Opinion
Case No. 00-34536, Jointly Administered Under Case No. 00-34533.
May 18, 2005
LeCLAIR RYAN, A Professional Corporation, Bruce H. Matson, (Va. Bar No. 22874), Katherine Macaulay Mueller (Va. Bar No. 44302), Richmond, Virginia, Counsel for the Debtor.
AKIN GUMP STRAUSS HAUER FELD LLP, Michael S. Stamer (admitted pro hac vice), Shuba Satyaprasad (admitted pro hac vice) New York, New York, and Stanley J. Samorajczyk (Va. Bar No. 08023), Scott L. Alberino (admitted pro hac vice), Washington, D.C., Counsel to the Official Committee of Unsecured Creditors.
ORDER OF CONFIRMATION
HMY RoomStore, Inc. (the "Debtor"), a debtor and debtor in possession in the above-captioned chapter 11 case, filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") on August 16, 2000 (the "Petition Date").
On March 9, 2005, the Debtor and the Official Committee of Unsecured Creditors (the "Committee" and, together with the Debtor, the "Plan Proponents") filed the Amended and Restated Joint Plan of Reorganization Proposed by HMY RoomStore, Inc. and the Official Committee of Unsecured Creditors (as the same may have been amended, supplemented or modified, the "Plan") with the United States Bankruptcy Court for the Eastern District of Virginia, Richmond Division (the "Bankruptcy Court").
All terms not otherwise defined herein shall have the meaning ascribed to them in the Plan.
The Plan Proponents filed with the Bankruptcy Court the disclosure statement for the Amended and Restated Joint Plan of Reorganization Proposed by HMY RoomStore, Inc. and the Official Committee of Unsecured Creditors on March 9, 2005 (the "Disclosure Statement"), which was approved by the Bankruptcy Court as containing "adequate information" pursuant to section 1125 of the Bankruptcy Code by an order dated March 10, 2005 (the "Solicitation Procedures Order").
The Plan Proponents distributed copies of the notices as approved by the Bankruptcy Court in the Solicitation Procedures Order, the Plan, the Disclosure Statement (together with all exhibits and attachments thereto), and the appropriate Ballot (collectively, the "Solicitation Package") to all holders of Allowed Claims in Class 3 and also distributed copies of notices as approved by the Bankruptcy Court in the Solicitation Procedures Order to those holders of Claims and Interests and other parties in interest as required by the Solicitation Procedures Order as evidenced in the Solicitation Affidavit (as defined below).
A copy of the Publication Notice as defined in and approved by the Solicitation Procedures Order was published in the national edition of USA TODAY on March 16, 2005, as required by the Solicitation Procedures Order as evidenced in the Publication Affidavit (as defined below).
Pursuant to the Solicitation Procedures Order, the Bankruptcy Court fixed the following deadlines (a) March 8, 2005 as the record date for purposes of solicitation of votes on the Plan (the "Record Date"), (b) April 7, 2005 at 4:00 p.m. (Eastern Time) as the time and date by which all Ballots were to be completed, executed, marked and received by the Debtor's balloting and solicitation agent in order to be counted as acceptances or rejections of the Plan, (c) April 7, 2005 at 4:00 p.m. (Eastern Time) as the time and date by which parties in interest were to file and serve objections to confirmation of the Plan in accordance with the terms of the Solicitation Procedures Order (the "Confirmation Objection Deadline"), and (d) April 21, 2005 at 2:00 p.m. (Eastern Time) as the time and date for the hearing to consider confirmation of the Plan as the same may be continued from time to time (the "Confirmation Hearing").
On March 28, 2005, the Plan Proponents filed the Plan Supplement to Amended and Restated Joint Plan of Reorganization by HMY RoomStore, Inc. and the Official Committee of Unsecured Creditors (the "Plan Supplement"). Objections to confirmation of the Plan were filed; however, as provided herein, each such objection has either been resolved, withdrawn or overruled.
The Bankruptcy Court having reviewed the Plan, the Disclosure Statement, the Plan Supplement, and all filed pleadings, exhibits, statements and comments regarding confirmation; due and proper notice of the Confirmation Hearing and the Confirmation Objection Deadline having been given in accordance with the terms of the Solicitation Procedures Order; the Confirmation Hearing having been held before the Bankruptcy Court on April 21, 2005 and April 22, 2005 and the appearance of all interested parties having been noted on the record; and the Bankruptcy Court having considered all objections to confirmation of the Plan; and upon the record and evidence adduced at the Confirmation Hearing and all other proceedings in this Chapter 11 Case and in the Chapter 11 Cases of the Affiliated Debtors (the "Affiliated Debtors' Chapter 11 Cases") and after due deliberation and sufficient cause appearing therefore, the Bankruptcy Court hereby makes and issues the following Findings of Fact, Conclusions of Law and Orders.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Jurisdiction and Venue
On the Petition Date, the Debtor commenced a chapter 11 case by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code (the "Chapter 11 Case"). The Debtor was and is qualified to be a debtor under section 109 of the Bankruptcy Code. Venue is proper before the Bankruptcy Court pursuant to 28 U.S.C. §§ 1408 and 1409. Confirmation of the Plan is a core proceeding under 28 U.S.C. § 157(b)(2)(L). The Bankruptcy Court has subject matter jurisdiction over the Chapter 11 Case and its related proceedings, including this matter pursuant to 28 U.S.C. §§ 157 and 1334. The Bankruptcy Court has exclusive jurisdiction to determine whether the Plan complies with the applicable provisions of the Bankruptcy Code and should be confirmed.
B. Modifications to the Plan
The modifications to the Plan are consistent with all of the provisions of the Bankruptcy Code, including, but not limited to, sections 1122, 1123, 1125, 1127, and 1129 of the Bankruptcy Code. The modifications to the Plan are hereby approved pursuant to section 1127(a) of the Bankruptcy Code.
C. Solicitation Procedures Order
On March 10, 2005, the Bankruptcy Court entered the Solicitation Procedures Order that, among other things, (a) approved the Disclosure Statement as containing adequate information within the meaning of section 1125 of the Bankruptcy Code and Bankruptcy Rule 3017; (b) fixed March 8, 2005 as the Record Date; (c) fixed April 7, 2005 at 4:00 p.m. (Eastern Time) as the time and date by which all Ballots must have been completed, executed, marked and received by the Debtor's balloting and solicitation agent in order to be counted as acceptances or rejections of the Plan, (d) fixed April 7, 2005 at 4:00 p.m. (Eastern Time) as the Confirmation Objection Deadline, and (d) fixed April 21, 2005 at 2:00 p.m. (Eastern Time) as the time and date for the commencement of the Confirmation Hearing.
D. Plan Solicitation and Noticing
On August 16, 2000, the Bankruptcy Court appointed Bankruptcy Services LLC ("BSI") as the balloting and solicitation agent (the "Solicitation Agent") pursuant to the terms of the Order Authorizing and Approving the Retention and Appointment of Bankruptcy Services LLC as Agent for the Clerk of the Bankruptcy Court.
As evidenced by the Affidavit dated March 16, 2005, of Angharad Bowdler of BSI (the "Solicitation Affidavit"), consistent with the Solicitation Procedures Order (i) on March 14, 2005, the Solicitation Agent distributed the Solicitation Package to all holders of Claims in Class 3 as of the Record Date, and (ii) the Plan has been solicited in good faith and in a manner consistent with the Bankruptcy Code.
The Publication Notice as defined in and approved by the Solicitation Procedures Order was published in the national edition of USA TODAY on March 16, 2005, as required by the Solicitation Procedures Order as evidenced by the Verification of Publication filed April 19, 2005 (the "Publication Affidavit").
E. Judicial Notice
The Bankruptcy Court takes judicial notice of the docket of the Chapter 11 Case and the Affiliated Debtors' Chapter 11 Cases maintained by the Clerk of the Bankruptcy Court and all pleadings referenced therein, including all documents filed, all orders entered, and all evidence and arguments made, proffered or adduced at the hearings held before the Bankruptcy Court during the pendency of the Chapter 11 Case and to the Affiliated Debtors' Chapter 11 Cases, including, without limitation, the hearing to approve the Disclosure Statement and the Confirmation Hearing.
