UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):

May 8, 2020 (May 5, 2020)

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Internap Corporation

(Exact Name of Registrant as Specified in Charter)

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Registrant’s telephone number, including area code: (404) 302-9700

Not applicable

(Former Name or Former Address, if Changed Since Last Report)

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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-2(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Securities registered pursuant to Section 12(b) of the Act:

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Item 1.03          Bankruptcy or Receivership.

Confirmation of the Plan

As previously disclosed, on March 16, 2020, Internap Corporation (“INAP”) and its affiliates Datagram LLC, Hosting Intellect LLC, Internap Connectivity LLC, SingleHop LLC, Ubersmith, Inc. and Internap Technology Solutions Inc. (collectively with INAP, the “Company”) filed voluntary petitions (the “Chapter 11 Cases”) in the United States Bankruptcy Court for the Southern District of New York, White Plains Division (the “Bankruptcy Court”) seeking relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). The Company’s Chapter 11 Cases are jointly administered under the caption In re Internap Technology Solutions Inc. et al.

 

On May 5, 2020, the Bankruptcy Court entered the Findings of Fact, Conclusions of Law, and Order (i) Approving Disclosure Statement, (ii) Confirming First Amended Joint Prepackaged Chapter 11 Plan of Internap Corporation and Its Affiliated Debtors and Debtors in Possession and (iii) Granting Related Relief (the “Confirmation Order”), which approved and confirmed the First Amended Joint Prepackaged Chapter 11 Plan of Internap Corporation and Its Affiliated Debtors and Debtors in Possession (the “Plan”).

 

The Company expects that the effective date of the Plan will occur as soon as all conditions precedent to the Plan have been satisfied (the “Effective Date”). Although the Company is expecting the occurrence of the Effective Date as soon as reasonably practicable, the Company can make no assurance as to when, or ultimately if, the Plan will become effective. It is also possible that amendments could be made to the Plan prior to the Effective Date.

 

Summary of Material Features of the Plan

The following is a summary of the material terms of the Plan. This summary highlights only certain substantive provisions of the Plan and is not intended to be a complete description of the Plan.  This summary is qualified in its entirety by reference to the full text of the Confirmation Order and the Plan, which are attached hereto as Exhibits 99.1 and 2.1 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.  Any capitalized terms not defined in this Current Report on Form 8-K have the meanings assigned to them in the Plan.

Treatment of Claims and Interests under the Plan

 

The Plan contemplates the following treatment of claims against and interests in the Company:

•

On the Effective Date, each holder of an Allowed Existing Loan Claim shall receive its pro rata share of (i) commitments under the New Term Loan Facility; and (ii) 100% of New Common Equity, subject to dilution by the Management Incentive Plan and the New Common Equity Warrants.

•

Except to the extent previously paid during the Chapter 11 Cases or such holder agrees to less favorable treatment, each holder of an Allowed General Unsecured Claim shall receive from each relevant Debtor, in full and final satisfaction, settlement, release, and discharge of, and in exchange for, each such claim, (i) payment equal to the allowed amount of such claim, in cash, as and when such claim becomes due and payable in the ordinary course of the applicable Debtor’s business or in accordance with applicable court order (plus any interest accrued after the Petition Date with respect to such claim to the extent required by law to render such claim unimpaired, as determined by the Debtors or ordered by the Bankruptcy Court), or (ii) such other treatment that renders such holder unimpaired.

•

All Existing Equity Interests will be cancelled, released, and extinguished as of the Effective Date, and holders of Existing Equity Interests shall not receive or retain any property under the Plan on account of such Existing Equity Interests. Notwithstanding the foregoing, each holder of Existing Equity Interests that (i) is a beneficial holder of INAP’s common stock as of the Effective Date and (ii) has executed an Existing Equity Release in accordance with the Existing Equity Notice Materials will, on or after the Effective Date, receive its pro rata share of the New Common Equity Warrants, which shall come from amounts that holders of Existing Term Loan Claims would otherwise be entitled to receive under the Plan.

Capital Structure

Pursuant to the Plan, as of the Effective Date INAP will be converted into a Delaware limited liability company (“Internap Holding LLC”) and will issue common units to certain holders of claims against and interests in the Company, and INAP’s shares of existing common stock outstanding immediately prior to the Effective Date will be cancelled. As of May 4, 2020, there were approximately 25,648,870 shares of INAP’s existing common stock outstanding.

 

Information regarding the assets and liabilities of the Company as of the most recent practicable date is hereby incorporated by reference to the Company’s Annual Report on Form 10-K for the period ended December 31, 2019, filed with the Securities and Exchange Commission on May 7, 2020.

Item 8.01          Other Events.

Trading in INAP’s Securities

Forward-Looking Statements

Certain statements in this Form 8-K contain "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are often identified by words such as "may," "will," "seeks," "anticipates," "believes," "estimates," "expects," "projects," "forecasts," "plans," "intends," "continue," "could" or "should," that an "opportunity" exists, that the Company is "positioned" for a particular result, statements regarding the Company’s vision or similar expressions or variations. These statements are based on the beliefs and expectations of the Company’s management team based on information available at the time such statements are made. Such forward-looking statements are not guarantees of future performance and are subject to risks and uncertainties that could cause actual results to differ materially from those contemplated by such forward-looking statements.

Therefore, actual future results and trends may differ materially from what is forecast in such forward-looking statements due to a variety of factors. These risks and other important factors discussed under the caption "Risk Factors" in the Company’s most recent Annual Report on Form 10-K filed with the SEC and the Company’s other reports filed with the SEC could cause actual results to differ materially from those expressed or implied by forward-looking statements made in this Form 8-K.

Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements as a prediction of actual results. All forward-looking statements attributable to the Company or persons acting on the Company’s behalf are expressly qualified in their entirety by the foregoing forward-looking statements. All such statements speak only as of the date made, and the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

Item 9.01          Financial Statements and Exhibits.

