OF THE BANKRUPTCY CODE, OF THE RELEASE AND SETTLEMENT CONTAINED IN
SECTION 10.5 OF THE PLAN, AND FURTHER, SHALL CONSTITUTE THIS COURT'S FINDING
THAT THE SUCH SETTLEMENT AND RELEASE IS: (A) IN EXCHANGE FOR THE GOOD AND
VALUABLE CONSIDERATION PROVIDED BY THE RELEASED PARTIES; (B) A GOOD FAITH
SETTLEMENT AND COMPROMISE OF THE CLAIMS RELEASED BY THE DEBTOR IN SECTION 10.5
OF THE PLAN; (C) IN THE BEST INTERESTS OF THE DEBTOR AND ALL HOLDERS OF CLAIMS
AND EQUITY INTERESTS; (D) FAIR, EQUITABLE AND REASONABLE; (E) GIVEN AND MADE
AFTER REASONABLE INVESTIGATION BY THE DEBTOR AND AFTER NOTICE AND OPPORTUNITY
FOR HEARING; AND (F) A BAR TO EITHER THE DEBTOR OR THE REORGANIZED DEBTOR
ASSERTING ANY CLAIM RELEASED IN SECTION 10.5 OF THE PLAN AGAINST ANY OF THE
RELEASED PARTIES; PROVIDED, THAT SECTION 10.5 OF THE PLAN SHALL NOT OPERATE AS A
WAIVER OR RELEASE FROM ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACT OR
OMISSION WHICH IS DETERMINED BY FINAL ORDER OF A COURT OF
36
COMPETENT JURISDICTION TO HAVE CONSTITUTED GROSS NEGLIGENCE, WILLFUL MISCONDUCT,
INTENTIONAL FRAUD OR CRIMINAL CONDUCT.
(f) Exculpation. EXCEPT WITH RESPECT TO ANY ACTS OR OMISSIONS EXPRESSLY SET
FORTH IN AND PRESERVED BY THE PLAN, THE PLAN SUPPLEMENT OR RELATED DOCUMENTS,
THE EXCULPATED PARTIES SHALL NEITHER HAVE NOR INCUR ANY LIABILITY TO ANY ENTITY
OR PERSON FOR ANY PREPETITION OR POSTPETITION ACT TAKEN OR NOT TAKEN IN
CONNECTION WITH, OR ARISING FROM OR RELATING IN ANY WAY TO, THE CHAPTER 11 CASE,
INCLUDING, WITHOUT LIMITATION, THE OPERATION OF THE DEBTOR'S BUSINESSES DURING
THE PENDENCY OF THIS CHAPTER 11 CASE; FORMULATING, NEGOTIATING, PREPARING,
DISSEMINATING, IMPLEMENTING AND/OR EFFECTING THE PLAN SUPPORT AGREEMENT, THE
DISCLOSURE STATEMENT AND THE PLAN (INCLUDING THE PLAN SUPPLEMENT AND ANY RELATED
CONTRACT, INSTRUMENT, RELEASE OR OTHER AGREEMENT OR DOCUMENT CREATED OR ENTERED
INTO IN CONNECTION THEREWITH); THE SOLICITATION OF VOTES FOR THE PLAN AND THE
PURSUIT OF CONFIRMATION AND CONSUMMATION OF THE PLAN; THE ADMINISTRATION OF THE
PLAN AND/OR THE PROPERTY TO BE DISTRIBUTED UNDER THE PLAN; THE OFFER AND
ISSUANCE OF ANY SECURITIES UNDER THE PLAN; AND OR ANY OTHER PREPETITION OR
POSTPETITION ACT TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH OR IN
CONTEMPLATION OF THE RESTRUCTURING OF THE DEBTOR. IN ALL RESPECTS, EACH
EXCULPATED PARTY SHALL BE ENTITLED TO RELY
37
UPON THE ADVICE OF COUNSEL CONCERNING HIS, HER OR ITS RESPECTIVE DUTIES UNDER,
PURSUANT TO OR IN CONNECTION WITH, THE PLAN. NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY, NOTHING IN THE FOREGOING "EXCULPATION" SHALL EXCULPATE ANY PERSON
OR ENTITY FROM ANY LIABILITY THAT IS DETERMINED IN A FINAL ORDER TO HAVE
RESULTED FROM ANY ACT OR OMISSION CONSTITUTING FRAUD, WILLFUL MISCONDUCT, GROSS
NEGLIGENCE, OR CRIMINAL CONDUCT, IN EACH CASE, THAT CAUSES DAMAGES, OR ULTRA
VIRES ACTS AS DETERMINED BY A FINAL ORDER.
(g) Retention of Causes of Action/Reservation of Rights. In accordance with
section 1123(b) of the Bankruptcy Code, but subject to the releases set forth in
sections 10.4 and 10.5 of the Plan,