19.
The Plan Releases set forth in Section III.D.7 of the Plan are
approved in all respects, are incorporated herein in their entirety, are so ordered
and shall be immediately effective on the Effective Date of the Plan without further
order or action on the part of the Court, any of the parties to such releases or any
other party.
20.
Without limiting any other applicable provisions of, or releases
contained in, the Plan, this Order or any contracts, instruments, releases,
agreements or documents to be entered into or delivered in connection with the
Plan, as of the Effective Date, in consideration for the obligations of the City under
the Plan and the consideration and other contracts, instruments, releases,
agreements or documents to be entered into or delivered in connection with the
Plan (including the State Contribution Agreement), each holder of a Claim that
voted in favor of the Plan, to the fullest extent permissible under law, is hereby
deemed to forever release, waive and discharge all Liabilities in any way relating
to: (a) the City, the Chapter 9 Case (including the authorization given to file the
Chapter 9 Case), the Plan, the Exhibits or the Disclosure Statement, in each case
that such holder has, had or may have against the City or its current and former
officials, officers, directors, employees, managers, attorneys, advisors and
professionals, each acting in such capacity (and, in addition to and without limiting
the foregoing, in the case of any Emergency Manager, in such Emergency
Manager's capacity as an appointee under PA 436), provided that, for the
avoidance of doubt, any person or entity designated to manage the Chapter 9 Case
for the City after the Emergency Manager's term is terminated, whether such
person or entity acts as an employee, advisor or contractor to the City or acts as an
employee, agent, contractor or appointee of the State under any applicable state
law, shall be treated the same as an employee of the City hereunder; and
(b) (i) Claims that are compromised, settled or discharged under or in connection
with the Plan, (ii) the Chapter 9 Case (including the authorization given to file the
Chapter 9 Case), (iii) the Plan, (iv) the Exhibits, (v) the Disclosure Statement or
(vi) the DIA Settlement, in each case that such holder has, had or may have against
the City's Related Entities, the State, the State Related Entities and the Released
Parties; provided, however, that any such Liability of the Foundations, the DIA
Funders and the CFSEM Supporting Organization and their Related Entities shall
be released only to the extent that such Liability, if any, arises from any such
entity's participation in the DIA Settlement.
21.
Nothing in paragraph 20 hereof shall (a) affect the liability of
the City, its Related Entities and the Released Parties that otherwise would result
from any act or omission to the extent that act or omission subsequently is
determined in a Final Order to have constituted gross negligence or willful
misconduct; or (b) release (i) the City's obligations under the Plan or (ii) any
defenses that any party may have against the City, its Related Entities, the State,
the State Related Entities or the Released Parties.
22.
For the avoidance of doubt, notwithstanding anything in the
Plan or this Order (including paragraph 20) to the contrary, claims against officers
or employees of the City in their individual capacity under 42 U.S.C. § 1983 shall
not be released.
23.
If the State Contribution Agreement is consummated, each
holder of a Pension Claim will be deemed forever to release, waive and discharge
all Liabilities arising from or related to the City, the Chapter 9 Case, including the
authorization given to file the Chapter 9 Case, the Plan, all Exhibits, the Disclosure
Statement, PA 436 and its predecessor or replacement statutes, and Article IX,
Section 24 of the Michigan Constitution that such party has, had or may have
against the State and any State Related Entities. For the avoidance of doubt, the
foregoing sentence does not provide for a release, waiver or discharge of
obligations of the City that are established in the Plan or that arise from and after
the Effective Date with respect to (a) pensions as modified by the Plan or
(b) labor-related obligations, which post-Effective Date obligations shall be
enforceable against the City or its representatives by active or retired employees or
their collective bargaining representatives to the extent permitted by applicable
non-bankruptcy law or the Plan, or, with respect to pensions only, the GRS or the
PFRS.
24.
As a condition to the State funding, the State and certain
parties, including Michigan Council 25, Sub-Chapter 98, Local 3308 and
Local 917 of AFSCME, entered into certain Support and Release Agreements and,
for the avoidance of doubt, in the event of an express conflict between any such
Support and Release Agreement, on the one hand, and the Plan, Plan Supplements
or this Order, on the other hand, as to the parties to these Support and Release
Agreements, their respective Support and Release Agreement shall govern.
25.
Notwithstanding Sections III.D.5 through III.D.7 and IV.L of
the Plan, paragraph Z of the above findings (titled "Plan Releases") and
paragraphs 19 through 21 and 29 through 33 hereof, except as set forth in the COP
Swap Settlement, nothing in the Plan or this Order shall or shall be deemed to
provide a release by the COP Swap Counterparties of any Liabilities related to the
COPs, the COP Service Corporations, the Transaction Documents (as defined in
the COP Swap Settlement), the COP Swap Settlement or the COP Swap Settlement
Approval Order.
26.