(d)

Exhibits

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Exhibit 2.1

	)
In re:	)	Chapter 11
	)
INTERNAP TECHNOLOGY SOLUTIONS INC.,	)	Case No. 20-22393 (RDD)
et al.	)
	)	Jointly Administered
Debtors.1	)
	)

ARTICLE I DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW				1
	A.	Defined Terms		1
	B.	Rules of Interpretation		16
	C.	Computation of Time		16
	D.	Governing Law		16
	E.	Reference to Monetary Figures		16
ARTICLE II ADMINISTRATIVE EXPENSES AND OTHER UNCLASSIFIED CLAIMS				17
	A.	General Administrative Expenses		17
	B.	Restructuring Expenses		17
	C.	Professional Fees		17
		1.	Final Fee Applications	17
		2.	Professional Fees Escrow Account	18
		3.	Post-Effective Date Fees and Expenses	18
	D.	DIP Facility Claims		19
	E.	Priority Tax Claims		19
ARTICLE III CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS				20
	A.	Classification of Claims and Interests		20
	B.	Treatment of Claims and Interests		20
		1.	Class 1 – Priority Non-Tax Claims	20
		2.	Class 2 – Other Secured Claims	21
		3.	Class 3 – Existing Loan Claims	21
		4.	Class 4 – General Unsecured Claims	22
		5.	Class 5 – Intercompany Claims	23
		6.	Class 6 – Intercompany Interests	23
		7.	Class 7 – Subordinated Claims	24
		8.	Class 8 – Existing Equity Interests	24
	C.	Special Provision Governing Unimpaired Claims		25
ARTICLE IV ACCEPTANCE OR REJECTION OF PLAN				25
	A.	Voting Classes		25
	B.	Presumed Acceptance of the Plan		25
	C.	Subordinated Claims		25
ARTICLE V MEANS FOR IMPLEMENTATION OF PLAN				26
	A.	General Settlement of Claims and Interests		26
	B.	Restructuring Transactions		26

	C.	Sources of Consideration for Plan Distributions		27
		1.	Cash	27
		2.	Working Capital Exit Facility	27
		3.	Priority Exit Facility	28
		4.	New Term Loan Facility	29
	D.	Corporate Existence		30
	E.	Vesting of Assets in the Reorganized Debtors		30
	F.	Cancellation of Loans, Securities, and Agreements		31
	G.	Corporate and Other Entity Action		32
	H.	New Common Equity Warrants — Fractional Distribution Provision		33
	I.	New Organizational Documents		33
	J.	Directors and Officers of Reorganized Debtors		33
		1.	Reorganized INAP Board	34
		2.	Officers of Reorganized Debtors	34
		3.	New Subsidiary Boards	34
	K.	Effectuating Documents; Further Transactions		34
	L.	Section 1146 Exemption		35
	M.	Management Incentive Plan		35
	N.	Releases of Avoidance Actions		35
	O.	Procedures for Treating Disputed Claims and Interests Under the Plan		35
		1.	Disputed Claims and Interests Process	35
		2.	No Distributions Pending Allowance	36
	.	3.	Distributions after Allowance	36
		4.	Estimation of Claims and Interests	36
	P.	Authorization and Issuance of New Common Equity and New Common Equity Warrants		37
ARTICLE VI TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES				37
	A.	Assumption of Executory Contracts and Unexpired Leases		37
	B.	Cure of Defaults for Executory Contracts and Unexpired Leases Assumed		38
	C.	Insurance Policies & Indemnification Obligations		39
	D.	Modifications, Amendments, Supplements, Restatements, or Other Agreements		39
	E.	Reservation of Rights		40
	F.	Contracts and Leases Entered into after Petition Date		40
	G.	Rejection Damages Claims		40
	H.	Compensation and Benefits Plans		40
	I.	Non-Occurrence of Effective Date		41
ARTICLE VII PROVISIONS GOVERNING DISTRIBUTIONS				41
	A.	Timing and Calculation of Amounts to Be Distributed		41
	B.	Disbursing Agent		41
	C.	Rights and Powers of Disbursing Agent		41
		1.	Powers of the Disbursing Agent	41

		2.	Incurred Expenses	41
	D.	Delivery of Distributions and Undeliverable or Unclaimed Distributions		42
		1.	Delivery of Distributions to Existing Credit Facility Agent	42
		2.	Delivery of Distributions in General	42
		3.	Minimum Distributions	42
		4.	Undeliverable Distributions and Unclaimed Property	43
	E.	Exemption from Securities Laws		43
	F.	Compliance with Tax Requirements		44
	G.	No Postpetition Interest on Claims and Interests		44
	H.	Setoffs and Recoupment		44
	I.	Claims Paid or Payable by Third Parties		45
		1.	Claims Paid by Third Parties	45
		2.	Claims Payable by Third Parties	45
		3.	Applicability of Insurance Policies	45
	J.	Allocation Between Principal and Accrued Interest		46
ARTICLE VIII SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS				46
	A.	Compromise and Settlement		46
	B.	Discharge of Claims and Termination of Interests		46
	C.	Release of Liens		47
	D.	Releases of Released Parties		47
		1.	Releases by the Debtors	47
		2.	Releases by Holders of Claims or Interests	48
	E.	Exculpation		49
	F.	Injunction		50
ARTICLE IX CONDITIONS TO CONFIRMATION AND EFFECTIVE DATE				50
	A.	Conditions to Effective Date		50
	B.	Waiver of Conditions		52
ARTICLE X MODIFICATION, REVOCATION OR WITHDRAWAL OF PLAN				52
	A.	Modification and Amendments		52
	B.	Effect of Confirmation on Modifications		52
	C.	Revocation or Withdrawal of Plan		52
ARTICLE XI RETENTION OF JURISDICTION				53
ARTICLE XII MISCELLANEOUS PROVISIONS				56
	A.	Immediate Binding Effect		56
	B.	Additional Documents		56
	C.	Payment of Statutory Fees		56
	D.	Reservation of Rights		56
	E.	Successors and Assigns		56

	F.	Notices	57
	G.	Term of Injunctions or Stays	58
	H.	Entire Agreement	59
	I.	Exhibits	59
	J.	Certain Consent Rights	59
	K.	Nonseverability of Plan Provisions	59
	L.	Votes Solicited in Good Faith	60
	M.	Closing of Chapter 11 Cases	60
	N.	Document Retention	60
	O.	Conflicts	60
	P.	Dissolution of Committees	60

C.	Computation of Time

D.	Governing Law

E.	Reference to Monetary Figures

A.	General Administrative Expenses

B.	Restructuring Expenses

C.	Professional Fees

D.	DIP Facility Claims

E.	Priority Tax Claims

A.	Classification of Claims and Interests

	Class		Claims or Interests		Status		Voting Rights
	1		Priority Non-Tax Claims		Unimpaired		Deemed to accept
	2		Other Secured Claims		Unimpaired		Deemed to accept
	3		Existing Loan Claims		Impaired		Entitled to vote
	4		General Unsecured Claims		Unimpaired		Deemed to accept
	5		Intercompany Claims		Unimpaired or Impaired		Deemed to accept or deemed to reject
	6		Intercompany Interests		Unimpaired or Impaired		Deemed to accept or deemed to reject
	7		Subordinated Claims		Impaired		Deemed to reject
	8		Existing Equity Interests		Impaired		Deemed to reject

B.	Treatment of Claims and Interests

a.

Classification:  Class 1 consists of all Allowed Priority Non-Tax Claims.  Although all Priority Non-Tax Claims have been placed in one Class for the purposes of nomenclature, the Priority Non-Tax Claims against each applicable Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.

b.

