Case 13-13087-KG Doc 127 Filed 12/10/13 Page 1 of 39 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) In re: ) Chapter 11 FISKER AUTOMOTIVE HOLDINGS, INC., et al., 1 ) ) Case No. 13-13087 (KG) Debtors. ) ) (Jointly Administered) ) DEBTORS JOINT PLAN OF LIQUIDATION PURSUANT TO CHAPTER 11 OF THE BANKRUPTCY CODE THIS CHAPTER 11 PLAN IS BEING SOLICITED FOR ACCEPTANCE OR REJECTION IN ACCORDANCE WITH SECTION 1125 AND WITHIN THE MEANING OF SECTION 1126 OF THE BANKRUPTCY CODE, 11 U.S.C. 1125, 1126. THIS CHAPTER 11 PLAN WILL BE SUBMITTED TO THE BANKRUPTCY COURT FOR APPROVAL FOLLOWING SOLICITATION AND THE DEBTORS FILING FOR CHAPTER 11 BANKRUPTCY. James H.M. Sprayregen, P.C. (admitted pro hac vice) Anup Sathy, P.C. (admitted plo hac ice) Ryan Preston Dahl (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Email: james.sprayregen@kirkland.com anup.sathy@kirkland.com ryan.dahl@kirkland.com Laura Davis Jones (DE Bar No. 2436) James E. O Neill (DE Bar No. 4042) Peter J. Keane (DE Bar No. 5503) PACHULSKI STANG ZIEHL & JONES LLP 919 North Market Street, 17th Floor P.O. Box 8705 Wilmington, Delaware 19899-8705 (Courier 19801) Telephone: (302) 652-4100 Facsimile: (302) 652-4400 Email: ljones@pszjlaw.com joneill@pszjlaw.com pkeane@pszjlaw.com Proposed Counsel to the Debtors and Debtors in Possession Dated: December 10, 2013 The Debtors, together with the last four digits of each Debtor s federal tax identification number, are: Fisker Automotive Holdings, Inc. (9678); and Fisker Automotive, Inc. (9075). For the purpose of these chapter 11 cases, the service address for the Debtors is: 5515 E. La Palma Ave., Anaheim, California 92807.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 2 of 39 TABLE OF CONTENTS ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, ANDGOVERNING LAW... 1 A. Defined Terms...1 B. Rules of Interpretation...9 C. Computation of Time...9 D. Governing Law...9 F. Reference to Monetary Figures...9 F. Controlling Document... 10 ARTICLE H. ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS, AND PROFESSIONAL FEECLAIMS... 10 A. Administrative Claims... 10 B. DIP Facility Claims... 10 C. Professional Fee Claims... 10 D. Treatment of Certain Claims and Interests... 11 E. U.S. Trustee Statutory Fees... 11 ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS... 11 A. Summary of Classification of Claims and Interests... 11 B. Class Identification... 11 C. Classification of Claims and Interests... 12 D. Special Provision Governing Unimpaired Claims... 16 E. Elimination of Vacant Classes... 16 F. Voting Classes; Presumed Acceptance by Non-Voting Classes... 16 G. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code... 16 ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN... 16 A. Sources of Consideration for Plan Distributions... 16 B. General Settlement of Claims... 16 C. Corporate Action... 16 D. Dissolution and Boards of the Debtors... 17 E. Effectuating Documents; Further Transactions... 17 F. Exemption from Certain Taxes and Fees... 17 G. Preservation of Rights of Action... 17 H. Wind Down... 18 ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES... 19 A. Assumption and Assignment of Executory Contracts and Unexpired Leases...19 B. Cure of Defaults for Assumed Executory Contracts and Unexpired Leases...19 C. Claims Based on Rejection of Executory Contracts and Unexpired Leases...20 D. Preexisting Obligations to the Debtors Under Executory Contracts and Unexpired Leases...20 E. Modifications, Amendments, Supplements, Restatements, or Other Agreements...20 F. Insurance Policies... 21 G. Reservation of Rights...21 ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS... 21 A. Calculation of Amounts to Be Distributed...21 B. Rights and Powers of the Debtors and Liquidator...21 C. Delivery of Distributions and Undeliverable or Unclaimed Distributions...22 D. Compliance with Tax Requirements/Allocations...23 E. Claims Paid or Payable by Third Parties...24
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 3 of 39 ARTICLE VU. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS AND INTERESTS... 24 A. Resolution of Disputed Claims... 24 B. Disallowance of Claims... 25 C. Amendments to Claims... 25 D. No Interest... 26 ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS... 26 A. Compromise and Settlement of Claims, Interests, and Controversies... 26 B. Release of Liens... 26 C. Subordinated Claims... 26 D. Debtor Release... 27 E. Third Party Release... 27 F. Exculpation... 28 G. Injunction... 28 H. Waiver of Statutory Limitations on Releases... 29 I. Setoffs... 29 ARTICLE IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THEPLAN... 30 A. Conditions Precedent to the Effective Date...30 B. Waiver of Conditions...30 C. Effect of Non-Occurrence of Conditions to the Effective Date...30 ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN... 30 A. Modification and Amendments...30 B. Effect of Confirmation on Modifications...31 C. Revocation or Withdrawal of the Plan...31 ARTICLE XI. RETENTION OF JURISDICTION...31 ARTICLE XII. MISCELLANEOUS PROVISIONS... 33 A. Immediate Binding Effect... 33 B. Additional Documents... 33 C. Payment of Statutory Fees... 33 D. Dissolution of Committees... 33 E. Reservation of Rights... 33 F. Successors and Assigns... 34 G. Service of Documents... 34 H. Term of Injunctions or Stays... 34 I. Entire Agreement... 35 J. Nonseverability of Plan Provisions... 35 K. Waiver or Estoppel... 35
