Partnership. 8. Exculpation and Indemnification of the Investment Manager. (a) To the fullest extent permitted by law, none of the Investment Manager, its affiliates or the respective members, partners, officers, directors, employees, shareholders, agents and representatives thereof (collectively, the Covered Persons) shall be liable to the Partnership for (i) any losses due to any act or omission by any Covered Person in connection with the conduct of the business of the Partnership that is determined by the Covered Person in good faith to be in or not opposed to the best interests of the Partnership, unless that act or omission constitutes willful misconduct, bad faith or gross negligence, (ii) any losses due to any action or omission of the Partnership, its limited partner(s) or Z-CDO Liquidation Fund GP, L.L.C., a Delaware Limited Liability Company (the General Partner) or (iii) any losses due to any mistake, negligence, misconduct or bad faith of any broker or other agent of the Partnership selected by any Covered Person with reasonable care. To the extent that, at law or in equity, any Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Partnership, a Covered Person acting under this Agreement shall not be liable to the Partnership for its good faith reliance on the provisions of this Agreement.
-4-
Case 11-20243-RTL
Desc
(b) Neither the Investment Manager nor any Covered Person shall have any personal liability to the Partnership, any limited partner or the General Partner, any shareholder thereof by reason of any change in United States federal, state or local or non-U.S. income tax laws, or in interpretations thereof, as they apply to the Partnership, any limited partner or the General Partner, whether the change occurs through legislative, judicial or administrative action. (c) Any Covered Person may consult with legal counsel or accountants selected by it and any act or omission by it on behalf of the Partnership or in furtherance of the business of the Partnership in good faith in reliance on and in accordance with the advice of such counsel or accountants shall be full justification for such act or omission, and the Investment Manager shall be fully protected in so acting or omitting to act if the counsel or accountants were selected with reasonable care. (d) To the fullest extent permitted by law, the Partnership shall indemnify and save harmless the Covered Persons from and against any and all claims, liabilities, damages, losses, costs and expenses, including amounts paid in satisfaction of judgments, in compromises and settlements, as fines and penalties and legal or other costs and expenses of investigating or defending against any claim or alleged claim, of any nature whatsoever, known or unknown, liquidated or unliquidated, that are incurred by any Covered Person and arise out of or in connection with the business of the Partnership or the performance by the Covered Person of any of its responsibilities hereunder, provided, that a Covered Person shall be entitled to indemnification hereunder only if the Covered Person acted in good faith and in a manner the Covered Person believed to be in or not opposed to the best interests of the Partnership and the Covered Persons conduct did not constitute willful misconduct, bad faith or gross negligence. (e) Expenses incurred by a Covered Person in defense or settlement of any claim that may be subject to a right of indemnification hereunder shall be advanced by the Partnership prior to the final disposition thereof; provided, that, such expenses shall be advanced by the Partnership only upon the execution and delivery by the Covered Person of a recourse promissory note, in a principal amount equal to the amount of the requested advance, to the Partnership, having a payment date of 10 Business Days following the final disposition of the action, suit or proceeding with respect to which such advance is being requested, which note, if not made by a natural person, shall be unconditionally guaranteed in its entirety as to the payment of principal by natural persons who in the aggregate hold at least 80% of the beneficial economic interests in such Covered Person in order to secure the return, following final disposition of the action, suit or proceeding with respect to which such advance is being requested, of any amount which represents an advance of expenses for which the Covered Person is not entitled to indemnification under this Agreement. (f) Whenever in this Agreement a Person is permitted or required to make a decision (i) in its sole discretion, sole and absolute discretion or discretion or under a grant of similar authority or latitude, the Person shall be entitled to consider any interests and factors as it desires, including its own interests, or (ii) in its good faith or under another express standard, the Person shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.
-5-
Case 11-20243-RTL
Desc
(g) The right of any Covered Person to the indemnification provided herein shall be cumulative of, and in addition to, any and all rights to which such Covered Person may otherwise be entitled by contract or as a matter of law or equity and shall extend to such Covered Persons successors, assigns and legal representatives. (h) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 8 shall not be construed so as to relieve (or attempt to relieve) any Covered Person of any liability (including liability under the Federal securities laws which, under certain circumstances, impose liability even on persons that act in good faith) to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law, but shall be construed as to effectuate the provisions of this Section 8 to the fullest extent permitted by law. 9. Custodian. The securities owned by the Partnership will be held by one or more banks or brokers as the Investment Manager shall select, subject to the provisions of Section 3 hereof. The Investment Manager shall provide the Partnerships custodian as required with information relating to all transactions concerning the assets belonging to the Partnership. 10. Term and Termination. (a) This Agreement shall commence as of the date first set forth above and shall continue in force and effect until the first of the following occurs: (i) the liquidation of the Partnership Property and the final distribution of the proceeds of such liquidation pursuant to the Partnership Agreement, or (ii) the resignation by the Investment Manager upon sixty (60) days prior written notice (or such shorter period as is acceptable to the Partnership) to the Partnership. (b) In the event of termination, the provisions of Section 8, as well as this Section 10, shall survive. (c) Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. 11. Assignment. Except as contemplated in Section 3 hereof with respect to delegation by the Investment Manager of its obligations hereunder to third parties, each party hereto may assign this Agreement only with the consent of the other parties hereto. 12. Independent Contractor Status. The Investment Manager shall for all purposes be an independent contractor and not an agent or employee of the Partnership, and the Investment Manager shall have no authority to act for, represent, bind or obligate the Partnership except as specifically provided herein. This Agreement shall not be construed for any purposes to create any joint venture or partnership among the parties hereto. 13. Nonexclusivity. Nothing in this Agreement shall limit or restrict the right of the Investment Manager to engage in any other business or to render services of any kind to any other corporation, firm, individual or association. 14. Notices. (a) All notices, demands, requests or other communications contemplated by any provision of this Agreement must be in writing, and shall be made by hand delivery, certified mail, Federal Express or a similarly reputable overnight courier service,
-6-
Case 11-20243-RTL
Desc
facsimile or other electronic means to Z-CDO Liquidation Fund, L.P., c/o Anchorage Capital Group, L.L.C., 610 Broadway, 6th Floor, New York, New York 10012, Attn: Anne-Marie Kim, Fax No. (212) 432-4601, Email: akim@anchoragecap.com, but any party may designate a different address by a notice similarly given to the other party. (b) Any such notice or communication shall be deemed given: (i) when delivered by hand, if delivered on a business day; (ii) the next business day after delivery by hand if delivered by hand on a day that is not a business day; (iii) four business days after being deposited in the United States mail by certified mail; (iv) on the next business day after being deposited for next day delivery with Federal Express or by a similar reputable overnight courier service; (v) when receipt is confirmed, if faxed or delivered by other electronic means on a business day; and (vi) the next business day after the day on which receipt is confirmed, if faxed or delivered by other electronic means on a day that is not a business day. 15. Miscellaneous. (a) This Agreement may be amended only upon the written consent of all parties hereto; provided, that any consent required to be obtained pursuant to the Partnership Agreement or the limited liability company agreement of the Investment Manager have been obtained; and, provided, further, that the Investment Manager may amend the provisions of this Agreement with respect to any issue, without the consent of the Partnership, to the extent necessary to comply with any applicable regulatory requirements, so long as any such amendment is not material and adverse to the Partnership. (b) This Agreement contains the entire agreement between the parties hereto.
(c) This Agreement shall be governed by and construed in accordance with the laws of the State of New York. (d) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING. (e) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
-7-
Case 11-20243-RTL
Desc
EACH PARTY TO THIS AGREEMENT HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED HEREIN. (f) This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. (g) If any term or provision hereof, or the application thereof to any person or circumstance, shall to any extent be contrary to any applicable exchange or government regulation or otherwise invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is contrary, invalid, or unenforceable shall not be affected thereby and, to the extent consistent with the overall intent hereof as evidenced by this Agreement taken as a whole, shall be enforced to the fullest extent permitted by applicable regulation and law. [Remainder of page intentionally left blank]
-8-
Case 11-20243-RTL
Desc
IN WITNESS WHEREOF, each of the Investment Manager and the Partnership has executed this Agreement as of the date first above written. Z-CDO Liquidation Fund L.P. By:______________________________ Name: Title: ANCHORAGE CAPITAL GROUP, L.L.C., a Delaware limited liability company By:______________________________ Name: Title:

In Re Zais Investment Grade Limited VII

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

In Re Zais Investment Grade Limited VII

Încărcat de

Drepturi de autor:

Formate disponibile

Case 11-20243-RTL

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 1 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 2 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 3 of 30

(c) (d) (e) (f) (g) (h) (i) (j) (k)

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 4 of 30

ARTICLE V. 5.1. 5.2.

ARTICLE VI. PLAN DISTRIBUTION PROVISIONS ...............................................................9

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 5 of 30

ARTICLE IX. THE PLAN ADMINISTRATOR........................................................................14

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 6 of 30

12.18. 12.19. 12.20. 12.21. 12.22.

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 7 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 8 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 9 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 10 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 11 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 12 of 30

Class 9 Income Note Claims.

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 13 of 30

Time for Filing Fee Claims.

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 14 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 15 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 16 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 17 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 18 of 30

Time Bar to Cash Payments.

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 19 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 20 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 21 of 30

THE PLAN ADMINISTRATOR 9.1. Powers and Duties.

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 22 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 23 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 24 of 30 ARTICLE XI.

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 25 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 26 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 27 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 28 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 29 of 30

Filed 05/18/11 Entered 05/18/11 11:43:18 Document Page 30 of 30

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 1 of 9

PLAN EXHIBIT A GLOSSARY OF DEFINED TERMS

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 2 of 9

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 3 of 9

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 4 of 9

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 5 of 9

Fee Claim means a Claim of a Professional Person.

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 6 of 9

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 7 of 9

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 8 of 9

Doc 38-1 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit A Page 9 of 9

Senior Noteholder means any holder of a Senior Note.

Doc 38-2 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit B Page 1 of 1

Doc 38-3 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit C Page 1 of 4

PLAN EXHIBIT C SCHEDULE OF DESIGNATED ASSETS

Doc 38-3 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit C Page 2 of 4

Doc 38-3 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit C Page 3 of 4

Doc 38-3 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit C Page 4 of 4

871928BU0 12493LBW1 98887BAN7

1,498,950 6,630,000 2,887,315

3-Oct-15 25-Jan-36 20-Nov-57

Doc 38-4 Filed 05/18/11 Entered 05/18/11 11:43:18 Exhibit D Page 1 of 39

PLAN EXHIBIT D FORM OF NEWCO LIMITED PARTNERSHIP AGREEMENT

Dated on [__] [], 2011