F. Plan Confirmation Objections
Prior to the Confirmation Objection Deadline, the following objections to confirmation of the Plan were timely filed by:
• Missouri Department of Revenue ("MDOR");
• The CIT Group/Business Credit, Inc. ("CIT");
• Tax Appraisal District of Bell County, County of Denton, City of Waco, Waco Independent School District ("Bell County");
• Angelina County, Fort Bend County WCID#02, Fort Bend County, Galveston County, Harris County/City of Houston, Matagorda County, Montgomery County, Nacogdoches County Cad, Orange Cad, Orange County, Stafford Municipal SD, Texas City, Texas City ISD ("Texas Taxing Authorities");
• National Labor Relations Board ("NLRB");
• Wachovia Bank, N.A., as Collateral Agent ("Wachovia");
• Office of the Attorney General of Texas on behalf of the Texas Comptroller of Public Accounts ("Texas Comptroller"); and
• Stephen A. Jewett and Francine P. Jewett ("Jewett").
G. Plan Voting
On April 19, 2005, the Debtor filed the Affidavit of Bridget Gallerie Certifying the Ballots Accepting or Rejecting the Debtor's Amended and Restated Joint Plan of Reorganization Proposed by HMY RoomStore, Inc. and the Official Committee of Unsecured Creditors (the "Balloting Affidavit"). The Balloting Affidavit is consistent with Bankruptcy Rule 3018.
Votes to accept and reject the Plan have been solicited and tabulated fairly, in good faith, and in a manner consistent with the Bankruptcy Code, the Bankruptcy Rules, the Solicitation Procedures Order and all other applicable rules, laws and regulations. H. Burden of Proof
The Plan Proponents who have proposed the Plan, have met their burden of proving the elements of Bankruptcy Code section 1129 by a preponderance of the evidence, which is the applicable evidentiary standard in the Bankruptcy Court. The Bankruptcy Court also finds that the Plan Proponents have satisfied the elements of Bankruptcy Code section 1129 by clear and convincing evidence.
I. The Plan Complies with the Applicable Provisions of the Bankruptcy Code
The Plan complies with all applicable provisions of the Bankruptcy Code as required by Bankruptcy Code section 1129(a) of the Bankruptcy Code.
At the time of the Confirmation Hearing, the only remaining objection to Confirmation was that of Wachovia, which objection related only to the Replacement Lien and Super-Priority claim. No party stated an objection to confirmation based on the Debtor's failure or inability to comply with section 1129(a)(2) through (a)(13).
1. The Plan complies with all applicable provisions of the Bankruptcy Code as required by Bankruptcy Code section 1129(a)(1), including, without limitation, sections 1122 and 1123 of the Bankruptcy Code as more specifically described below. (a) The Plan complies with section 1122 by placing only substantially similar claims or equity interests in each class.
The classification of Claims and Interests under the Plan is proper pursuant to the Bankruptcy Code. Pursuant to Bankruptcy Code sections 1122 and 1123(a)(1), Article IV of the Plan provides for the separate classification of Claims and Interests into five (5) Classes, based on differences in the legal nature and/or priority of such Claims and Interests (other than Administrative Claims, Priority Tax Claims and DIP Lender Claims, which are addressed in Article II of the Plan and which are not required to be designated pursuant to Bankruptcy Code section 1123(a)(1)). As required by Bankruptcy Code section 1122(a), each Class of Claims and Interests contains only Claims or Interests that are substantially similar to the other Claims or Interests within such Class.
(b) The Plan Satisfies the Mandatory Requirements of Bankruptcy Code Section 1123(a)
The Plan fully complies with each requirement of Bankruptcy Code section 1123(a)(1)-(7), as follows:
• Section 1123(a)(1). Article III of the Plan designates each Class of Claims and Interests, as required by Bankruptcy Code section 1123(a)(1).
• Section 1123(a)(2). Article III of the Plan specifies the Classes of Claims and Interests that are not Impaired under the Plan, as required by Bankruptcy Code section 1123(a)(2).
• Section 1123(a)(3). Article III of the Plan specifies the Classes of Claims and Interests that are Impaired under the Plan, as required by Bankruptcy Code section 1123(a)(3).
• Section 1123(a)(4). The treatment of each Claim or Interest within a Class is the same as the treatment of each other Claim or Interest in such Class, unless the holder of a Claim or Interest agreed to less favorable treatment on account of its Claim or Interest.
• Section 1123(a)(5). Article VI of the Plan and various other provisions of the Plan, as well as the documents comprising the Plan Supplement, provide for the means for implementation of the Plan. Such Plan provisions include, but are not limited to provisions: (a) governing distributions (see Plan Art. VIII), (b) specifying the treatment of executory contracts and unexpired leases (see Plan Art. VII), (c) specifying procedures for the treatment of certain administrative claims (see Plan Art. IX), (d) describing the effect of the Plan on Claims and Interests (see Plan Art. X); (e) the distribution of new securities (see Plan Art. VI, § 6.9); (f) providing for the filing of amended and restated articles of incorporation and by-laws (see Plan Art. VI, § 6.7); (g) providing for the cancellation of existing securities and agreements (see Plan Art. VI, § 6.3); (h) generally allowing for all corporate action necessary to effectuate the Plan, and (i) providing for the modification and satisfaction of any liens.
• Section 1123(a)(6). Section 6.7(c) of the Plan provides for the adoption, on the Effective Date, of amended and restated articles of incorporation and bylaws to ensure compliance with Bankruptcy Code section 1123(a)(6). Moreover, the proposed articles of incorporation for Reorganized RoomStore, as filed with the Plan Supplement, prohibit the issuance of non-voting securities.
• Section 1123(a)(7). The Plan complies with Bankruptcy Code section 1123(a)(7) by properly and adequately disclosing or otherwise identifying the procedures for determining the identity and affiliations of all individuals or entities designated by the Committee to serve as officers and directors of Reorganized RoomStore, as well as the compensation for those individuals who may be deemed to be "insiders." Further, the Plan Supplement discloses the identity and affiliations of all individuals or entities proposed to serve on or after the Effective Date as executive officers and directors of Reorganized RoomStore. These proposed provisions have been disclosed adequately to all creditors and parties in interest.(c) The Discretionary Provisions of the Plan Comply with Section 1123(b) of the Bankruptcy Code
The Plan contains various provisions that may be construed as discretionary. Such discretionary provisions are appropriate and are not inconsistent in any manner with applicable provisions of the Bankruptcy Code.
2. The Plan Proponents Have Complied with the Applicable Provisions of the Bankruptcy Code as Required by Bankruptcy Code Section 1129(a)(2)
The Plan Proponents, having proposed the Plan, have complied with all applicable provisions of the Bankruptcy Code as required by Bankruptcy Code section 1129(a)(2), including, without limitation, sections 1122, 1123, 1124, 1125, 1126, 1127 and 1128 of the Bankruptcy Code, and Bankruptcy Rules 3017, 3018 and 3019.
Votes for acceptances and rejection and/or any other election on the Plan as provided for in the Ballots were solicited in good faith and complied with the Solicitation Procedures Order, the Bankruptcy Rules, the Bankruptcy Code, the Local Bankruptcy Rules, and all other applicable rules, laws and regulations.
The Plan Proponents and their respective advisors, attorneys and agents have solicited votes on the Plan and have participated in the activities described in Bankruptcy Code section 1125 in good faith within the meaning of Bankruptcy Code section 1125(e) and in compliance with the applicable provisions of the Solicitation Procedures Order, the Disclosure Statement, the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules and all other applicable rules, laws and regulations and are entitled to the protections afforded by Bankruptcy Code section 1125(e) and the exculpation provisions set forth in Article X of the Plan.