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 4 of 39 The Debtors propose the following joint plan of liquidation pursuant to chapter 11 of the Bankruptcy Code. Capitalized terms used in the Plan and not otherwise defined have the meanings ascribed to such terms in Article I of the Plan. Contemporaneously herewith, the Debtors have requested consolidation for procedural purposes only and are seeking authority to jointly administer the Chapter 11 Cases pursuant to an order of the Bankruptcy Court. Reference is made to the Disclosure Statement, filed contemporaneously with the Plan, for a discussion of the Debtors history, as well as a summary and analysis of the Plan and certain related matters. Each Debtor is a proponent of the Plan within the meaning of section 1129 of the Bankruptcy Code. A. Defined Terms ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, AND GOVERNING LAW As used in this Plan, capitalized terms have the meanings set forth below. 1. "Acquired Assets" has the meaning ascribed to it in the Purchase Agreement; provided that, for the avoidance of doubt, the Cash Sale Proceeds and the Remaining Assets shall not be Acquired Assets. 2. "Administrative Claims" means Claims for the costs and expenses of the administration of the Debtors Estates pursuant to section 503(b) of the Bankruptcy Code. For the avoidance of doubt, Claims asserting priority under Section 503(b)(9) of the Bankruptcy Code are included in the definition of Administrative Claims, and, if Allowed, shall be paid in accordance with the Plan. 3. "Administrative Claims Objection Bar Date" means the first Business Day that is 120 days after the Effective Date; provided that the Administrative Claims Objection Bar Date may be extended by the Bankruptcy Court after notice and a hearing. 4. "Administrative Claims Bar Date" means the first Business Day that is 30 days following the Effective Date, except as specifically set forth in the Plan or a Final Order. 5. "Affiliate" shall have the meaning set forth in section 10 1(2) of the Bankruptcy Code. 6. "Allowed" means with respect to Claims: (a) any Claim, proof of which is timely Filed by the applicable Claims Bar Date (or for which Claim under the Plan, the Bankruptcy Code, or a Final Order of the Bankruptcy Court, a Proof of Claim is not or shall not be required to be Filed); (b) any Claim that is listed in the Schedules as not contingent, not unliquidated, and not disputed, and for which no Proof of Claim has been timely Filed; or (c) any Claim allowed pursuant to the Plan or a Final Order of the Bankruptcy Court; provided that, with respect to any Claim described in clauses (a) and (b) above, such Claim shall be considered allowed only if and to the extent that with respect to such Claim no objection to the allowance thereof has been interposed within the applicable period of time fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, or such an objection is so interposed and the Claim shall have been Allowed by a Final Order. Any Claim that has been or is hereafter listed in the Schedules as contingent, unliquidated, or disputed, and for which no Proof of Claim is or has been timely Filed, is not considered Allowed and shall be expunged without further action by the Debtors and without further notice to any party or action, approval, or order of the Bankruptcy Court. "Allow" and "Allowing" shall have correlative meanings. 7. "Avoidance Actions" means any and all actual or potential claims and causes of action to avoid a transfer of property or an obligation incurred by the Debtors pursuant to any applicable section of the Bankruptcy Code, including sections 502, 510, 542, 544, 545, 547-553, and 724(a) of the Bankruptcy Code or under similar or related state or federal statutes and common law, including fraudulent transfer laws.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 5 of 39 8. "Bankruptcy Code" means title 11 of the United States Code, 11 U.S.C. 101-1532, as the same may be amended from time to time. 9. "Bankruptcy Court" means the United States Bankruptcy Court for the District of Delaware having jurisdiction over the Chapter 11 Cases, and, to the extent of the withdrawal of any reference under 28 U.S.C. 157 and/or the General Order of the District Court pursuant to section 151 of title 28 of the United States Code, the United States District Court for the District of Delaware. 10. "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure, as applicable to the Chapter 11 Cases, promulgated under section 2075 of the Judicial Code and the general, local, and chambers rules of the Bankruptcy Court. 11. "Business Day" means any day, other than a Saturday, Sunday, or "legal holiday" (as defined in Bankruptcy Rule 9006(a)). 12. "Cash" means the legal tender of the United States or the equivalent thereof. 13. "Cash Sale Proceeds" means the portion of the Purchase Price (as defined in the Purchase Agreement) payable in Cash to the Debtors Estates by the Purchaser upon consummation of the Sale Transaction by the Purchaser pursuant to the Purchase Agreement; provided that the Cash Sale Proceeds shall not include the Unsecured Creditor Recovery Pool or the SVB Cash Payment. 14. "Causes of Action" means any Claim, cause of action, controversy, right of setoff, cross claim, counterclaim, or recoupment and any claim on contracts or for breaches of duties imposed by law or in equity, demand, right, action, Lien, indemnity, guaranty, suit, obligation, liability, damage, judgment, account, defense, power, privilege, license, and franchise of any kind or character whatsoever, known, unknown, fixed or contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively, whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity, or pursuant to any other theory of law, including Avoidance Actions. 15. "Chapter 11 Cases" means the jointly administered chapter 11 cases commenced by the Debtors on the Petition Date and styled In re Fisker Automotive Holdings, Inc., No. 13-13087 (KG), which are currently pending before the Bankruptcy Court. Debtor. 16. "Claim" means a "claim" (as defined in section 101 (a)(5) of the Bankruptcy Code) against a 17. "Claims Bar Date" means the bar date by which a Proof of Claim must be or must have been Filed, as established by (a) a Final Order of the Bankruptcy Court or (b) pursuant to the Plan. 18. "Claims Objection Bar Date" means the first Business Day that is 120 days after the Effective Date; provided that the Claims Objection Bar Date may be extended by the Bankruptcy Court after notice and a hearing. Agent. 19. "Claims Register" means the official register of Claims maintained by the Notice and Claims 20. "Class" means a category of Holders of Claims or Interests as set forth in Article III hereof pursuant to section 1122(a) of the Bankruptcy Code. 21. "Committee" means the official committee of unsecured creditors appointed in the Chapter 11 Cases pursuant to section 1102(a) of the Bankruptcy Code pursuant to that certain Notice of Appointment of Official Creditor Committee, filed by the U.S. Trustee on December 5, 2013 [Docket No. 102].