Treatment:  Except to the extent previously paid during the Chapter 11 Cases or such holder agrees to less favorable treatment, each holder of an Allowed Class 1 Claim shall (i) receive from each relevant Reorganized Debtor, in full and final satisfaction, settlement, release, and discharge of, and in exchange for, each such Claim, payment equal to the Allowed amount of such Claim, in Cash, on the later of the Effective Date and the date such Claim becomes due and payable in the ordinary course of business or (ii) be otherwise rendered Unimpaired.

c.

Voting:  Class 1 is Unimpaired under the Plan.  Holders of Allowed Class 1 Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan.

a.

Classification:  Class 2 consists of all Allowed Other Secured Claims.  Although all Other Secured Claims have been placed in one Class for the purposes of nomenclature, the Other Secured Claims against each applicable Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.

b.

Treatment:  Except to the extent such holder agrees to less favorable treatment, each holder of an Allowed Class 2 Claim will receive from each relevant Reorganized Debtor (i) payment in full in cash, payable on the later of the Effective Date and the date that is ten (10) Business Days after the date on which such Other Secured Claim becomes an Allowed Other Secured Claim, in each case, or as soon as reasonably practicable thereafter, or (ii) such other treatment so as to render the holder of such Allowed Other Secured Claim unimpaired.

c.

Voting:  Class 2 is Unimpaired under the Plan.  Holders of Allowed Class 2 Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan.

a.

Classification:  Class 3 consists of all Allowed Existing Loan Claims. Although all Allowed Existing Loan Claims have been placed in one Class for the purposes of nomenclature, the Allowed Existing Loan Claims against each applicable Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.

b.

Allowance:  The Existing Loan Claims shall be Allowed in the aggregate amount of no less than $456,415,500.51, plus accrued and unpaid interest (including at any applicable default rate) and all applicable fees, costs, expenses, and other amounts due under the terms of the Existing Credit Facility Documents, in each case, as of the Petition Date.  The Existing Loan Claims shall not be subject to any avoidance, reduction, setoff, recoupment, recharacterization, subordination (equitable or contractual or otherwise), counter-claim, defense, disallowance, impairment, surcharge under section 506(c) of the Bankruptcy Code, objection, any challenges under applicable law or regulation, or any other claim or defense.

c.

Treatment:  On the Effective Date, each holder of an Allowed Class 3 Claim shall receive its Pro Rata share of (i) commitments under the New Term Loan Facility, in the aggregate principal amount equal to the New Term Loan Facility Principal Amount; and (ii) 100% of New Common Equity, subject to dilution by the Management Incentive Plan and the New Common Equity Warrants.  The receipt of such consideration shall be deemed, as of the Effective Date, to be in full and final satisfaction, settlement, release, and discharge of, and in exchange for, such holder’s Allowed Class 3 Claim against each Debtor.

d.

Voting:  Class 3 is Impaired under the Plan.  Therefore, holders of Allowed Class 3 Claims are entitled to vote to accept or reject the Plan.

a.

Classification:  Class 4 consists of all Allowed General Unsecured Claims.  Although all General Unsecured Claims have been placed in one Class for the purposes of nomenclature, the General Unsecured Claims against each applicable Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.

b.

Treatment:  Except to the extent previously paid during the Chapter 11 Cases or such holder agrees to less favorable treatment, each holder of an Allowed Class 4 Claim shall receive from each relevant Reorganized Debtor, in full and final satisfaction, settlement, release, and discharge of, and in exchange for, each such Claim, (i) payment equal to the Allowed amount of such Claim, in Cash, as and when such Claim becomes due and payable in the ordinary course of the applicable Debtor’s business or in accordance with applicable court order (plus any interest accrued after the Petition Date with respect to such Claim to the extent required by law to render such Claim Unimpaired, as determined by the Debtors or ordered by the Bankruptcy Court), or (ii) such other treatment that renders such holder Unimpaired.

c.

Voting:  Class 4 is Unimpaired under the Plan.  Holders of Allowed Class 4 Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan.

a.

Classification:  Class 5 consists of all Allowed Intercompany Claims.  Although all Allowed Intercompany Claims have been placed in one Class for the purposes of nomenclature, the Intercompany Claims against each applicable Debtor shall be treated as being in a separate sub-Class for the purpose of receiving distributions under the Plan.

b.

Treatment:  No property will be distributed to holders of Allowed Intercompany Claims.  Each holder of an Allowed Class 5 Claim shall (i) have its Claim be reinstated or released and cancelled, to the extent determined appropriate by the Debtors and the Required Consenting Lenders, or (ii) receive such other treatment that renders such holder Unimpaired.

c.

Voting:  Depending on the treatment above, Class 5 is either (i) Unimpaired under the Plan and conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, not entitled to vote to accept or reject the Plan; or (ii) Impaired under the Plan and conclusively presumed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, not entitled to vote to accept or reject the Plan.

a.

Classification:  Class 6 consists of all Allowed Intercompany Interests.

b.

Treatment:  No property will be distributed to holders of Allowed Intercompany Interests.  Each holder of an Allowed Interest in Class 6 shall (i) have its Interest be reinstated solely to the extent necessary to maintain the Debtors’ corporate structure, or (ii) receive such other treatment that renders such holder Unimpaired.

c.

Voting:  Depending on the treatment above, Class 6 is either (i) Unimpaired under the Plan and conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, not entitled to vote to accept or reject the Plan; or (ii) Impaired under the Plan and conclusively presumed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, not entitled to vote to accept or reject the Plan.

a.

Classification:  Class 7 consists of all Allowed Subordinated Claims.

b.

Treatment:  All Allowed Subordinated Claims, if any, shall be discharged, cancelled, released, and extinguished as of the Effective Date, and will be of no further force or effect, and holders of Allowed Subordinated Claims will not receive any distribution on account of such Allowed Subordinated Claims.

a.

Classification:  Class 8 consists of all Existing Equity Interests.

b.

Treatment:  All Existing Equity Interests will be cancelled, released, and extinguished as of the Effective Date, and holders of Existing Equity Interests shall not receive or retain any property under the Plan on account of such Existing Equity Interests.

c.

Voting:  Class 8 is Impaired under the Plan.  Holders of Interests in Class 8 are conclusively presumed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan.