(a) The Plan Proponents Have Complied with Bankruptcy Code Section 1125
The Debtor is a proper Debtor under Bankruptcy Code section 109 and a proper proponent, with the Committee, under Bankruptcy Code section 1121(a).
On March 10, 2005, after notice and a hearing, the Bankruptcy Court approved the Disclosure Statement pursuant to Bankruptcy Code section 1125 as containing "adequate information" of a kind and in sufficient detail to enable a hypothetical reasonable investor typical of the Debtor's creditor to make an informed judgment whether to accept or reject the Plan.
The Disclosure Statement (which includes as an exhibit a copy of the Plan), together with the additional documents comprising the Solicitation Package, were transmitted to each holder of a Claim in Class 3 entitled to vote to accept or reject the Plan as well as to other parties in interest in this case, in compliance with Bankruptcy Code section 1125 and the Solicitation Procedures Order (the "Solicitation"). In addition, holders of Claims and Interests in Classes 1, 2, 4 and 5 that were not entitled to vote to accept or reject the Plan were provided with certain non-voting materials and notices approved by the Bankruptcy Court in compliance with the Solicitation Procedures Order.
The Plan Proponents and their respective present and former members, officers, directors, employees, advisors, attorneys and agents, did not solicit the acceptance or rejection of the Plan by any holder of a Claim or Interest prior to the approval and transmission of the Disclosure Statement. Votes to accept or reject the Plan were only solicited by the Plan Proponents and/or their agent after disclosure to holders of Claims or Interests of adequate information as defined in Bankruptcy Code section 1125(a).
(b) The Plan Proponents Have Complied with Bankruptcy Code Section 1126
As evidenced by the Balloting Affidavit, the Plan has been accepted by creditors holding in excess of two-thirds in amount and one-half in number of the Allowed Claims voted in the Impaired Class (Class 3) that were entitled to vote under the Plan.
Holders of Claims and Interests in Classes that are not Impaired under the Plan (Classes 1 and 2) are deemed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f).
HMC, as the holder of the Affiliated Debtor Unsecured Claim in Class 4, is Impaired and entitled to vote on the Plan, and its vote is deemed to be an acceptance of the Plan.
Holders of Interests in Class 5 will not receive any Distribution under the Plan and thus, are deemed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g). Nevertheless, as set forth below, pursuant to section 1129(b) of the Bankruptcy Code, the Plan may be confirmed over the deemed rejection of Class 5 because the Plan does not discriminate unfairly and is fair and equitable with respect to such Class.See 11 U.S.C. § 1129(b).
The Plan Proponents and their respective present and former members, officers, directors, employees, advisors, attorneys, and agents have participated in good faith and in compliance with the applicable provisions of the Bankruptcy Code with regard to the offering, issuance and Distribution of the New RoomStore Common Stock under the Plan and, therefore, are not, and on account of such Distributions will not be, liable at any time for the violation of any applicable law, rule, or regulation regarding the Solicitation of acceptances or rejections of the Plan or such Distributions made pursuant to the Plan.
Based upon the foregoing, the requirements of section 1129(a)(2) of the Bankruptcy Code have been satisfied.
3. The Plan Has Been Proposed in Good Faith and Not By Any Means Forbidden by Law (Section 1129(a)(3) of the Bankruptcy Code)
The Plan Proponents have proposed the Plan in good faith and not by any means forbidden by law. The Plan was proposed with honesty and good intentions and with a basis for maximizing value to the Debtor's creditors. In determining that the Plan has been proposed in good faith, this Bankruptcy Court has examined the totality of the circumstances surrounding the filing of the Chapter 11 Case, the Plan itself, and the process leading to its formulation. See Bankruptcy Rule 3020(b). The Plan Proponents' good faith is further evidenced by the record of the Chapter 11 Case and the Affiliated Debtors' Chapter 11 Cases, the Disclosure Statement and the hearing thereon, and the record of the Confirmation Hearing and other proceedings held in the Chapter 11 Case and the Affiliated Debtors' Chapter 11 Cases. The Plan was proposed with the legitimate and honest purpose of maximizing the value of the Debtor's estate by implementing the Intercompany Settlement and by preserving the enterprise value of Reorganized RoomStore for the benefit of all creditors. Furthermore, the Plan has not been proposed by any means prohibited by law.
4. The Plan Provides for Bankruptcy Court Approval of Certain Administrative Payments (Section 1129(a)(4) of the Bankruptcy Code)
Any payment made or to be made by the Debtor for services or for costs and expenses in or in connection with this Chapter 11 Case, or in connection with the Plan and incident to this Chapter 11 Case, has been approved by, or is subject to the approval of, the Bankruptcy Court as reasonable, thereby satisfying Bankruptcy Code section 1129(a)(4).
5. The Plan Proponents have Properly Disclosed the Identity of Proposed Officers and Directors (Section 1129(a)(5) of the Bankruptcy Code)
Pursuant to Bankruptcy Code section 1129(a)(5), the Plan Proponents have disclosed the identity of the proposed directors and officers of Reorganized RoomStore following confirmation of the Plan in the Plan Supplement. The appointment to such offices is consistent with the interests of the Debtor's creditors and with public policy as required by Bankruptcy Code section 1129(a)(5).
6. The Plan Does Not Contain Any Rate Changes Subject to the Jurisdiction of any Governmental Regulatory Commission and Will Not Require Governmental Regulatory Approval (Section 1129(a)(6) of the Bankruptcy Code)
The Plan does not contain any rate changes subject to the jurisdiction of any governmental regulatory commission and will not require governmental regulatory approval. Accordingly, Bankruptcy Code section 1126(a)(6) is not applicable in the Chapter 11 Case or with respect to the Plan.
7. The Plan is in the Best Interests of All Creditors of and Equity Interest Holders in the Debtor (Section 1129(a)(7) of the Bankruptcy Code)
The Plan satisfies the "best interests of creditors test" set forth in Bankruptcy Code section 1129(a)(7). Specifically, the liquidation analysis annexed to the Disclosure Statement as Exhibit B, and the other evidence related thereto that was otherwise proffered or adduced at or prior to, the Confirmation Hearing, (a) are persuasive and credible as of the dates such evidence was prepared, presented or proffered, (b) have not been controverted by other persuasive evidence and has not been challenged, (c) are based upon reasonable and sound assumptions, and (d) 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 Debtor was liquidated under chapter 7 of the Bankruptcy Code. 8. The Plan Has Been Accepted by Impaired Classes (Section 1129(a)(8) of the Bankruptcy Code)
As provided in Article III and IV of the Plan, Classes 1 and 2 are not Impaired and are conclusively presumed to have accepted the Plan pursuant to Bankruptcy Code section 1126(f).
As described in the Balloting Affidavit, the Impaired Class that was entitled to vote under the Plan, Class 3, has voted to accept the Plan. The vote of Class 4 is deemed to be a vote in favor of the Plan.
As provided in Article IV, Class 5 (the "Deemed Rejected Class") will not receive any Distributions or retain any property under the Plan and is conclusively presumed to have rejected the Plan pursuant to Bankruptcy Code section 1126(g).
9. The Plan Provides for the Statutorily Mandated Treatment of Administrative and Priority Tax Claims (Section 1129(a)(9) of the Bankruptcy Code)
As provided in Article II of the Plan, the treatment of Administrative Claims, Priority Tax Claims and DIP Lender Claims satisfies the requirements of Bankruptcy Code section 1129(a)(9).
10. At Least One Impaired Class of Claims Has Accepted the Plan, Excluding the Acceptances of Insiders (Section 1129(a)(10) of the Bankruptcy Code)
A. Class 3 was an Impaired Class under the Plan, which class voted to accept the Plan (determined without including any acceptance of the plan by an insider). Accordingly, at least one Class of Claims that is Impaired under the Plan (Class 3) has voted to accept the Plan, thus satisfying the requirements of Bankruptcy Code section 1129(a)(10).