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 6 of 39 22. "Committee Members" means each of the following, in each case in their capacity as a member of the Committee: (a) David M. Cohen; (b) Sven Etzelsberger; (c) Kuster Automotive Door Systems GmbH; (d) Magna E-Car USA, LLC; (e) Supercars & More SRL; and (1) TK Holdings Inc. 23. "Confirmation" means the entry of the Confirmation Order on the docket of the Chapter 11 Cases. 24. "Confirmation Date" means the date upon which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases, within the meaning of Bankruptcy Rules 5003 and 9021. 25. "Confirmation Hearing" means the hearing held by the Bankruptcy Court to consider Confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code. 26. "Confirmation Order" means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code. 27. "Consummation" means the occurrence of the Effective Date. 28. "Cure Obligations" means: all (a) amounts (or such other amount as may be agreed upon by the parties under an Executory Contract or Unexpired Lease) required to cure any monetary defaults; and (b) other obligations required to cure any non-monetary defaults under any Executory Contract or Unexpired Lease that is to be assumed by the Debtors pursuant to sections 365 or 1123 of the Bankruptcy Code. 29. "D&O Policy" means all insurance policies for directors, members, trustees, and officers liability maintained by the Debtors Estates as of the Effective Date, including, for the avoidance of doubt: (a) that certain Policy No. 5943009 03, underwritten by Zurich American Insurance Company; and (b) that Policy No. 5943009 03, underwritten by National Union Fire Insurance Company of Pittsburgh. 30. "Debtor Release" means the release given on behalf of the Debtors and their Estates to the Released Parties as set forth in Article VIII.D hereof. 31. "Debtors" means, collectively: (a) Holdings; and (b) Fisker Automotive. 32. "DEDA" means the Delaware Economic Development Authority, a body corporate and politic constituted as an instrumentality of the State of Delaware. 33. "DEDA Agreements" means, collectively: (a) the DEDA Loan Agreement; and (b) the DEDA Grant Agreement. 34. "DEDA Grant" means the financing provided by DEDA to the Debtors pursuant to the DEDA Grant Agreement. 35. "DEDA Grant Agreement" means that certain Grant Agreement dated as of December 10, 2010, between Fisker Automotive and DEDA. 36. "DEDA Loan" means the lending facility provided under or related to the DEDA Loan Agreement. 37. "DEDA Loan Claims" means any Claim arising under or related to the DEDA Loan or the DEDA Agreements. 38. "DEDA Loan Agreement" means that certain Loan and Security Agreement, dated as of December 10, 2010, between the Debtors and DEDA. 39. "Delaware Facility" shall have the meaning ascribed to it in the Purchase Agreement. 3
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 7 of 39 40. "DIP Term Sheet" means that certain Summary of Proposed Terms and Conditions for DIP Financing and Use of Cash Collateral, dated as of November 22, 2013, in the form attached as Exhibit 1 to the DIP Orders. 41. "DIP Facility" means that certain debtor-in-possession financing facility of up to $8.040 million entered into pursuant to the DIP Term Sheet. 42. "DIP Facility Claim" means any Claim arising under or related to the DIP Facility. such. 43. "DIP Lenders" means the lenders party to the DIP Term Sheet, each solely in their capacities as 44. "DIP Orders" means, collectively: (a) the Interim Order Under 11 US. C. 105, 361, 362, 363(c), 363(m), 364(c) (1), 364(c) (2), 364(c) (3), 364(d)(1), 364(e), and 507 and Bankruptcy Rules 2002, 4001 and 9014 (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral and (III) Granting Adequate Protection to Prepetition Secured Lenders [Docket No., 67]; and (b) the Final Order Under 11 U.S.C. 105, 361, 362, 363(c), 363(m), 364(c)(1), 364(c)(2), 364(c) (3), 364(d) (1), 364(e), and 507 and Bankruptcy Rules 2002, 4001 and 9014 (I) Authorizing the Debtors to Obtain Postpetition Financing, (II) Authorizing the Debtors to Use Cash Collateral and (III) Granting Adequate Protection to Prepetition Secured Lenders [Docket No..]. 45. "Disclosure Statement" means the Disclosure Statement for the Debtors Joint Plan ofliquidation Pursuant to Chapter 11 of the Bankruptcy Code, dated November 22, 2013, as amended, supplemented, or modified from time to time, including all exhibits and schedules thereto, as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code. 46. "Disclosure Statement Order" means the Order (A) Provisionally Approving the Adequacy of the Debtors Disclosure Statement, (B) Approving Solicitation and Notice Procedures With Respect to Confirmation of the Debtors Proposed Joint Plan of Liquidation, (C) Approving the Form of Various Ballots and Notices In Connection Therewith, (D) Scheduling Certain Dates With Respect Thereto, and (E) Granting Related Relief, entered on [e], 2013 [Docket No. [.]] approving the Disclosure Statement and granting related relief. 47. "Disputed" means, with respect to any Claim or Interest, any Claim or Interest that is not yet Allowed. 48. "Disputed Claims Reserve" means a Cash reserve that may be funded with a portion of the Cash Sale Proceeds for distributions to Holders of Allowed Claims and Disputed Claims if and to the extent that such Disputed Claims become Allowed Claims. 49. "Distribution Record Date" means the first Business Day that is two (2) Business Days after the Confirmation Date. 50. "DOE" means the United States Department of Energy, an agency of the United States. 51. "Effective Date" means the date selected by the Debtors that is a Business Day after the Confirmation Date on which: (a) no stay of the Confirmation Order is in effect; and (b) all conditions precedent specified in Article IX of the Plan have been satisfied or waived (in accordance with Article IX.B hereof). 