C.	Special Provision Governing Unimpaired Claims

A.	Voting Classes

B.	Presumed Acceptance of the Plan

C.	Subordinated Claims

A.	General Settlement of Claims and Interests

B.	Restructuring Transactions

C.	Sources of Consideration for Plan Distributions

D.	Corporate Existence

E.	Vesting of Assets in the Reorganized Debtors

F.	Cancellation of Loans, Securities, and Agreements

G.	Corporate and Other Entity Action

H.	New Common Equity Warrants — Fractional Distribution Provision

I.	New Organizational Documents

J.	Directors and Officers of Reorganized Debtors

K.	Effectuating Documents; Further Transactions

L.	Section 1146 Exemption

M.	Management Incentive Plan

N.	Releases of Avoidance Actions

O.	Procedures for Treating Disputed Claims and Interests Under the Plan

P.	Authorization and Issuance of New Common Equity and New Common Equity Warrants

A.	Assumption of Executory Contracts and Unexpired Leases

B.	Cure of Defaults for Executory Contracts and Unexpired Leases Assumed

C.	Insurance Policies & Indemnification Obligations

D.	Modifications, Amendments, Supplements, Restatements, or Other Agreements

E.	Reservation of Rights

F.	Contracts and Leases Entered into after Petition Date

G.	Rejection Damages Claims

H.	Compensation and Benefits Plans

I.	Non-Occurrence of Effective Date

A.	Timing and Calculation of Amounts to Be Distributed

B.	Disbursing Agent

C.	Rights and Powers of Disbursing Agent

D.	Delivery of Distributions and Undeliverable or Unclaimed Distributions

E.	Exemption from Securities Laws

F.	Compliance with Tax Requirements

G.	No Postpetition Interest on Claims and Interests

H.	Setoffs and Recoupment

I.	Claims Paid or Payable by Third Parties

J.	Allocation Between Principal and Accrued Interest

A.	Compromise and Settlement

B.	Discharge of Claims and Termination of Interests

C.	Release of Liens

D.	Releases of Released Parties

E.	Exculpation

F.	Injunction

A.	Conditions to Effective Date

1.

all transactions and other documents to effectuate the Restructuring shall contain terms and conditions consistent in all material respects with the Restructuring Term Sheet and the Restructuring Support Agreement;

2.

the Restructuring Support Agreement shall remain in full force and effect and shall not have been terminated, and the parties thereto shall be in compliance therewith;

3.

the Bankruptcy Court shall have entered the Prepack Scheduling Order and such order shall have become a Final Order;

4.

the Bankruptcy Court shall have entered the DIP Orders and the Final DIP Order shall have become a Final Order;

5.

the DIP Facility shall remain in full force and effect and shall not have been terminated, and the parties thereto shall be compliance therewith;

6.

the Bankruptcy Court shall have entered the Confirmation Order and such order shall not have been reversed, stayed, amended, modified, dismissed, vacated or reconsidered;

7.

all authorizations, consents, regulatory approvals, rulings, or documents required by applicable law to implement and effectuate the Plan, including any approvals required in connection with the transfer, change of control, or assignment of permits and licenses held by the applicable Debtor, unless such permits or licenses are abandoned, shall have been obtained from any appropriate regulatory agencies and not subject to any appeal;

8.

the Debtors shall have obtained all governmental and regulatory approvals, consents, authorizations, rulings, or other documents that are legally required for the consummation of the Restructuring shall have been obtained, not be subject to unfulfilled conditions, and be in full force and effect, and all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired;

9.

except as otherwise expressly provided herein, all documents to be executed, delivered, assumed, or performed upon or in connection with Consummation as to the applicable Debtor shall have been (i) executed, delivered, assumed, or performed, as the case may be, (ii) to the extent required, filed with the applicable Governmental Units in accordance with applicable law, (iii) any conditions contained in such documents (other than Consummation or notice of Consummation) shall have been satisfied or waived in accordance therewith, including all documents included in the Plan Supplement, and (iv) in each case shall be consistent with the Restructuring Support Agreement and Restructuring Term Sheet including, without limitation, any consent rights included therein;

10.

there shall not be in effect any (a) order, opinion, ruling, or other decision entered by any court or other Governmental Unit or (b) U.S. or other applicable law staying, restraining, enjoining, prohibiting, or otherwise making illegal the implementation of any of the transactions contemplated by the Plan;

11.

the conditions to the effectiveness of the Priority Exit Facility and the New Term Loan Facility shall have been satisfied or waived in accordance with the terms of the Priority Exit Facility Documents and the New Term Loan Facility Documents, as applicable, on or prior to the Effective Date, and conversion and payment of the DIP Facility Claims shall occur concurrently with the occurrence of the Effective Date;

12.

the DIP Facility obligations shall have rolled over into the Priority Exit Facility as set forth in Article II.D. of the Plan;

13.

all conditions to the issuance of the New Common Equity and New Common Equity Warrants shall have occurred;

14.

the Debtors shall have paid in full in Cash all Restructuring Expenses incurred, or estimated to be incurred, through the Effective Date;

15.

the Professional Fees Escrow Account shall have been established and funded in full, in Cash, in accordance with, and in the amounts required by, the Plan;

16.

the final version of the Plan and all of the schedules, documents, and exhibits contained therein, and all other schedules, documents, supplements, and exhibits to the Plan, shall be consistent with (x) the Restructuring Support Agreement and the Restructuring Term Sheet and (y) the consent rights of the DIP Facility Agent set forth in the DIP Loan Documents (if any); and

17.

the Restructuring to be implemented on the Effective Date shall be consistent with the Plan and the Restructuring Support Agreement.

B.	Waiver of Conditions

A.	Modification and Amendments

B.	Effect of Confirmation on Modifications

C.	Revocation or Withdrawal of Plan

---

2

If, prior to the Outside Consummation Date, all conditions precedent to effectiveness of the Plan have been satisfied or waived, as applicable, or, for conditions that by their nature are to be satisfied on the Effective Date, shall then be capable of being satisfied, except the requisite regulatory approvals have not been obtained, the Outside Consummation Date shall be automatically extended by 14 calendar days, or to such other time as agreed between the parties to the Restructuring Support Agreement.