Without limiting any other applicable provisions of, or releases
contained in, the Plan or any contracts, instruments, releases, agreements or
documents to be entered into or delivered in connection with the Plan, as of the
Effective Date, in consideration for the obligations under the Plan and the
consideration and other contracts, instruments, releases, agreements or documents
to be entered into or delivered in connection with the Plan, each Settling COP
Claimant shall be, and hereby is, to the fullest extent permitted under law, deemed
to forever release, waive and discharge all Liabilities relating to COP Documents
such Settling COP Claimant has, had or may have against the (a) the GRS,
(b) the PFRS or (c) Related Entities of either the GRS or the PFRS. At the
direction of FGIC, which shall be, and hereby is, deemed given on the Effective
Date, the COP Contract Administrator shall have irrevocably agreed (on behalf of
itself, any successors and each FGIC COP Holder) to release and not to sue any
COP Holder or any COP Insurer on behalf of any FGIC COP Holder, COP Insurer,
the Detroit Retirement Systems Funding Trust 2005 or the Detroit Retirement
Systems Funding Trust 2006 in connection with any liability arising in connection
with or related to (a) Sections 6.5 and 9.1 of the Contract Administration
Agreements, (b) Section 8.03 of the COP Service Contracts, (c) distributions made
pursuant to or in connection with Section II.B.3.p.i.A of the Plan, (d) the
FGIC/COP Settlement or (e) the Syncora Settlement. On the Effective Date,
Syncora and FGIC shall be, and hereby are, to the fullest extent permitted under
law, deemed to forever mutually release, waive and discharge all liabilities against
each other relating to distributions made pursuant to or in connection with
Section II.B.3.p.i.A of the Plan, Sections 6.5 and 9.1 of the Contract
Administration Agreements or Section 8.03 of the COP Service Contracts.
27.
The exculpation provision set forth in Section III.D.6 of the
Plan is approved in all respects, is incorporated herein in its entirety, is so ordered
and shall be immediately effective on the Effective Date of the Plan without further
order or action on the part of the Court, any of the parties to such exculpation or
any other party. From and after the Effective Date, to the fullest extent permitted
under applicable law and except as expressly set forth in this paragraph, neither the
City; its Related Entities (including the members of the City Council, the Mayor
and the Emergency Manager), to the extent a claim arises from actions taken by
such Related Entity in its capacity as a Related Entity of the City; the State; the
State Related Entities; the Exculpated Parties; nor the Released Parties shall have
or incur any liability to any person or Entity for any act or omission in connection
with, relating to or arising out of the City's restructuring efforts and the Chapter 9
Case, including the authorization given to file the Chapter 9 Case, the formulation,
preparation, negotiation, dissemination, consummation, implementation,
confirmation or approval (as applicable) of the Plan, the property to be distributed
under the Plan, the settlements implemented under the Plan, the Exhibits, the
Disclosure Statement, any contract, instrument, release or other agreement or
document provided for or contemplated in connection with the consummation of
the transactions set forth in the Plan or the management or operation of the City;
provided that the foregoing provisions shall, and hereby do, apply to (a) the LTGO
Exculpated Parties solely in connection with acts or omissions taken in connection
with the LTGO Settlement Agreement or the Plan (as it relates to the LTGO
Settlement Agreement), (b) the UTGO Exculpated Parties solely in connection
with acts or omissions taken in connection with the UTGO Settlement Agreement
or the Plan (as it relates to the UTGO Settlement Agreement), (c) the DWSD
Exculpated Parties solely in connection with acts or omissions taken in connection
with the DWSD Tender, DWSD Tender Motion or DWSD Tender Order, (d) the
Syncora Exculpated Parties solely in connection with acts or omissions taken in
connection with the Syncora Settlement Documents and any actions or litigation
positions taken by the Syncora Exculpated Parties in the Chapter 9 Case, (e) the
FGIC/COP Exculpated Parties solely in connection with acts or omissions taken in
connection with the FGIC/COP Settlement Documents and any actions or litigation
positions taken by the FGIC/COP Exculpated Parties in the Chapter 9 Case, (f) the
RDPMA Exculpated Parties and (g) the COP Agent, solely in its capacity as such
and solely in connection with any Distributions made pursuant to the terms of the
Plan; provided, further, that the foregoing provisions of this paragraph shall not
affect the liability of the City, its Related Entities, the State, the State Related
Entities, the Released Parties and the Exculpated Parties that otherwise would
result from any such act or omission to the extent that such act or omission is
determined in a Final Order to have constituted gross negligence or willful
misconduct or any act or omission occurring before the Petition Date. The City, its
Related Entities (with respect to actions taken by such Related Entities in their
capacities as Related Entities of the City), the State, the State Related Entities, the
Released Parties and the Exculpated Parties shall be entitled to rely upon the
advice of counsel and financial advisors with respect to their duties and
responsibilities under, or in connection with, the Chapter 9 Case, the
(a) any of the COP Swap Exculpated Parties to the Syncora Exculpated Parties or
FGIC or (b) the Syncora Exculpated Parties or the FGIC/COP Exculpated Parties
to any of the COP Swap Exculpated Parties. For the avoidance of doubt,
notwithstanding anything in the Plan or this paragraph to the contrary, officers or
employees of the City acting in their individual capacity shall not be exculpated
from liability for claims asserted pursuant to 42 U.S.C. § 1983.
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