52. "Entity" shall have the meaning set forth in section 101(15) of the Bankruptcy Code. 53. "Estate" means, as to each Debtor, the estate created for such Debtor on the Petition Date pursuant to sections 301 and 541 of the Bankruptcy Code. 54. "Exculpated Parties" means the Released Parties.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 8 of 39 55. "Exculpation" means the exculpation provision set forth in Article V1II.F hereof. 56. "Executoiy Contract" means a contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code. 57. "Federal Judgment Rate" means the federal judgment rate in effect as of the Effective Date. 58. "File," "Filed," or "Filing" means file, filed, or filing in the Chapter 11 Cases with the Bankruptcy Court or, with respect to the filing of a Proof of Claim, the Notice and Claims Agent. 59. "Final Order" means, as applicable, an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with respect to the relevant subject matter, which has not been reversed, stayed, modified, or amended from time to time, and as to which the time to appeal or seek certiorari has expired and no appeal or petition for certiorari has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be Filed has been resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought; provided that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules or the Local Bankruptcy Rules of the Bankruptcy Court, may be filed relating to such order shall not prevent such order from being a Final Order. 60. "Fisker Automotive" means Fisker Automotive, Inc., a Debtor in the Chapter 11 Cases. 61. "General Unsecured Claim" means any unsecured Claim, including any Lender Deficiency Claim, DEDA Loan Claim, or Related Party Note Claim, that is not: (a) an Administrative Claim; (b) a Professional Fee Claim; (c) a Section 510(b) Claim; (d) a Priority Tax Claim; or (e) an Other Priority Claim. 62. "Governmental Unit" shall have the meaning set forth in section 101(27) of the Bankruptcy Code. 63. "Holder" means any Entity holding a Claim or an Interest. 64. "Holdings" means Fisker Automotive Holdings, Inc., a Debtor in the Chapter 11 Cases. 65. "Holdings Interests" means all Interests in Holdings. 66. "Impaired" means, with respect to a Claim or Interest, or Class of Claims or Interests, "impaired" within the meaning of section 1124 of the Bankruptcy Code. 67. "Indemnification Provision" means each of the Debtors indemnification provisions currently in place whether in the bylaws, certificates of incorporation, other formation documents, board resolutions or employment contracts for the current and former directors, officers, employees, attorneys, other professionals and agents of the Debtors and such current and former directors, and officers respective Affiliates. 68. "Initial Distribution Date" means the date on which the Debtors or the Liquidator, as applicable, make initial distributions to Holders of Claims pursuant to the Plan, which shall be a date selected by the Debtors and in any event no later than 7 Business Days after the Effective Date with respect to Claims. 69. "Intercompany Claim" means any Claim held by a Debtor against another Debtor. 70. "Intercompany Interest" means any Interest in a Debtor held by another Debtor. 71. "Interest" means any interest, equity, or share in the Debtors, including all options, warrants, or other rights to obtain such an interest or share in such Debtor, whether or not certificated, transferable, preferred, common, voting, or denominated "stock" or a similar security, including any Claim subject to subordination under section 510(b) of the Bankruptcy Code arising therefrom. 72. "Judicial Code" means title 28 of the United States Code, 28 U.S.C. 1-4001.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 9 of 39 73. "Lender Deficiency Claim" means any means any Claim against the Debtors arising from any portion of, or related to, the Senior Loan (to the extent not satisfied by the Purchaser Credit Bid) or the S\TB Loan that is not Allowed hereunder as a Senior Loan Claim or SVB Loan Claim, as applicable, that is not a Secured Claim. 74. "Lien" shall have the meaning set forth in section 10 1(37) of the Bankruptcy Code. 75. "Liquidator" means such Entity as may be designated by the Debtors as liquidator pursuant to the Liquidator Agreement and Article IV12 hereof to effectuate the Wind Down. 76. "Liquidator Agreement" means the agreement governing, among other things, the retention and duties of the Liquidator, if applicable, as described in Article IV.I hereof, which shall be in form and substance reasonably acceptable to the Debtors and included as an exhibit to the Plan Supplement. 77. "Local Bankruptcy Rules" means the local rules for the United States Bankruptcy Court for the District of Delaware. 78. "Notice and Claims Agent" means Rust Consulting/Omni Bankruptcy, in its capacity as notice and claims agent and administrative advisor for the Debtors Estates pursuant to 28 U.S.C. 156(c). 79. "Other Priority Claim" means a Claim asserting a priority described in section 507(a) of the Bankruptcy Code, other than: (a) an Administrative Claim; (b) a Professional Fee Claims; (c) a Priority Tax Claim; (d) a Section 510(b) Claim; (e) an Other Priority Claim; or (f) a DIP Facility Claim. 80. "Other Secured Claim" means a Secured Claim other than a Senior Loan Claim, an SVB Loan Claim, or a DIP Facility Claim. 81. "Person" shall have the meaning set forth in section 101(41) of the Bankruptcy Code. 82. "Petition Date" means November 22, 2013, the date on which the Debtors commenced the Chapter 11 Cases. 