11. The Plan Is Feasible (Section 1129(a)(11) of the Bankruptcy Code)
The evidence proffered or adduced at the Confirmation Hearing, among other things, (a) is persuasive and credible, (b) has not been controverted by other persuasive evidence, (c) established that the Plan is workable and has a reasonable likelihood of success, and (d) established that confirmation of the Plan is not likely to be followed by the need for further financial reorganization or a liquidation of the Debtor that is not proposed in the Plan, thus satisfying the requirements of Bankruptcy Code section 1129(a)(11).
12. The Plan Provides for the Payment of All Fees Under 28 U.S.C. § 1930 (Section 1129(a)(12) of the Bankruptcy Code)
Article III of the Plan provides for the payment of all fees payable under 28 U.S.C. § 1930(a)(6). The Debtor has adequate means to pay all such fees. Accordingly, the Plan satisfies the requirements of Bankruptcy Code section 1129(a)(12).
13. The Plan Adequately and Properly Treats Retiree Benefits (Section 1129(a)(13) of the Bankruptcy Code)
Bankruptcy Code section 1129(a)(13) requires a plan to provide for retiree benefits at levels established pursuant to Bankruptcy Code section 1114. The Debtor has no such obligations and, therefore, the requirements of Bankruptcy Code section 1129(a)(13) are met.
14. Confirmation of Plan Over Nonacceptance of Impaired Class (Section 1129(b) of the Bankruptcy Code)
Pursuant to Bankruptcy Code section 1129(b)(1), because Class 3 is Impaired and has voted to accept the Plan and Class 4 is deemed to have accepted the Plan, the Plan may be confirmed notwithstanding the Deemed Rejected Class. Accordingly, all of the requirements of Bankruptcy Code section 1129(a), other than section 1129(a)(8), have been met. (a) The Plan Is Fair and Equitable With Respect to the Impaired Class That Is Deemed to Reject the Plan
With respect to the Deemed Rejected Class, no holders of Interests subordinate to the holder of Interests in the Deemed Rejected Class will receive or retain any property under the Plan. Accordingly, the requirements of Bankruptcy Code sections 1129(b)(2)(B)(ii) and 1129(b)(2)(C)(ii) are satisfied with respect to the Deemed Rejected Class.
The Plan does not discriminate unfairly and is "fair and equitable" (as defined in Bankruptcy Code section 1129(b)) with respect to the Deemed Rejected Class, which is the only Impaired Class that has not voted to accept or been deemed as having voted to accept the Plan as required by Bankruptcy Code sections 1129(b)(1) and (2). Thus, the Plan satisfies the requirements of Bankruptcy Code section 1129(b) and may be confirmed notwithstanding the Debtor's failure to satisfy Bankruptcy Code section 1129(a)(8) with respect to Class 5. Upon confirmation of the Plan and the occurrence of the Effective Date, the Plan shall be binding upon the member of the Deemed Rejected Class.
(b) The Plan Does Not Discriminate Unfairly With Respect to the Impaired Class That Has Not Voted to Accept the Plan
The Plan does not discriminate unfairly with respect to the Impaired Class that has not voted to accept the Plan.
15. The Plan Is the Only Plan Pending Before this Court (Section 1129(c) of the Bankruptcy Code)
The Plan is the only plan of the Debtor pending before this Bankruptcy Court or any other court, and no other party in interest has filed a competing plan.
16. Principal Purpose of the Plan Is Not Avoidance of Taxes (Section 1129(d) of the Bankruptcy Code)
No party in interest that is a governmental unit has requested that the Bankruptcy Court not confirm the Plan on the grounds that the principal purpose of the Plan is the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act of 1933. Based upon the evidence proffered, adduced or presented by the Plan Proponents at the Confirmation Hearing, the principal purpose of the Plan is not the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act of 1933. Accordingly, the Plan satisfies the requirement of Bankruptcy Code section 1129(d).
J. Preservation of Causes of Action
To preserve and/or enhance the value of the Debtor's Estate, it is in the best interests of the creditors and Interest holders of the Debtor's Estate that all Causes of Action not expressly waived, relinquished, released, compromised or settled in the Plan or in this Confirmation Order or in a stipulation resolving an objection to the Plan be retained by the Debtor (before the Effective Date) and by Reorganized RoomStore (after the Effective Date) pursuant to the Plan.
K. Likelihood of Satisfaction of Conditions Precedent to Effective Date
Each of the conditions precedent to the Effective Date of the Plan, as set forth in Article XI of the Plan, has been satisfied or waived, in accordance with the provisions of the Plan, or is reasonably likely to be satisfied.
L. Executory Contracts
Article VII of the Plan, which governs the assumption of executory contracts and unexpired leases, satisfies the requirements of Bankruptcy Code sections 365(a), (b) and (c). The assumption of those executory contracts and unexpired leases that are to be and, unless otherwise so designated prior thereto, will be assumed as of the Effective Date in accordance with the Plan, and by operation of this Confirmation Order are hereby approved, and such executory contracts and unexpired leases shall remain in full force and effect for the benefit of Reorganized RoomStore, in accordance with their respective terms, notwithstanding any provision in such contracts or leases or in any applicable law, including those of the type contemplated in Bankruptcy Code section 365(b)(2). Unless otherwise specified in this Confirmation Order, all executory contracts and unexpired leases listed on Exhibit D of the Plan Supplement, subject to any qualifications set forth therein, shall be assumed as of the Effective Date. Such assumptions are in the best interests of the Debtor, its estate, and all parties in interest in this Chapter 11 Case. The Bankruptcy Court finds that there has been adequate assurance of future performance under such agreements and adequately provides for the timely payment of cure amounts, if any, in Cash in accordance with Bankruptcy Code section 365(b)(1).
Article VII of the Plan which governs, among other things, the rejection of executory contracts and unexpired leases, satisfies the requirements of Bankruptcy Code section 365(a) and the executory contracts and unexpired leases of the Debtor to be rejected as of the Effective Date in accordance with the Plan are burdensome and, as such, the rejection thereof is in the best interests of the Debtor, its estate, and all parties in interest in this Chapter 11 Case.
M. Releases and Indemnifications
The record of the Confirmation Hearing and the Chapter 11 Case is sufficient to support the releases, exculpations and injunctions provided for in Article X of the Plan. Nothing contained in the Plan or in this Confirmation Order shall release or discharge any Released Party from any cause of action held by a governmental entity existing as of the Effective Date, based on (i) the Internal Revenue Code or other domestic state, city or municipal tax code, (ii) the environmental laws of the United States or any domestic state, city or municipality, (iii) any criminal laws of the United States or any domestic state, city of municipality, (iv) the Exchange Act, the Securities Act, or other securities laws and regulations of the United States of any domestic state, city or municipality, or (v) sections 1104-1109 and 1342(d) of the Employee Retirement Income Security Act of 1974, as amended; provided, however, that nothing contained herein or in Article X of the Plan shall preclude (x) such Persons from exercising their rights pursuant to and consistent with the terms of the Plan, (y) the investigation, enforcement or prosecution of any Cause of Action held by a governmental entity existing as of the Effective Date, based on the Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, or other securities laws and regulations of the United States, or (z) the determination, assessment or perfection of any Claim arising under the Internal Revenue Code or other domestic state, city or municipal tax code.
N. The Intercompany Settlement
The Plan's provision for the Intercompany Settlement is authorized by section 1123(b)(3) of the Bankruptcy Code and is appropriate. Due notice of the Intercompany Settlement and the hearing held thereon in conjunction with the Confirmation Hearing has been given and all parties in interest had an opportunity to appear and be heard with respect thereto.
The Court notes that at the commencement of the Confirmation Hearing, counsel for Wachovia confirmed that as a result of recently obtained information, Wachovia was withdrawing its objection to the Intercompany Settlement as a basis for objection to confirmation.
The Bankruptcy Court is required to make an independent determination of the fairness to the Debtor and its Estate of the Intercompany Settlement embodied in the Plan. See, e.g., Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424 (1968); Shaia v. Three Rivers Wood, Inc. (In re Three Rivers Woods, Inc.), Case No. 98-38685, 2001 Bankr. LEXIS 737, at *12 (Bankr. E.D. Va. Mar. 20, 2001).