1.

allow, disallow, determine, liquidate, classify, estimate, or establish the priority, Secured or Unsecured status, or amount of any Claim or Interest, including (a) the resolution of any request for payment of any Administrative Expense and (b) the resolution of any objections to the Secured or Unsecured status, priority, amount, or allowance of Claims or Interests;

2.

decide and resolve all matters related to the granting and denying, in whole or in part, of any applications for allowance of compensation or reimbursement of expenses to Professionals pursuant to the Bankruptcy Code or the Plan;

3.

resolve any matters related to: (a) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease to which the Debtors are party or with respect to which the Debtors may be liable, and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Claims for rejection damages or Cure Claims pursuant to section 365 of the Bankruptcy Code; (b) any potential contractual obligation under any Executory Contract or Unexpired Lease that is assumed, or assumed and assigned; and (c) any dispute regarding whether a contract or lease is or was executory or expired;

4.

ensure that distributions to holders of Allowed Claims and Allowed Interests are accomplished pursuant to the provisions of the Plan;

5.

adjudicate, decide, or resolve any motions, adversary proceedings, contested, or litigated matters, and any other matters, and grant or deny any applications involving the Debtors that may be pending on the Effective Date;

6.

adjudicate, decide, or resolve any and all matters related to sections 1141 and 1146 of the Bankruptcy Code;

7.

enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan or the Disclosure Statement;

8.

enter and enforce any order for the sale or transfer of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code;

9.

resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Plan or any Entity’s obligations incurred in connection with the Plan;

10.

issue injunctions, enter, and implement other orders or take such other actions as may be necessary or appropriate to restrain interference by any Entity with Consummation or enforcement of the Plan and ensure compliance with the Plan;

11.

resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, injunctions, and other provisions contained in Article VIII, and enter such orders as may be necessary or appropriate to implement or enforce such releases, injunctions, and other provisions;

12.

resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by the holder of a Claim or Interest for amounts not timely repaid pursuant to Article VII.I.1;

13.

enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked or vacated;

14.

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

15.

enter an order or final decree concluding or closing the Chapter 11 Cases;

16.

adjudicate any and all disputes arising from or relating to distributions under the Plan;

17.

consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any Bankruptcy Court order, including the Confirmation Order;

18.

determine requests for the payment of Claims and Interests entitled to priority pursuant to section 507 of the Bankruptcy Code;

19.

hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Plan;

20.

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

21.

hear and determine all disputes involving the existence, nature, scope, or enforcement of any exculpations, discharges, injunctions, and releases granted in the Plan, including under Article VIII, regardless of whether such termination occurred before or after the Effective Date;

22.

determine whether and in what amount a Claim or Interest is Allowed;

23.

recover all assets of the Debtors and property of the Estates, wherever located;

24.

resolve any disputes concerning whether an Entity had sufficient notice of the Chapter 11 Cases, the Disclosure Statement, any solicitation conducted in connection with the Chapter 11 Cases, any bar date established in the Chapter 11 Cases, or any deadline for responding or objecting to the amount of a cure, in each case, for the purpose of determining whether a Claim or Interest is discharged hereunder or for any other purpose;

25.

hear and determine any rights, claims, or Causes of Action held by, or accruing to, the Debtor pursuant to the Bankruptcy Code or pursuant to any federal statute or legal theory;

26.

enforce all orders previously entered by the Bankruptcy Court; and

27.

hear any other matter as to which the Bankruptcy Court has jurisdiction.

A.	Immediate Binding Effect

B.	Additional Documents

C.	Payment of Statutory Fees

D.	Reservation of Rights

E.	Successors and Assigns

F.

Notices

G.	Term of Injunctions or Stays

H.	Entire Agreement

I.

Exhibits

J.	Certain Consent Rights

K.	Nonseverability of Plan Provisions

L.	Votes Solicited in Good Faith

M.	Closing of Chapter 11 Cases

N.	Document Retention

O.

Conflicts

P.	Dissolution of Committees

	Internap Corporation on behalf of itself
	and each of its Debtor affiliates
	By:	/s/ Michael T. Sicoli
		Name: Michael T. Sicoli
		Title: President and Chief Financial Officer

61

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re:	)
	)	Chapter 11
	)
INTERNAP TECHNOLOGY SOLUTIONS INC.,	)	Case No. 20-22393 (RDD)
et al.	)
	)	Jointly Administered
Debtors.1	)
	)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER (I) APPROVING DISCLOSURE STATEMENT, (II)

CONFIRMING FIRST AMENDED JOINT PREPACKAGED CHAPTER 11 PLAN OF INTERNAP CORPORATION AND ITS AFFILIATED DEBTORS AND DEBTORS IN POSSESSION AND (III) GRANTING RELATED RELIEF

WHEREAS, on March 16, 2020, Internap Technology Solutions Inc. and its debtor affiliates in the above-captioned cases under chapter 11 of title 11 of the United States Code   (the “Bankruptcy Code”), as debtors and debtors in possession (collectively, the “Debtors”), proposed and filed the Joint Prepackaged Chapter 11 Plan of Internap Corporation and Its Affiliated Debtors and Debtors in Possession, dated as of March 15, 2020 [Docket No. 19] (the “Original Plan”), and filed the Disclosure Statement For Joint Prepackaged Chapter 11 Plan Of Internap Corporation and Its Affiliated Debtors And Debtors In Possession, dated as of March 15, 2020 [Docket No. 18] (the “Disclosure Statement”);

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1

The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number, as applicable, are: Internap Technology Solutions Inc. (8343); Internap Corporation (5721); Ubersmith, Inc. (7677); SingleHop, LLC (4340); Internap Connectivity LLC (7920); Hosting Intellect, LLC (8435); and DataGram, LLC (3170). The location of the Debtors’ service address for purposes of these Chapter 11 Cases is: 50 Main Street, Suite 1000, White Plains, New York 10606.

WHEREAS, on April 22, 2020, the Debtors proposed and filed the First Amended Joint Prepackaged Chapter 11 Plan of Internap Corporation and Its Affiliated Debtors and Debtors in Possession [Docket No. 122] (as supplemented and as otherwise amended in accordance with the terms thereof and this Order, the “Plan”),² a copy of which is annexed hereto as Exhibit A;

WHEREAS, on March 19, 2020, after notice and hearing, this Court entered the Order (I)  Scheduling a Combined Disclosure Statement Approval and Plan Confirmation Hearing, (II)  Establishing a Plan and Disclosure Statement Objection Deadline, (III) Approving Solicitation Procedures and Combined Notice, (IV) Approving Equity Notice Procedures, (V) Approving Notice and Objection Procedures for the Assumption of Executory Contracts and Unexpired Leases, (VI) Directing That a Meeting of Creditors Not Be Convened, and (VII) Granting Related Relief [Docket No. 42] (the “Solicitation Procedures Order”), which, among other things, (i)   approved the solicitation and voting procedures related to the Disclosure Statement (the “Solicitation Procedures”), and (ii) scheduled a combined hearing on May 4, 2020 at 2:00 p.m. (Eastern Time) to consider approval of the Disclosure Statement and confirmation of the Plan (the “Combined Hearing”);

WHEREAS, the Debtors, through their solicitation and balloting agent, Prime Clerk LLC (“Prime Clerk”), duly caused the transmittal of the Disclosure Statement and the Plan and related solicitation materials, including forms of ballots (the “Ballots”) (collectively, the “Solicitation Materials”), to holders of Claims in accordance with the Solicitation Procedures Order, as described in the Affidavit of Service of Solicitation Materials, filed on March 24, 2020 [Docket No. 62] (the “Solicitation Affidavit”), as well as in the Declaration of Alex Orchowski of Prime Clerk LLC Regarding the Solicitation of Votes and Tabulation of Ballots Cast on the Joint Prepackaged Chapter 11 Plan of Internap Corporation and its Affiliated Debtors and Debtors in Possession, filed on April 18, 2020 [Docket No. 116] (the “Voting Report”);