83. "Plan" means this Debtors Joint Plan of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code, as amended, supplemented, or modified from time to time, including the Plan Supplement, which is incorporated in the Plan by reference and made part of this Plan as if set forth in the Plan. 84. "Plan Supplement" means the compilation of documents and forms of documents, schedules, and exhibits to the Plan, to be Filed prior to Confirmation, as amended, supplemented, or modified from time to time in accordance with the terms hereof, the Bankruptcy Code, and the Bankruptcy Rules, including: (a) a list of Executory Contracts and Unexpired Leases to be assumed pursuant to the Plan, and as may be amended by the Debtors prior to the Effective Date; (b) a schedule of retained Causes of Action; and (c) the Liquidator Agreement and the identity of the Liquidator. 85. "Priority Tax Claim" means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code. 86. "Pro Rata" means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims in that Class, or the proportion that Allowed Claims in a particular Class bear to the aggregate amount of Allowed Claims in a particular Class and other Classes entitled to share in the same recovery as such Allowed Claim under the Plan. 87. "Professional" means any entity retained in the Chapter 11 Cases in accordance with sections 327, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered and expenses incurred pursuant to sections 326, 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 10 of 39 88. "Professional Fee Claims" mean all Claims for accrued fees and expenses (including success fees) for services rendered and expenses incurred by a Professional from the Petition Date through and including the Confirmation Date, to the extent such fees and expenses have not been paid or are disallowed pursuant to an order of the Bankruptcy Court and regardless of whether a fee application has been filed for such fees and expenses. 89. "Professional Fee Escrow" means an interest bearing escrow account to be funded on the Effective Date from the Remaining Assets in an amount equal to the Professional Fee Claim Estimate. 90. "Professional Fee Claim Estimate" means the amount of Professional Fee Claims that are estimated to be accrued but unpaid as of the Effective Date by the Debtors in consultation with each applicable Professional. Cases. 91. "Proof of Claim" means a proof of Claim Filed against any of the Debtors in the Chapter 11 92. "Purchase Agreement" means that certain asset purchase agreement between the Debtors and the Purchaser. assigns. 93. "Purchaser" means Hybrid Tech Holdings, LLC, together with its successors and permitted 94. "Purchaser Credit Bid" means the $75 million credit bid by Hybrid Tech Holdings, LLC, as assignee of Hybrid Technology, LLC, on account of the Senior Loan Claims pursuant to section 363(k) of the Bankruptcy Code in connection with the Sale Transaction. 95. "Related Party Note Claim" means any claim on account of the various promissory notes in favor of each of the Related Party Lenders and intended to be used by the Debtors to fund prepetition working capital needs and for other prepetition general corporate purposes. 96. "Related Party Lenders" means Ace Strength International Limited, FAH Loan Purchase Fund, LLC, GSR Principals Fund IV, L.P., GSR Special Situation I Limited, GSR Ventures IV, L.P., JR Holdings IV, Ltd., and SugarPine Kids Trust and certain of their respective Affiliates in their respective capacity as lenders from time to time under the Related Party Note Claims. 97. "Released Parties" means each of the Debtors current and former officers, directors, managers, principals, employees, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, in each case in their capacity as such. 98. "Releasing Parties" means: (a) all Holders of Claims who vote to accept the Plan; (b) all Holders of Claims who are deemed to accept the Plan; (c) the DIP Lenders; (d) the Purchaser; and (e) with respect to each of the foregoing Entities, their respective current and former officers, directors, managers, principals, employees, agents, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, in each case in their capacity as such. 99. "Remaining Assets" means, for each Debtor, such Debtor s assets, other than the Acquired Assets or the Cash Sale Proceeds. For the avoidance of doubt, the Remaining Assets shall include the Debtors rights to enforce the Purchase Agreement, including Section 1.9 thereof. 100. "Sale Transaction" means that certain transaction between the Debtors and the Purchaser as set forth in the Purchase Agreement. 101. "Schedules" means, collectively, the schedules of assets and liabilities, schedules of Executory Contracts and Unexpired Leases, and statements of financial affairs Filed by the Debtors pursuant to section 521 of the Bankruptcy Code and in substantial accordance with the Official Bankruptcy Forms, as the same may have been amended, modified, or supplemented from time to time. 7