In approving the Intercompany Settlement, the Bankruptcy Court has considered, among other things,
(1) the probability of success in litigation;
(2) the difficulties, if any, to be encountered in the matter of collection;
(3) the complexity, time, and expense of the litigation; and
(4) the paramount interest of the creditors and a proper deference to their reasonable views.
In re Austin, 186 B.R. 397, 400 (Bankr. E.D. Va. 1995); see also TMT Trailer, 390 U.S. at 424; In re Three Rivers Woods, Inc., 2001 WL 720620 at *6; In re Frye, 216 B.R. 166, 174 (Bankr. E.D. Va. 1997).
To approve a settlement, a bankruptcy court is not required to determine the questions of law and fact raised by the issues to be settled but, rather, to determine whether the settlement falls "below the lowest point in the range of reasonableness." In re Three Rivers Woods, Inc., at *12-13. (citing Cosoff v. Rodman (In re W.T. Grant Co.), 699 F.2d 599, 608 (2d Cir.); see Official Unsecured Creditors' Committee of Pennsylvania Truck Lines, Inc. v. Pennsylvania Truck Lines, Inc. (In re Pennsylvania Truck Lines, Inc., 150 B.R. 595, 601 (E.D. Pa. 1992) (finding that bankruptcy court correctly applied "lowest point in the range of reasonableness" test in approving intercompany settlement); In re Drexel Burnham Lambert Group, Inc., 134 B.R. 493, 497 (Bankr. S.D.N.Y. 1991) (determining that settlement among insiders must be above the lowest range of reasonableness). To be approved, a compromise or settlement should be "fair and equitable" and "representative of the best interests of the estate as a whole." See Three Rivers Woods, Inc. at *18.
Based upon the record of the Confirmation Hearing and applicable law, the Intercompany Settlement represents a fair and reasonable compromise and settlement of complex legal and factual issues among the Debtor and the Affiliated Debtors and, accordingly, should be approved. The Intercompany Settlement falls well above the lowest point in the range of reasonable settlements and provides for the resolution of several litigations that likely would be complex, protracted and come at great expense to the estates. The avoidance of long and complicated litigation is one of the principal rationales for entering into settlements. See, e.g., In re Baldwin United Corp., 43 B.R. 888 (Bankr. S.D. Ohio 1984). No evidence in the record of the Chapter 11 Case or the Affiliated Debtors' Chapter 11 Cases suggests that litigation of the issues resolved pursuant to the Intercompany Settlement would achieve a fairer or more equitable result than the terms embodied therein. Furthermore, the evidence indicates that the Intercompany Settlement was negotiated in good faith and at arm's-length by qualified representatives of the Debtor and Affiliated Debtors. Balancing the costs, risks and delay of litigation, approval of the Intercompany Settlement is in the best interests of the Debtor, its Estate and its creditors and Interest holders. O. Modification and Satisfaction of Replacement Liens and Super-Priority Claim
The Affiliated Debtors also filed a motion requesting approval of the Intercompany Settlement in their bankruptcy cases. The Court will enter a separate order in those cases also approving the Intercompay Settlement based upon the findings and conclusions herein.
Based upon the record of the confirmation hearing, the Plan adequately provides for the modification or satisfaction of any replacement lien as required by section 1123(a)(5)(E) of the Bankruptcy Code, and any super-priority claim as required by section 1129(a)(9) of the Bankruptcy Code.
Pursuant to the (i) Final Order Pursuant to Sections 361 and 363 of the Bankruptcy Code and Rule 4001 of the Federal Rules of Bankruptcy Procedure Providing the Pre-Petition Secured Lenders Adequate Protection, dated September 27, 2000, and (ii) Final Order Pursuant to Sections 361 and 363 of the Bankruptcy Code and Rule 4001 of the Federal Rules of Bankruptcy Procedure Providing the Pre-Petition Secured Lenders Supplemental Adequate Protection, dated July 31, 2001 (collectively, the "Adequate Protection Orders"), the Debtor granted Wachovia, in its capacity as collateral and administrative agent for the Pre-Petition Secured Lenders (as defined in the Adequate Protection Orders), post-petition replacement liens (the "Replacement Liens") in certain assets of the Debtor as more particularly set forth in the Adequate Protection Orders. Pursuant to the Adequate Protection Orders, Wachovia also was granted a super-priority claim pursuant to section 507(b) of the Bankruptcy Code (the "Super-Priority Claim") with respect to the Debtor's estate as more particularly set forth in the Adequate Protection Orders. Both the Replacement Liens and Super-Priority Claim were granted to Wachovia as adequate protection solely in the event of any diminution in the value of the Pre-Petition Collateral (as defined in the Adequate Protection Orders).
Pursuant to the Adequate Protection Orders, the Affiliated Debtors have remitted to Wachovia sums, including proceeds from the sale of certain pre-petition collateral, ("Pre-Petition Collateral Proceeds") totaling not less than $122,234,000. In addition, approximately $14,785,000 in proceeds from the sale of the Berrios Note (as defined in the Adequate Protection Orders) is being held in escrow pending entry of a final order with respect to the extent of the Pre-Petition Secured Lenders allowed secured claim against the Affiliated Debtors (the "Berrios Proceeds," referred to collectively with the Pre-Petition Collateral Proceeds, as the "Adequate Protection Payments").
On the Petition Date, the aggregate principal amount of the Pre-Petition Secured Obligations (as defined in the Adequate Protection Orders") was limited to $128,500,000 pursuant to the terms and operation of that certain security agreement, dated May 25, 2000, in favor of Wachovia (the "Pre-Petition Security Agreement"), and the Intercreditor and Sharing Agreement, dated May 25, 2000, by and between each of the Pre-Petition Secured Lenders, HMC, and MacSaver Financial Services, Inc. (the "Intercreditor Agreement"). Wachovia, on behalf of the Pre-Petition Secured Lenders, has filed a proof of claim in the Affiliated Debtors' Chapter 11 Cases asserting that as of the Petition Date, the total principal amount of the Pre-Petition Secured Lenders' claim (exclusive of post-petition interest, fees and costs) equaled approximately $161,500,000 (the "Wachovia Proof of Claim").
Pursuant to section 506(a) of the Bankruptcy Code, the maximum allowed secured claim of the Pre-Petition Secured Lenders cannot exceed $128,500,000 because as of the Petition Date, the amount of the secured claim was contractually limited to $128,500,000.See In re Ladycliff College, 56 B.R. 765 (S.D.N.Y. 1985); 4Collier on Bankruptcy, ¶ 506.03[5][b] (15 the Ed. Rev.). As the total principal amount of the Pre-Petition Secured Lenders' claim as of the Petition Date is greater than the contractually limited secured portion of such claim, the Pre-Petition Secured Lenders are undersecured creditors for purposes of section 506(a) and (b) of the Bankruptcy Code. Id. Consequently, any claim asserted by the Pre-Petition Secured Lenders for interest, charges or other costs accrued or incurred subsequent to the Petition Date are properly excluded from the allowed secured claim of the Pre-Petition Secured Lenders.
As the value of the Adequate Protection Payments exceeds the maximum amount of the Pre-Petition Secured Lenders' allowed secured claim under section 506(a) of the Bankruptcy Code, termination of the Replacement Liens is appropriate and without prejudice to Wachovia. Similarly, satisfaction of the Super-Priority Claim, if any, has been provided for through the Adequate Protection Payments. Accordingly, the Court finds that Wachovia's objection to confirmation of the Plan must and will be overruled as it relates to their claims to the Replacement Lien and/or Super-Priority Claim.
ORDER
BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT: A. Order
1. This Confirmation Order shall confirm the Plan.
B. Objections
2. To the extent that any Objections have not been withdrawn, waived or settled prior to entry of this Confirmation Order or otherwise resolved as stated on the record at the Confirmation Hearing, they are hereby overruled.