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WHEREAS, on March 20, 2020, Prime Clerk served the Combined Notice on all parties in interest and served the Equity Holder Notice in accordance with the terms of the Scheduling Order, as set forth in the Affidavit of Service filed on March 27, 2020 [Docket No. 70] (the “Notice Affidavit”); and on March 24, 2020 Prime Clerk caused the Publication Notice to be published in USA Today, National Edition as set forth in the Affidavit of Publication, filed on March 27, 2020 [Docket No. 68] (the “Publication Affidavit”);

WHEREAS, due and proper notice of the Combined Hearing was given to holders of Claims and Interests and all other parties in interest in compliance with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), the Bankruptcy Local Rules for the United States Bankruptcy Court for the Southern District of New York (the “Local Rules”), and the Solicitation Procedures Order, as established by the affidavits of service, mailing, and publication filed with this Court, including the Solicitation Affidavit, Notice Affidavit and the Publication Affidavit, and such notice being sufficient under the circumstances and no further notice being required;

WHEREAS, on April 21, 2020, the Debtors filed the Plan Supplement [Docket No. 120] (as may be further amended or supplemented, the “Plan Supplement”);

WHEREAS, on May 1, 2020, the Debtors filed the (i) Debtors’ Memorandum of Law in Support of an Order (I) Approving the Debtors’ Disclosure Statement and (II) Confirming the Debtors’ First Amended Joint Prepackaged Chapter 11 Plan, (ii) the Declaration of Michael T. Sicoli in Support of Confirmation of the Debtors’ First Amended Joint Prepackaged Chapter 11 Plan of Internap Corporation and Its Affiliated Debtors and Debtors in Possession (the “Confirmation Declaration”), (iii) the Declaration of Stephen Dubé in Support of an Order Approving the Debtors’ Disclosure Statement for and Confirming the Debtors First Amended Joint Prepackaged Chapter 11 Plan (the “Liquidation Analysis Declaration”), and (iv) the Declaration of Adam B. Keil in Support of an Order Approving the Debtors’ Disclosure Statement for and Confirming the Debtors First Amended Joint Prepackaged Chapter 11 Plan (the “Valuation Analysis Declaration”).

WHEREAS, on May 4, 2020, this Court held the Combined Hearing;

WHEREAS, this Court has fully considered the entire record of the Combined Hearing;

WHEREAS, this Court has heard the arguments and representations of counsel and considered the evidence presented, proffered, and adduced at the Combined Hearing;

WHEREAS, this Court is familiar with and has taken judicial notice of the entire record of these Chapter 11 Cases;

WHEREAS, any objections to confirmation of the Plan and assumption of executory contracts and unexpired leases have been settled, withdrawn, resolved, or overruled on the merits by this Court;

THEREFORE, based on the foregoing, and after due deliberation thereon and sufficient cause appearing therefor, this Court hereby FINDS, DETERMINES, and CONCLUDES as follows:

 

 

 

 

 

 

 

 

 

 L.           Best  Interest of Creditors. The liquidation analysis provided in the Disclosure Statement, the Confirmation Declaration, Liquidation Analysis Declaration, and the other evidence presented, proffered, or adduced at the Combined Hearing (i) are persuasive and credible, (ii) have not been controverted by other evidence, and (iii) establish that each holder of an Impaired Claim or Interest either has accepted the Plan or will receive or retain under the Plan, on account of such Claim or Interest, property of a value, as of the Effective Date, that is not less than the amount that such holder would receive or retain if the Debtors were liquidated under chapter 7 of the Bankruptcy Code on such date.

 

 

 

 

Q.           Injunctions,   Releases, and Exculpation. The Bankruptcy Court has jurisdiction under sections 157(a)-(b) 1334(a) and (b) of title 28 of the United States Code and authority under section 105 of the Bankruptcy Code to approve the injunctions or stays, injunction against interference with the Plan, releases, and exculpation set forth in the Plan. As has been established based upon the record in the Chapter 11 Cases and the evidence presented at the Combined Hearing, such provisions (i) were given in exchange for good and valuable consideration, (ii) were integral to the agreements among the various parties in interest and are essential to the formulation and implementation of the Plan, as provided in section 1123 of the Bankruptcy Code, (iii) confer substantial benefits on the Debtors’ Estates, (iv) are fair, equitable, and reasonable, (v) are in the best interests of the Debtors, their Estates, and parties in interest, and (vi)  failure to implement the injunctions, exculpation, and releases would seriously jeopardize the Debtors’ ability to confirm and implement the Plan. Pursuant to section 1123(b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019(a), the injunctions, releases, and exculpation set forth in the Plan and implemented by this Order are fair, equitable, reasonable, and in the best interest of the Debtors, the Reorganized Debtors, and their Estates, creditors, and equity holders and supported by adequate consideration.

(i)   The releases granted by the Debtors and their Estates under Article VIII.D.1 of the Plan (the “Debtors’ Release”) represent a valid exercise of the Debtors’ business judgment in the light of the possible risks and rewards, costs and delay of pursuing the released claims. For the reasons set forth on the record of these Chapter 11 Cases and the evidence proffered or adduced at the Combined Hearing, such release is an integral and necessary part of the Plan and is fair, reasonable, and in the best interests of the Debtors, the Estates, and holders of Claims and Interests. The Debtors’ Release is (1) in exchange for the good and valuable consideration provided by the Released Parties, (2) a good faith settlement and compromise of the claims and Causes of Action released by the Debtors, the Reorganized Debtors, and the Estates, (3) given and made after due notice and opportunity for hearing, and (4) a bar to any of the Debtors, the Reorganized Debtors, or the Estates asserting any claim or Cause of Action released pursuant to the release described in Article VIII.D.1 of the Plan, except as otherwise set forth in the Plan.

(ii)  The releases contained in Article VIII.D.2 of the Plan (the “Third Party Release”) are appropriate. Creditors were duly informed of the Third Party Release. The release provisions contained in Article VIII.D.2 of the Plan are consensual under applicable law in that the releases therein are provided by (i) the Debtors, (ii) the Released Parties, (iii) the holders of all Claims who vote to accept the Plan, due notice of the effect of such vote having been provided, and (iv) holders of Existing Equity Interests who execute the Existing Equity Release in accordance with the Existing Equity Notice Materials.