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 11 of 39 102. "Section 510(b) Claims" means any Claim subject to subordination under section 510(b) of the Bankruptcy Code; provided that a Section 510(b) Claim shall not include any Claim subject to subordination under section 510(b) of the Bankruptcy Code arising from or related to an Interest. 103. "Secured" means when referring to a Claim: (a) secured by a Lien on property in which the applicable Estate has an interest, which Lien is valid, perfected, and enforceable pursuant to applicable law or by reason of a Bankruptcy Court order, or that is subject to setoff pursuant to section 553 of the Bankruptcy Code, to the extent of the value of the creditor s interest in such Estate s interest in such property or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) of the Bankruptcy Code; or (b) otherwise Allowed pursuant to the Plan or a Final Order as a Secured Claim. 104. "Senior Claims" means, collectively: (a) Administrative Claims; (b) Priority Tax Claims; (c) Other Priority Claims; and (d) Other Secured Claims. 105. "Senior Claims Assets" means any and all property of the Estates as of the Effective Date, including the Remaining Assets, the Cash Sale Proceeds, and all Causes of Actions, but not including, for the avoidance of doubt, proceeds from any Causes of Action expressly waived, relinquished, exculpated, released, compromised, or settled in the Plan (including pursuant to Article VIII.D of the Plan) or a Final Order; provided that the Senior Claim Assets shall not include: (a) the Unsecured Creditor Recovery Pool; (b) the SVB Cash Payment; or (c) the Wind Down Reserve. 106. "Senior Loan Claim" means any Claim arising under or related to the Senior Loan to the extent such Claim is a Secured Claim. 107. "Senior Loan" means the loan facilities provided pursuant to the Senior Loan Agreement. 108. "Senior Secured Lender" means the Purchaser, as successor in interest to the DOE with respect to the Senior Loan Agreement. 109. "Senior Loan Agreement" means that certain Loan Arrangement and Reimbursement Agreement, dated as of April 22, 2010, between the Debtors and the Senior Secured Lender, as amended, supplemented or otherwise modified from time to time. 110. "SVB" means Silicon Valley Bank. 111. "SVB Cash Payment" means the $225,000 in Cash funded by the Purchaser (in addition to the Cash Sale Proceeds and Unsecured Creditor Recovery Pool) in accordance with the Purchase Agreement. Notwithstanding anything to the contrary in the Purchase Agreement or the Plan, the SVB Cash Payment shall be subject in all respect to the Carve-Out (as defined in the DIP Orders). 112. "SVB Loan" means the term loan facility and an asset-based revolving credit facility provided pursuant to the SVB Loan Agreement. 113. "SVB Loan Agreement" means that certain Loan Agreement dated as of July 30, 2010, between Fisker Automotive, as borrower, Holdings, as obligor, and SVB, as lender. 114. "SVB Loan Claims" means any Claim arising under or related to the SVB Loan to the extent that such Claim is Secured pursuant to section 506(a) of the Bankruptcy Code. 115. "Unexpired Lease" means a lease of nonresidential real property to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code. 116. "United States" means the United States of America and its agencies. 117. "U.S. Trustee" means the United States Trustee for the District of Delaware.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 12 of 39 118. "U.S. Trustee Fees" means fees arising under 28 U.S.C. 1930(a)(6) and, to the extent applicable, accrued interest thereon arising under 31 U.S.C. 3717. 119. "Unimpaired" means, with respect to a Class of Claims or Interests, a Claim or an Interest that is unimpaired within the meaning of section 1124 of the Bankruptcy Code. 120. "Unsecured Creditor Recovery Pool" means the $500,000 in Cash funded by the Purchaser (in addition to the Cash Sale Proceeds and SVB Cash Payment) in accordance with the Purchase Agreement in the event that Class 5A or Class 5B votes to accept the Plan. Notwithstanding anything to the contrary in the Purchase Agreement or the Plan, the Unsecured Creditor Recovery Pool shall be subject in all respect to the Carve-Out (as defmed in the DIP Orders). 121. "Wind Down" means the wind down, dissolution, and liquidation of the Debtors Estates following the Effective Date as set forth in Article IV.I hereof. 122. "Wind Down Reserve" means Cash in an amount not less than $500,000, including available Cash, amounts to be funded through the Cash Sale Proceeds, and the "Wind-down budget" provided by the DIP Orders and for which prior to the Effective Date, the Debtors, and on and after the Effective Date, the Liquidator, shall have the right to reallocate such amount to the Disputed Claims Reserve in their reasonable business judgment. B. Rules ofinterpretation For purposes herein: (1) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (2) any reference in the Plan to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms and conditions means that the referenced document shall be substantially in that form or substantially on those terms and conditions; (3) any reference in the Plan to an existing document or exhibit having been Filed or to be Filed shall mean that document or exhibit, as it may thereafter be amended, modified, or supplemented from time to time; (4) unless otherwise specified, all references in the Plan to "Articles" are references to Articles hereof or hereto; (5) unless otherwise stated, the words "herein," "hereof," and "hereto" refer to the Plan in its entirety rather than to a particular portion of the Plan; (6) captions and headings to Articles are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation hereof; (7) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; and (8) any term used in capitalized form in the Plan that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be. C. Computation of Time The provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed in the Plan. D. Governing Law Except to the extent the Bankruptcy Code or Bankruptcy Rules apply, and subject to the provisions of any contract, lease, instrument, release, indenture, or other agreement or document entered into expressly in connection herewith, the rights and obligations arising hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof. E. Reference to Monetary Figures All references in the Plan to monetary figures shall refer to currency of the United States, unless otherwise expressly provided in the Plan.