C. Findings of Fact and Conclusions of Law
3. The findings of the Bankruptcy Court as set forth above and the conclusions of law stated herein shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding by Bankruptcy Rule 9014. To the extent any finding of fact shall be determined to be a conclusion of law, it shall be so deemed, and vice versa.
D. Confirmation of Plan
4. The Plan and Plan Supplement (as such may be amended by this Confirmation Order) and each of their provisions are confirmed in each and every respect pursuant to section 1129 of the Bankruptcy Code. The terms of the Plan, the Plan Supplement, and exhibits thereto are incorporated by reference into, and are an integral part of, this Confirmation Order. The terms of the Plan, the Plan Supplement, and all exhibits thereto, and all other relevant and necessary documents, shall be effective and binding as of the Effective Date of the Plan. Notwithstanding the foregoing, if there is any direct conflict between the terms of the Plan or the Plan Supplement and the terms of this Confirmation Order, the terms of this Confirmation Order shall control. Any reference to the Plan contained herein shall be deemed to include the Plan Supplement and any and all modifications thereto. The provisions of this Confirmation Order are integrated with each other and are mutually dependent and not severable.
E. Plan Modifications
5. All modifications or amendments to the Plan since the Solicitation are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or resolicitation under Rule 3019.
F. Compliance with Sections 1122 and 1123 of the Bankruptcy Code
6. The Plan complies with the requirements of sections 1122 and 1123 of the Bankruptcy Code.
G. Plan Classification Controlling
7. The classification of Claims and Interests for purposes of the Distributions provided for under the Plan shall be governed solely by the terms of the Plan. The classifications and amounts of Claims, if any, set forth in the Ballots tendered or returned by the Debtor's creditors in connection with voting on the Plan (a) were set forth on the Ballots solely for purposes of voting to accept or reject the Plan, (b) do not necessarily represent, and in no event shall be deemed to modify or otherwise affect, the actual classification of such Claims under the Plan for Distribution purposes, (c) may not be relied upon by any holder of a Claim as representing actual classification of such Claims under the Plan for Distribution purposes, and (d) shall not be binding on the Debtor, Reorganized RoomStore or the Estate. H. Effects of Confirmation (a) Executory Contracts and Unexpired Leases
8. The provisions governing the assumption and rejection of Executory Contracts or Unexpired Leases set forth in Article VII of the Plan are hereby approved in their entirety. Each executory contract and unexpired lease to which the Debtor is a party shall be deemed automatically rejected as of the Effective Date, unless such executory contract or unexpired lease (a) shall have been assumed previously by the Debtor, (b) is the subject of a motion to assume filed, or a notice of assumption served pursuant to an order of the Bankruptcy Court, on or before the Confirmation Date, or (c) is listed on the schedule of to-be-assumed contracts and leases included in the Plan Supplement. The Confirmation Order shall constitute an order of the Bankruptcy Court approving such rejections and assumptions, pursuant to section 365 of the Bankruptcy Code.
(b) Existing Injunction and Stays to Remain in Effect Until Effective Date
9. All injunctions or stays, whether by operation of law or by order of the Court, provided for in the Bankruptcy Cases pursuant to sections 105 or 362 of the Bankruptcy Code or otherwise that are in effect on the Confirmation Date shall remain in full force and effect until the entry of a final decree in the Chapter 11 Case. Nothing herein shall bar the taking of such other actions as are necessary to effectuate the transactions specifically contemplated by the Plan or this Confirmation Order.
I. Matters Relating to Implementation of the Plan. (a) Implementation of the Plan
10. In accordance with section 1142 of the Bankruptcy Code, the implementation and consummation of the Plan in accordance with its terms shall be, and hereby is, authorized and approved and the Debtor, Reorganized RoomStore, and any other person designated pursuant to the Plan shall be, and they hereby are, authorized, empowered, directed, and ordered to execute, deliver, file, and record contracts, instruments, releases, indentures, and other agreements or documents, whether or not such document, agreement, indenture, release, instrument, or contract is specifically referred to in the Plan or the Disclosure Statement, and to take any action necessary or appropriate to implement, effectuate, and consummate the Plan in accordance with its terms. The Debtor, Reorganized RoomStore, and the Indenture Trustee are hereby authorized and directed to make all payments and distributions required under the Plan. Without limiting the generality of the foregoing, the Debtor is hereby specifically authorized and empowered pursuant to section 1142(b) of the Bankruptcy Code to execute, deliver, and consummate the New Credit Facility on substantially similar terms to those disclosed in the Plan Supplement, to issue the New RoomStore Common Stock, and to deliver a written commitment to the Affiliated Debtors to provide funding of up to $2 million as provided for in Article 6.2 of the Plan.
(b) Binding Effect
11. Pursuant to section 1141 of the Bankruptcy Code, this Confirmation Order and the Plan, including all agreements, instruments and other documents filed in connection with the Plan and executed by the Debtor or Reorganized RoomStore in connection with the Plan, shall be legally binding upon and inure to the benefit of the Debtor, Reorganized RoomStore, the Estate, the Committee, the holders of Claims, the holders of Interests, the DIP Lenders, all other parties in interest in the Bankruptcy Cases, and their respective successors and assigns. All agreements, instruments and other documents filed in connection with the Plan or included in the Plan Supplement (as they may be amended or modified pursuant to the terms of the Plan) shall have full force and effect, and shall bind all parties thereto. Any federal, state, commonwealth, local, or other governmental agency or department is hereby directed and ordered to accept any and all documents and instruments necessary, useful, or appropriate to effectuate, implement, or consummate the transactions contemplated by the Plan or herein.
(c) Corporate Action, Vesting of Assets
12. Each of the matters provided for under the Plan involving corporate action to be taken by or required of the Debtor shall, as of the Effective Date, be deemed to have occurred and be effective as provided herein, and shall be authorized and approved in all respects without any requirement of further action by the stockholders, creditors, or members of the board of directors of the Debtor.
13. On the Effective Date, the Miscellaneous RoomStore Assets shall be deemed transferred to Reorganized RoomStore and all of the Debtor's assets shall revest in Reorganized RoomStore, in each case, free and clear of all Claims, liens, charges, encumbrances, rights and interests of creditors and equity security holders. As of the Effective Date, Reorganized RoomStore may operate its businesses and use, acquire and dispose of property and settle and compromise Claims without supervision of the Bankruptcy Court, free and clear of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly imposed by the Plan and the Confirmation Order.
(d) Exemption from Transfer Taxes
14. Pursuant to 1146(c) of the Bankruptcy Code, (a) the issuance, transfer or exchange of notes or equity securities under the Plan; (b) the creation of any mortgage, deed of trust, lien, pledge or other security interest; (c) the making or assignment of any lease or sublease; or (d) the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including without limitation, any merger agreements, agreements of consolidation, restructuring, disposition, liquidation or dissolution; deeds; bills of sale and transfers of tangible property, will not be subject to any stamp tax, recording tax, personal property tax, real estate transfer tax, sales or use tax or other similar tax. Any transfers from the Debtor or Affiliated Debtors to Reorganized RoomStore or otherwise pursuant to his Plan shall not be subject to any such taxes, and the Confirmation Order shall direct the appropriate state or local governmental officials or agents to forego the collection of any such tax or governmental assessment and to accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment. Unless the Bankruptcy Court orders otherwise, any and all of the foregoing transactions whether taken on or after the Effective Date shall be deemed to have been in furtherance of, or in connection with, the Plan.
(e) Issuance of New Securities (i) Exemption from Securities Laws
15. On the Effective Date, Reorganized RoomStore shall issue all of the New RoomStore Common Stock to the Unsecured Claims Reserve. The issuance of the New RoomStore Common Stock in accordance with the provisions of the Plan and the Distribution of the New RoomStore Common Stock to the holders of Allowed Unsecured Claims and the Allowed Affiliated Debtor Unsecured Claim, in discharge of and in exchange for such Claims, shall be exempt from the registration requirements of the Securities Act and the registration and qualification requirements of all applicable state securities laws pursuant to the exemption afforded by section 1145(a) of the Bankruptcy Code.