(iii)  The Third Party Release is: (1) in exchange for good and valuable consideration provided by the Released Parties; (2) a good faith settlement and compromise of the claims released by the Third Party Release; (3) in the best interests of the Debtors and all holders of Claims and Interests; (4) fair, equitable, and reasonable; (5) given and made after due notice and opportunity for hearing; and (6) a bar to any of the Releasing Parties asserting any claim or Cause of Action released pursuant to the Third Party Release, except as otherwise set forth in the Plan. The Third Party Release is an integral part of the Plan that is overwhelmingly supported by the sole voting class. The Third Party Release facilitated participation in both the Debtors’ Plan and the chapter 11 process generally. The Third Party Release is instrumental to the Plan and was critical in incentivizing the parties to support the Plan. The Third Party Release was a core negotiation point in connection with the Restructuring Support Agreement and instrumental in developing a Plan that maximized value for all of the Debtors’ stakeholders. The Third Party Release is appropriately tailored under the facts and circumstances of these Chapter 11 Cases. Parties-in-interest have had a full opportunity to object to the Third Party Release, which, as found in the preceding paragraph, consensual. As such, the Third Party Release appropriately offers certain protections to parties that constructively participated in the Debtors’ restructuring process by, among other things, supporting the Plan and the Restructuring Transactions.

(vi)  The exculpations granted under the Plan are reasonable in scope, pertain to matters which this Court has approved after notice and a hearing, and do not relieve any party of liability for an act or omission to the extent such act or omission is a criminal act or constitutes intentional fraud or willful misconduct.

(v) The record of the Combined Hearing and the Chapter 11 Cases is sufficient to support the injunctions, releases, and exculpation provided for in the Plan. Accordingly, based upon the record of the Chapter 11 Cases, the representations of the parties, and/or the evidence proffered, adduced, and/or presented at the Combined Hearing, the injunctions, exculpation, and releases set forth in Article VIII of the Plan are consistent with the Bankruptcy Code and applicable law and are approved.

 

ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, DECREED, AND DETERMINED THAT:

 

 

 

 

 

 

 

 

 

 

a.          On the Effective Date, the Reorganized Debtors are authorized to and shall enter into the New Term Loan Facility Credit Agreement and all other documents, notes, agreements, guaranties, and other collateral documents contemplated thereby. The New Term Loan Facility Credit Agreement shall constitute legal, valid, binding, and authorized joint and several obligations of the Reorganized Debtors enforceable in accordance with its terms and such obligations shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination under applicable law, the Plan, or this Order. On the Effective Date, all Liens and security interests granted pursuant to or in connection with the New Term Loan Facility Credit Agreement (x) shall be valid, binding, perfected, enforceable Liens and security interests in substantially all assets of the applicable Reorganized Debtors pursuant to the Plan and the New Term Loan Facility Credit Agreement and the collateral documents executed and delivered in connection therewith, junior in priority to the Priority Exit Facility, and (y) shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination under any applicable law, the Plan, or this Order.

b.          The New Term Loan Facility Agent is authorized to file, with the appropriate authorities, financing statements, amendments thereto, or assignments thereof and other documents, including mortgages or amendments or assignments thereof in order to evidence the first priority Liens, pledges, mortgages, and security interests granted in connection with the New Term Loan Facility Credit Agreement. The guaranties, mortgages, pledges, Liens, and other security interests granted in connection with the New Term Loan Facility Credit Agreement are granted in good faith as an inducement to the New Term Loan Facility Lenders to extend credit thereunder, shall be deemed not to constitute a fraudulent conveyance or fraudulent transfer, shall not otherwise be subject to avoidance, and the priorities of such Liens, mortgages, pledges, and security interests shall be as set forth in the Plan and the New Term Loan Facility Credit Agreement and the collateral documents executed and delivered in connection therewith.

 

a.         On the Effective Date, the Reorganized Debtors are authorized to and shall enter into the Priority Exit Facility Credit Agreement and all other documents, notes, agreements, guaranties, and other collateral documents contemplated thereby. The Priority Exit Facility Credit Agreement shall constitute legal, valid, binding, and authorized joint and several obligations of the Reorganized Debtors enforceable in accordance with its terms and such obligations shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination under applicable law, the Plan, or this Order. On the Effective Date, all Liens and security interests granted pursuant to, or in connection with the Priority Exit Facility Credit Agreement (x) shall be valid, binding, perfected, enforceable first priority Liens and security interests in substantially all of the assets of the applicable Reorganized Debtors pursuant to the Plan and the Priority Exit Facility Credit Agreement and the collateral documents executed and delivered in connection therewith, senior in priority to the New Term Loan Facility, and (y) shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination under any applicable law, the Plan, or this Order.

b.        The Priority Exit Facility Agent is authorized to file, with the appropriate authorities, financing statements, amendments thereto, or assignments thereof and other documents, including mortgages or amendments or assignments thereof in order to evidence the first priority Liens, pledges, mortgages, and security interests granted in connection with the Priority Exit Facility Credit Agreement. The guaranties, mortgages, pledges, Liens, and other security interests granted in connection with the Priority Facility Credit Agreement are granted in good faith as an inducement to the Priority Exit Facility Lenders to extend credit thereunder, shall be deemed not to constitute a fraudulent conveyance or fraudulent transfer, shall not otherwise be subject to avoidance, and the priorities of such Liens, mortgages, pledges, and security interests shall be as set forth in the Plan and the Priority Exit Facility Credit Agreement and the collateral documents executed and delivered in connection therewith.

 

 

 

 

 

 

 

b.        Subject to (i) satisfaction of the conditions set forth in Article VI.B of the Plan, and (ii) the occurrence of the Effective Date, entry of this Order shall constitute approval of the assumptions or rejections provided for in the Plan pursuant to sections 365(a) and 1123 of the Bankruptcy Code and a determination by the Bankruptcy Court that the Reorganized Debtors have provided adequate assurance of future performance under such assumed executory contracts and unexpired leases. Each executory contract and unexpired lease assumed pursuant to the Plan shall vest in and be fully enforceable by the applicable Reorganized Debtor in accordance with its terms, except as modified by the provisions of the Plan, any Final Order of this Court authorizing and providing for its assumption, or applicable law.

c.        Notwithstanding anything to the contrary in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, nothing in the Plan shall release, discharge, extinguish or impair any Lien, security interest, or pledge or any contractual right or remedy granted in favor of the counterparty under any Executory Contract or Unexpired Lease deemed assumed (or amended and assumed, as applicable) pursuant to Article VI.A of the Plan.

d.         In the event that the rejection of an Executory Contract or Unexpired Lease by any of the Debtors under paragraph 18.a hereof results in damages to the other party or parties to such contract or lease, a Claim for such damages shall be forever barred and shall not be enforceable against the Debtors or the Reorganized Debtors or their respective properties or interests in property as agents, successors, or assigns, unless filed on or before thirty (30) days after the Confirmation Date. Any such Claims, to the extent Allowed, shall be classified as General Unsecured Claims and shall be treated in accordance with Article III of the Plan.