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 13 of 39 F. Controlling Document In the event of an inconsistency between the Plan and the Disclosure Statement, the terms of the Plan shall control in all respects. In the event of an inconsistency between the Plan and the Plan Supplement, the Plan shall control. In the event of any inconsistency between the Plan and the Confirmation Order, the Confirmation Order shall control. ARTICLE H. ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS, AND PROFESSIONAL FEE CLAIMS A. Administrative Claims Unless otherwise agreed to by the Holder of an Allowed Administrative Claim or Allowed Priority Tax Claim, as applicable, and the Debtors or the Liquidator, as applicable, to the extent an Allowed Administrative Claim or Allowed Priority Tax Claim, as applicable, has not already been paid in full during the Chapter 11 Cases, each Holder of an Administrative Claim or a Priority Tax Claim (to the extent such Claim is Allowed) will receive in exchange for full and final satisfaction, settlement, release, and compromise (subject to Article VIII of the Plan) of its Claim its Pro Rata share of the Senior Claims Assets in accordance with the priorities set forth in sections 503 and 507 of the Bankruptcy Code. Except as otherwise provided by a Final Order previously entered by the Bankruptcy Court or as provided by Article II.B hereof, unless previously Filed, requests for payment of Administrative Claims, other than requests for payment of Professional Fee Claims, must be Filed and served on the Debtors no later than the Administrative Claims Bar Date pursuant to the procedures specified in the Confirmation Order and the notice of entry of the Confirmation Order. Holders of Administrative Claims that are required to File and serve a request for payment of such Administrative Claims that do not File and serve such a request by the Administrative Claims Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Claims against the Debtors or their property, and such Administrative Claims shall be deemed compromised, settled, and released as of the Effective Date. Objections to such requests must be Filed and served on the requesting party by the Administrative Claims Objection Bar Date. B. DIP Facility Claims As of the Effective Date, the DIP Facility Claims will be deemed waived, and the Holders thereof shall be deemed to have waived any such DIP Facility Claims, in each instance in accordance with the terms of the Purchase Agreement. Notwithstanding anything herein to the contrary, all Liens, Claims, and encumbrances supporting the Carve-Out (as defined in the DIP Orders) shall remain in full force and effect and shall be senior to all other Claims otherwise junior to the Carve-Out (as defined in the DIP Orders) until all obligations benefitting from the Carve-Out (as defined in the DIP Orders) have been paid in full. C. Professional Fee Claims Professional Fee Escrow In accordance with this Article II.C. 1 of the Plan, as soon as reasonably practicable after the Confirmation Date and no later than the Effective Date, the Debtors shall establish and fund the Professional Fee Escrow. The Debtors shall fund the Professional Fee Escrow with Cash equal to the Professional Fee Escrow Estimate. Except as provided in the Plan, the Professional Fee Escrow shall be funded on the Effective Date and maintained in trust for the Professionals and shall not be considered property of the Debtors Estates. When all Professional Fee Claims have been paid in full, amounts remaining in the Professional Fee Escrow, if any, shall be distributed to the Wind Down Reserve. 10
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 14 of 39 2. Final Fee Applications All final requests for payment of Professional Fee Claims shall be filed no later than the first Business Day that is 60 days after the Effective Date. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and prior Bankruptcy Court orders, the Allowed amounts of such Professional Fee Claims shall be determined by the Bankruptcy Court. The amount of Professional Fee Claims owing to the Professionals shall be paid in Cash to such Professionals from funds held in the Professional Fee Escrow when such Claims are Allowed by a Final Order. To the extent that funds held in the Professional Fee Escrow are unable to satisfy the amount of Professional Fee Claims owing to the Professionals, such Professionals shall have an Allowed Administrative Claim for any such deficiency, which Allowed Administrative Claim shall be satisfied in accordance with the Plan. After all Allowed Professional Fee Claims have been paid in full, the Final Order allowing such Professional Fee Claims may direct the escrow agent to return any excess amounts to the Wind Down Reserve. D. Treatment of Certain Claims and Interests Notwithstanding anything to the contrary in the Plan, the failure to object to Confirmation of this Plan by a Holder of an Administrative Expense Claim, Priority Tax Claim, or Other Priority Claim against any Debtor shall be deemed to be such Holder s agreement to receive treatment for such Claim (to the extent such Claim is Allowed) that is different from that set forth in 28 U.S.C. I 129(a)(9). E. U.S. Trustee Statutory Fees The Debtors shall pay all U.S. Trustee Fees for each quarter (including any fraction thereof) until the Chapter 11 Cases are converted, dismissed, or closed, whichever occurs first. ARTICLE III. CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims, DIP Facility Claims, Professional Fee Claims, and Priority Tax Claims have not been classified and thus are excluded from the Classes of Claims and Interests set forth in this Article III. A. Summary of Classification of Claims and Interests All Claims and Interests, other than Administrative Claims, DIP Facility Claims, Professional Fee Claims, and Priority Tax Claims, are classified in the Classes set forth in this Article III for all purposes, including voting, Confirmation, and distributions pursuant to the Plan and pursuant to sections 1122 and 1123 (a)(1) of the Bankruptcy Code. A Claim or Interest is classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and is classified in other Classes to the extent that any portion of the Claim or Interest qualifies within the description of such other Classes. A Claim or Interest is also classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Interest is an Allowed Claim or Allowed Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date. The Debtors reserve the right to withdraw the Plan with respect to one or more Debtors while seeking Confirmation or approval of the Plan with respect to all other Debtors. B. Class Identification The classification of Claims and Interests against each Debtor (as applicable) pursuant to the Plan is as set forth below. The Plan shall apply as a separate Plan for each of the Debtors, and the classification of Claims and Interests set forth herein shall apply separately to each of the Debtors. All of the potential Classes for the Debtors are set forth herein. Certain of the Debtors may not have Holders of Claims or Interests in a particular Class or Classes, and such Claims shall be treated as set forth in Article III.E hereof. For all purposes under the Plan, each Class will contain sub-classes for each of the Debtors (i.e., there will be nine (9) Classes for each Debtor). 11