(f) Continued Corporate Existence
16. The Debtor shall continue to exist after the Effective Date as Reorganized RoomStore, a separate corporate entity with all the powers of a corporation under the applicable law of the jurisdiction in which it is incorporated and pursuant to the articles of incorporation and bylaws in effect prior to the Effective Date, except to the extent such articles of incorporation and bylaws are amended and restated pursuant to the Plan, without prejudice to any right to terminate such existence (whether by merger or otherwise) under applicable law after the Effective Date.
(g) Cancellation of Existing Securities and Agreements
17. On the Effective Date, except as otherwise specifically provided for herein, any share certificate, note, bond, indenture, or other instrument or document evidencing or creating any indebtedness or obligation of the Debtor or ownership interest in the Debtor, and all options, warrants and rights (whether fixed or contingent, matured or unmatured, disputed or undisputed, contractual, legal, equitable or otherwise) to acquire any of the foregoing that shall be authorized, issued and outstanding immediately prior to the Effective Date shall be cancelled without any further action on the part of the Bankruptcy Court or any other Person.
(h) Issuance of New Securities
18. On or following the Effective Date, Reorganized RoomStore is hereby authorized, empowered, and directed, and shall distribute or issue all securities, notes, instruments, certificates, and other documents required to be issued pursuant to the Plan, including, without limitation, the New RoomStore Common Stock, which shall be distributed as provided in the Plan.
19. Each Distribution and issuance referred to in the prior paragraph shall be governed by the terms and conditions set forth in the Plan applicable to such Distribution or issuance and by the terms and conditions of the instruments evidencing or relating to such Distribution or issuance, which terms and conditions shall bind each Person receiving such Distribution or issuance.
(i) Cure of Defaults in Connection with Assumption
20. The provisions (if any) of each executory contract and unexpired lease to be assumed under the Plan that are or may be in default shall be satisfied solely by Cure. Any Person claiming that a monetary Cure amount is due in connection with the assumption of any executory contract or unexpired lease as contemplated by section 365(b) of the Bankruptcy Code must file a monetary Cure claim with the Bankruptcy Court asserting all alleged amounts accrued through the Effective Date, if any (the "Cure Claim"), no later than thirty (30) days after the Effective Date (the "Cure Claim Submission Deadline"). Any party failing to submit a Cure Claim by the Cure Claim Submission Deadline shall be forever barred from asserting, collecting, or seeking to collect any amounts relating thereto against the Debtor, Reorganized RoomStore or the Affiliated Debtors and their respective successors and assigns. Reorganized RoomStore shall have ninety (90) days from the Cure Claim Submission Deadline (the "Cure Claim Objection Deadline") to file objections to Cure Claims. Any Disputed Cure Claims, if not resolved consensually by the parties, shall be resolved by the Bankruptcy Court. Disputed Cure Claims shall be set for status at subsequent hearings following the Cure Claim Objection Deadline with separate evidentiary hearings to be set by the Bankruptcy Court as needed. If Reorganized RoomStore does not dispute a Cure Claim, Reorganized RoomStore shall pay the Cure Claim, if any, to the claimant within twenty (20) days following the Cure Claim Objection Deadline. In the event of a dispute regarding (a) the nature or the amount of any Cure, (b) the ability of Reorganized RoomStore or any assignee to provide "adequate assurance of future performance" (within the meaning of section 365(b) of the Bankruptcy Code) under the contract or lease to be assumed, or (c) any other matter pertaining to assumption, any such Cure shall be paid by Reorganized RoomStore as soon as reasonably practicable after such agreement or Final Order (but in no event any later than twenty (20) days thereafter). The Debtor shall be permitted to modify the list of executory contracts and unexpired leases to be assumed by the Debtor.
(j) Bar Date for Rejection Damages Claims
21. If the rejection by the Debtor (pursuant to the Plan or otherwise) of an executory contract or unexpired lease results in a Claim, such Claim shall be forever barred and shall not be enforceable against the Debtor, Reorganized RoomStore, the Affiliated Debtors or their respective successors or assigns or such entities' properties unless a proof of claim is filed with the Claims Agent and served upon Reorganized RoomStore within thirty (30) days after service of the earlier of (a) notice of the Confirmation Order or (b) other notice that the executory contract or unexpired lease has been rejected.
(k) Corporate Governance, Directors and Officers and Corporate Action (i) Amended Articles of Incorporation and By-laws
22. Pursuant to Bankruptcy Code section 1123(a)(5), Reorganized RoomStore is authorized to file amended articles of incorporation with the Secretary of State of Virginia in accordance with the Virginia Stock Corporation Act effective as of the Effective Date. The amended articles of incorporation will, among other things, authorize the issuance of up to 25,000,000 shares of New RoomStore Common Stock. In addition, the amended articles of incorporation shall prohibit the issuance of non-voting equity securities to the extent required by the provisions of section 1123(a)(6) of the Bankruptcy Code. After the Effective Date, Reorganized RoomStore may amend and restate such articles of incorporation and other constituent documents as permitted by Virginia law. (ii) Directors and Officers of Reorganized RoomStore
23. On the Effective Date, the term of office of the current members of the Debtor's board of directors shall expire. The identities of the directors and officers of Reorganized RoomStore on and after the Effective Date, as well as the nature of proposed compensation for any of the officers of Reorganized RoomStore who qualify as an "insider," as such term is defined in section 101(31) of the Bankruptcy Code, have been set forth in the Plan Supplement.
24. After the Effective Date, the composition of Reorganized RoomStore's board of directors shall be subject to the provisions of the amended and restated articles of incorporation and bylaws of Reorganized RoomStore. The board of directors of Reorganized RoomStore shall have responsibility for the management, control and operation of Reorganized RoomStore on and after the Effective Date.
25. The existing senior officers of the Debtor shall continue to serve in such capacities with Reorganized RoomStore after the Effective Date, subject to the terms of any applicable employment agreements and the rights of Reorganized RoomStore's board of directors to dismiss such officers with or without cause.
26. Pursuant to section 1129(a)(5)(A)(ii) of the Bankruptcy Code, the Bankruptcy Court approves as consistent with the interests of creditors and interest holders and with public policy the selection, election, and/or continuance, as the case may be, of these individuals; provided, however, that nothing set forth herein shall prevent any of the foregoing individuals from resigning or from being removed or replaced as an officer or director without further order of the Bankruptcy Court. On the Effective Date, the operation of Reorganized RoomStore shall become the general responsibility of the new Board of Directors of Reorganized RoomStore subject to, and in accordance with, its respective amended or restated certificate of incorporation. (l) Distributions
27. The provisions regarding voting and Distributions under the Plan and treatment of Disputed, contingent and unliquidated Administrative Claims, Claims, and Interests, set forth in Articles II, III and IV of the Plan shall be, and hereby are, approved.
28. The Distributions under the Plan shall be made to holders of Allowed Claims as of the Record Date.
(m) Release by Debtor of Certain Parties
29. Except as otherwise specifically provided in the Plan or this Confirmation Order, pursuant to section 1123(b)(3) of the Bankruptcy Code, as of the Effective Date, the Debtor, in its individual capacity and as a debtor in possession for and on behalf of its Estate, shall release and discharge and be deemed to have conclusively, absolutely, unconditionally, irrevocably and forever released, waived and discharged all Released Parties for and from any and all claims, obligations, rights, Causes of Action, and liabilities, existing as of the Effective Date in any manner arising from, based on or relating to, in whole or in part, the Debtor, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between the Debtor or any Released Party, the restructuring of Claims and Interests prior to or in the Chapter 11 Case, or any act, omission, occurrence or event in any manner related to any such Claims, Interests, restructuring or the Chapter 11 Case. Reorganized RoomStore shall be bound, to the same extent the Debtor is bound, by all of the releases set forth above.