 

e.        Notwithstanding Article VI.A. of the Plan and Paragraph 18(a) of this Order, the Compensation Agreements shall be neither assumed nor rejected. Rather, the Compensation Agreements and the Debtors’ benefits and obligations thereunder shall be deemed to “ride through” the Chapter 11 Cases unaffected by the Chapter 11 Cases (including by the provisions of Article VIII of the Plan) and shall remain as benefits and obligations of the Reorganized Debtors after the Effective Date. Until after the Effective Date, the Debtors and Reorganized Debtors shall make no payments on account of, nor be liable for, any severance, bonus or special incentive payments under the Compensation Agreements. All other employment, confidentiality, and non-competition agreements, offer letters, vacation, holiday pay, retirement, supplemental retirement, indemnity, executive retirement, pension, deferred compensation, medical, dental, vision, life and disability insurance, flexible spending account, and other health and welfare benefit plans, programs, agreements and arrangements, and all other wage, compensation, employee expense reimbursement, and other benefit obligations are deemed to be, and shall be treated as, Executory Contracts under the Plan and, on the Effective Date, shall be deemed assumed pursuant to sections 365 and 1123 of the Bankruptcy Code.

 

20.          Preservation of Causes of Action. Except as expressly released under the Plan or this Order, in accordance with section 1123(b) of the Bankruptcy Code, all Causes of Action that a Debtor may hold against any Entity shall vest in the applicable Reorganized Debtor on the Effective Date. Thereafter, the Reorganized Debtors shall have the exclusive right, authority, and discretion to determine and to initiate, file, prosecute, enforce, abandon, settle, compromise, release, withdraw, or litigate to judgment any such Causes of Action, whether arising before or after the Petition Date, and to decline to do any of the foregoing without the consent or approval of any third party or further notice to or action, order, or approval of the Bankruptcy Court. No Entity may rely on the absence of a specific reference in the Plan, the Plan Supplement, or the Disclosure Statement to any specific Cause of Action as any indication that the Debtors or Reorganized Debtors will not pursue any and all available Causes of Action. The Debtors and Reorganized Debtors expressly reserve all rights to prosecute any and all Causes of Action against any Entity, except as otherwise expressly provided in the Plan, and, therefore, no preclusion doctrine, including the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise), or laches, shall apply to any Cause of Action upon, after, or as a consequence of the Confirmation or the occurrence of the Effective Date.

21.          Conditions  Precedent  to Effective Date. The Plan shall not become effective unless and until all conditions set forth in Article IX.A of the Plan have been satisfied or waived pursuant to Article IX.B of the Plan.

 

Notwithstanding the foregoing, solely with respect to Exculpated Parties that are not Fiduciary Exculpated Parties, Article VIII.E. of the Plan will bind only Entities that are Releasing Parties. For the avoidance of doubt, this paragraph is not intended to, and shall not, impair or otherwise limit (i) any exculpation rights of any Persons that are provided for under any agreements to which such Persons are parties or beneficiaries or (ii) Article VIII.E. of the Plan or any other exculpation rights (including under 11 U.S.C. § 1125(e)) as applied to Fiduciary Exculpated Parties.

 

 

 

25.           Nothing in the Plan or this Order, including any release or injunction provisions therein, shall be deemed to bar, impair, alter, diminish, or enlarge any of the rights or claims of the Sureties against any non-Debtor contractual or common law indemnitors to the Sureties, and, for avoidance of doubt, Arch Insurance Company shall not be a Releasing Party under the Plan.

 

 

 

 

a.          Nothing discharges or releases the Debtors, the Reorganized Debtors, or any non-debtor from any right, claim, liability or cause of action of any Governmental Unit (as defined in section 101(27) of the Bankruptcy Code), or impairs the ability of any Governmental Unit to pursue any claim, liability, right, defense, or cause of action against any Debtor, Reorganized Debtor or non-debtor. Contracts, purchase orders, agreements, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests of or with any Governmental Unit shall be, subject to any applicable legal or equitable rights or defenses of the Debtors or Reorganized Debtors under applicable non-bankruptcy law, paid, treated, determined and administered in the ordinary course of business as if the Debtors’ bankruptcy cases were never filed and the Debtors and Reorganized Debtors shall comply with all applicable non-bankruptcy law. All claims, rights, causes of action, or defenses of any Governmental Unit, and any liabilities to any Governmental Unit, shall survive the Chapter 11 Cases as if they had not been commenced and be determined in the ordinary course of business, including in the manner and by the administrative or judicial tribunals in which such rights, defenses, claims, liabilities, or causes of action would have been resolved or adjudicated if the Chapter 11 Cases had not been commenced; provided, that nothing in the Plan or this Confirmation Order shall alter any legal or equitable rights or defenses of the Debtors or the Reorganized Debtors under non-bankruptcy law with respect to any such claim, liability, or cause of action. Without limiting the foregoing, for the avoidance of doubt: (i) no Governmental Unit shall be required to file any proofs of claim or administrative expense claims in the Chapter 11 Cases for any right, claim, liability, defense, or cause of action; (ii) nothing shall affect or impair the exercise of any Governmental Unit’s police and regulatory powers against the Debtors, the Reorganized Debtors or any non-debtor; (iii) nothing shall be interpreted to set cure amounts or to require any Governmental Unit to novate or otherwise consent to the transfer of any federal or state contracts, purchase orders, agreements, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests; (iv) nothing shall affect or impair any Governmental Unit’s rights and defenses of setoff and recoupment, or ability to assert setoff or recoupment against the Debtors or the Reorganized Debtors and such rights and defenses are expressly preserved; (v) nothing shall constitute an approval or consent by any Governmental Unit without compliance with all applicable legal requirements and approvals under non-bankruptcy law, (vi) nothing shall relieve any party from compliance with all licenses and permits in accordance with non-bankruptcy law.

b.          No provision in the Plan, this Order or other related Plan Documents relieves the Debtor or the Reorganized Debtors from their obligations to comply with the Communications Act of 1934, as amended, and the rules, regulations and orders promulgated thereunder by the Federal Communications Commission (“FCC”). No transfer of any FCC license or authorization held by the Debtors, or transfer of control of a Debtor that is an FCC licensee, or transfer of control of a FCC licensee controlled by the Debtors shall take place prior to the issuance of FCC regulatory approval for such transfer pursuant to applicable FCC regulations. The FCC’s rights and powers to take any action pursuant to its regulatory authority including, but not limited to, imposing any regulatory conditions on any of the above described transfers, are fully preserved, and nothing herein shall proscribe or constrain the FCC’s exercise of such power or authority.