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 15 of 39.ci Claims and;interests.. ; JVotihg:Rigl1ts. 1 Other Priority Claims.. Unimpaired Not Entitled to Vote (Presumed to Accept) 2 Senior Loan Claims Impaired Entitled to Vote 3 Other Secured Claims Unimpaired Not Entitled to Vote (Presumed to Accept) 4 SVB Loan Claims Impaired Entitled to Vote 5A General Unsecured Claims against Holdings Impaired Entitled to Vote 5B General Unsecured Claims against Fisker Automotive Impaired Entitled to Vote 6 Intercompany Claims. Impaired Not Entitled to Vote (Deemed to Reject) 7 Section 510(b) Claims. Impaired Not Entitled to Vote (Deemed to Reject) 8 Intercompany Interests Impaired 9 Holdings Interests Impaired Not Entitled to Vote (Deemed to Reject) Not Entitled to Vote (Deemed to Reject) C. Classification of Claims and Interests Class 1Other Priority Claims (a) (b) (c) Classification: Class I consists of all Other Priority Claims. Treatment: Except to the extent that a Holder of an Allowed Class 1 Claim agrees to a less favorable treatment of its Allowed Claim, in full and final satisfaction, compromise, settlement, and release of and in exchange for each Allowed Class 1 Other Priority Claim, each such Holder shall be paid in full with proceeds of the Senior Claims Assets in accordance with the priorities set forth in Bankruptcy Code. Voting: Class 1 is Unimpaired. Holders of Claims in Class 1 are not entitled to vote to accept or reject the Plan. 2. Class 2Senior Loan Claims (a) (b) Classification: Class 2 consists of all Senior Loan Claims. Allowance: Class 2 Claims shall be allowed in an amount equal to the Purchaser Credit Bid. 12
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 16 of 39 (c) Treatment: Each Allowed Class 2 Claim shall be satisfied, compromised, settled, and released in full in exchange for the Purchaser Credit Bid. (d) Voting: Class 2 is Impaired. Holders of Claims in Class 2 are entitled to vote to accept or reject the Plan. Class 3Other Secured Claims (a) (b) Classification: Class 3 consists of all Other Secured Claims. Treatment: Except to the extent that a Holder of an Allowed Class 3 Claim agrees to a less favorable treatment, in full and final satisfaction, compromise, settlement, and release of and in exchange for each Class 3 Claim, each such Holder shall receive, at the Debtors election: (i) (ii) (iii) payment in full in Cash of such Holder s Allowed Other Secured Claim with proceeds from the Senior Claims Assets; the Collateral securing such Holder s Allowed Other Secured Claim; or such other treatment rendering such Holder s Allowed Other Secured Claim Unimpaired. (c) Voting: Class 3 is Unimpaired. Holders of Claims in Class 3 are not entitled to vote to accept or reject the Plan. 4. Class 4SVB Loan Claims (a) (b) (c) Classification: Class 4 consists of all SVB Loan Claims. Treatment: Except to the extent that a Holder of an Allowed Class 4 Claim agrees to a less favorable treatment, in full and final satisfaction, compromise, settlement, and release of and in exchange for each Class 4 Claim, each such Holder shall receive its Pro Rata Share of the SVB Cash Payment. Voting: Class 4 is Impaired. Holders of Claims in Class 4 are entitled to vote to accept or reject the Plan. Class 5AGeneral Unsecured Claims against Holdings (a) (b) Classification: Class 5A consists of all General Unsecured Claims against Holdings. Treatment: Except to the extent that a Holder of an Allowed Class 5A Claim agrees to a less favorable treatment, in full and final satisfaction, compromise, settlement, and release of and in exchange for each Class 5A Claim, each such Holder shall receive: (i) (ii) if Class 5A rejects the Plan, each such Holder shall receive a Pro Rata distribution of the Cash proceeds from the Senior Claims Assets after all Allowed Senior Claims have been paid in full in accordance with the priorities set forth in Bankruptcy Code; and if Class 5A accepts the Plan, each such Holder shall receive a Pro Rata distribution of (x) of the Cash proceeds from the Senior Claims Assets after all Allowed Senior Claims have been paid in full in accordance with the priorities set forth in Bankruptcy Code and (y) the Unsecured Creditor Recovery Pool, 13
Case 13-13087-KG Doc 127 Filed 12/10/13 Page 17 of 39 which shall be subject to the Carve-Out (as defined in the DIP Orders) in all respects. (c) Restrictions on Distributions: Each Holder of an Allowed Class 5A Claim shall not be entitled to any distribution from the Senior Claims Assets or their Cash proceeds until: (i) (ii) all Allowed Senior Claims have been paid in full; or a Disputed Claims Reserve has been established for the payment of all such Senior Claims. (d) Conditional Waiver of Lender Deficiency Claim: If Class 5A votes to accept the Plan, the Purchaser shall waive, and shall be deemed to have waived, any Lender Deficiency Claim arising from or related to the Senior Loan. (e) Voting: Class 5A is Impaired. Holders of Claims in Class 5A are entitled to vote to accept or reject the Plan. 6. Class 5BGeneral Unsecured Claims against Fisker Automotive (a) Classification: Class 5B consists of all General Unsecured Claims against Fisker Automotive. (b) Treatment: Except to the extent that a Holder of an Allowed Class 5B Claim agrees to a less favorable treatment, in full and final satisfaction, compromise, settlement, and release of and in exchange for each Class 5B Claim, each such Holder shall receive: (i) (ii) if Class 5B rejects the Plan, each such Holder shall receive a Pro Rata distribution of the Cash proceeds from the Senior Claims Assets after all Allowed Senior Claims have been paid in full in accordance with the priorities set forth in Bankruptcy Code; and if Class 5B accepts the Plan, each such Holder shall receive a Pro Rata distribution of (x) of the Cash proceeds from the Senior Claims Assets after all Allowed Senior Claims have been paid in full in accordance with the priorities set forth in Bankruptcy Code and (y) the Unsecured Creditor Recovery Pool, which shall be subject to the Carve-Out (as defined in the DIP Orders) in all respects. (c) Restrictions on Distributions: Each Holder of an Allowed Class 5B Claim shall not be entitled to any distribution from the Senior Claims Assets or their Cash proceeds until: (i) (ii) all Allowed Senior Claims have been paid in full; or a Disputed Claims Reserve has been established for the payment of all such Senior Claims. (d) Conditional Waiver oflender Deficiency Claim: If Class 5B votes to accept the Plan, the Purchaser shall waive, and shall be deemed to have waived, any Lender Deficiency Claim arising from or related to the Senior Loan. (e) Voting: Class 5B is Impaired. Holders of Claims in Class 5B are entitled to vote to accept or reject the Plan. 14