(n) Release by Holders of Claims and Interests
30. Except as otherwise specifically provided in the Plan, on the Effective Date, (A) EACH PERSON THAT VOTED TO ACCEPT THE PLAN; AND (B) TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AS SUCH LAW MAY BE EXTENDED OR INTERPRETED SUBSEQUENT TO THE EFFECTIVE DATE, EACH ENTITY (OTHER THAN AN AFFILIATED DEBTOR), THAT HAS HELD, HOLDS OR MAY HOLD A CLAIM OR INTEREST, IN CONSIDERATION FOR THE OBLIGATIONS OF THE DEBTOR AND REORGANIZED ROOMSTORE UNDER THE PLAN AND THE CASH, NEW ROOMSTORE COMMON STOCK, AND OTHER CONTRACTS, INSTRUMENTS, RELEASES, AGREEMENT OR DOCUMENTS TO BE DELIVERED IN CONNECTION WITH THE PLAN (EACH A " RELEASE OBLIGOR "), SHALL HAVE CONCLUSIVELY, ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND FOREVER, RELEASED AND DISCHARGED EACH RELEASED PARTY FROM ANY CLAIM OR CAUSE OF ACTION EXISTING AS OF THE EFFECTIVE DATE ARISING FROM, BASED ON OR RELATING TO, IN WHOLE OR IN PARTY, THE SUBJECT MATTER OF, OR THE TRANSACTION OR EVENT GIVING RISE TO, THE CLAIM OR INTEREST OF SUCH RELEASE OBLIGOR, AND ANY ACT, OMISSION, OCCURRENCE OR EVENT IN ANY MANNER RELATED TO SUCH SUBJECT MATTER, TRANSACTION OR OBLIGATION, PROVIDED, HOWEVER , THAT ARTICLE 10.6 OF THE PLAN SHALL NOT RELEASE ANY RELEASED PARTY FROM ANY CAUSE OF ACTION HELD BY A GOVERNMENTAL ENTITY EXISTING AS OF THE EFFECTIVE DATE, BASED ON (I) THE INTERNAL REVENUE CODE OR OTHER DOMESTIC STATE, CITY OR MUNICIPAL TAX CODE, (II) THE ENVIRONMENTAL LAWS OF THE UNITED STATES OR ANY DOMESTIC STATE, CITY OR MUNICIPALITY, (III) ANY CRIMINAL LAWS OF THE UNITED STATES OR ANY DOMESTIC STATE, CITY OF MUNICIPALITY, (IV) THE EXCHANGE ACT, THE SECURITIES ACT, OR OTHER SECURITIES LAWS AND REGULATIONS OF THE UNITED STATES OF ANY DOMESTIC STATE, CITY OR MUNICIPALITY, OR (V) SECTIONS 1104-1109 AND 1342(D) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED. (o) Exculpation and Limitation of Liability
31. Except as otherwise specifically provided in the Plan and Plan Supplement, the Debtor, Reorganized RoomStore, the Committee, the current and former members of the Committee in their capacities as such, and any of such parties' respective current officers, directors, employees, advisors, attorneys, representatives, financial advisors, investment bankers, or agents and any of such parties' successors and assigns, shall not have or incur, and are hereby released from, any claim, obligation, Cause of Action, or liability to one another or to any Claimholder or Interestholder, or any other party in interest, or any of their respective agents, employees, representatives, financial advisors, attorneys or Affiliates, or any of their successors or assigns, for any act or omission in connection with, relating to, or arising out of the filing the Chapter 11 Case, negotiation and filing of the Plan, the pursuit of confirmation of the Plan, the consummation of the Plan, the administration of the Plan or the property to be distributed under the Plan, except for their fraud, gross negligence or willful misconduct, and in all respects shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities under the Plan.
(p) Injunction
32. In accordance with the satisfaction, release and discharge provisions contained in Article X of the Plan, and except as otherwise provided in the Confirmation Order, all Persons that have held, hold, or may hold Claims against or Interests in the Debtors are, as of the Effective Date, permanently enjoined from commencing or continuing any action, employment of process, or act to collect, offset, or recover any Claim or Cause of Action satisfied, released, or discharged under the Plan to the fullest extent permissible under applicable law, including, without limitation, to the extent provided for or authorized by sections 524 and 1141 of the Bankruptcy Code, provided, however, that nothing contained herein or in Article X of the Plan shall preclude (x) such Persons from exercising their rights pursuant to and consistent with the terms of the Plan, (y) the investigation, enforcement or prosecution of any Cause of Action held by a governmental entity existing as of the Effective Date, based on the Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, or other securities laws and regulations of the United States, or (z) the determination, assessment or perfection of any Claim arising under the Internal Revenue Code or other domestic state, city or municipal tax code.
(q) Discharge of Debtor
33. Pursuant to section 1141(d) of the Bankruptcy Code, except as otherwise specifically provided in the Plan, the Distributions and rights that are provided in the Plan shall be in complete satisfaction, discharge, and release, effective as of the Confirmation Date (but subject to the occurrence of the Effective Date), of all Claims and causes of action, whether known or unknown, against, liabilities of, liens on, obligations of, rights against, and Interests in the Debtor or any of its assets or properties, regardless of whether any property shall have been distributed or retained pursuant to the Plan on account of such Claims, rights, and Interests, including, but not limited to, demands and liabilities that arose before the Confirmation Date, any liability (including withdrawal liability) to the extent such Claims relate to services performed by employees of the Debtor prior to the Petition Date and that arise from a termination of employment or a termination of any employee or retiree benefit program regardless of whether such termination occurred prior to or after the Confirmation Date, and all debts of the kind specified in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code, in each case whether or not (i) a proof of claim or interest based upon such debt, right, or Interest is filed or deemed filed under section 501 of the Bankruptcy Code, (ii) a Claim or Interest based upon such debt, right, or Interest is allowed under section 502 of the Bankruptcy Code, or (iii) the holder of such a Claim, right, or Interest accepted the Plan. This Confirmation Order shall be a judicial determination of the discharge of all liabilities of and Interests in the Debtor, subject to the Effective Date occurring.
(r) The Intercompany Settlement
34. Pursuant to sections 105 and 1123(b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019(a), the Intercompany Settlement and the transactions contemplated thereby, as set forth more fully in the Plan and Disclosure Statement, are approved as an integral part of the Plan. The Debtor and Affiliated Debtors are authorized to take any and all actions necessary to consummate the Intercompany Settlement and to effectuate all transactions contemplated thereunder without further order of the Bankruptcy Court.
(s) Post-Effective Date Fees and Expenses
35. Upon the Effective Date, any requirement that professionals comply with sections 327 through 331 of the Bankruptcy Code in seeking retention or compensation with respect to services provided to Reorganized RoomStore after such date will terminate.
(t) Substantial Contribution Compensation and Expenses Bar Date
36. Any Person who requests compensation or expense reimbursement for making a substantial contribution in the Chapter 11 Case pursuant to sections 503(b)(3), 503(b)(4), and 503(b)(5) of the Bankruptcy Code must file an application with the clerk of the Bankruptcy Court, on or before a date which is thirty (30) days after the Effective Date (the "503 Deadline"), and serve such application on Reorganized RoomStore and as otherwise required by the Bankruptcy Court and the Bankruptcy Code on or before the 503 Deadline, or be forever barred from seeking such compensation or expense reimbursement.
(u) Dissolution of the Committee
37. Except with respect to filing, defending, and objecting to Professional Claims and substantial contribution claims, and other matters pending on the Effective Date, effective on the Effective Date, the Committee, solely with respect to the Chapter 11 Case of the Debtor, shall dissolve automatically, whereupon its members, Professionals and agents shall be released from any further duties and responsibilities in the Chapter 11 Case and under the Bankruptcy Code with respect to the Chapter 11 Case.
(v) Additional Modifications
38. Prior to substantial consummation of the Plan as defined in section 1101(2) of the Bankruptcy Code, the Debtor and the Committee may, under section 1127(b) of the Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any defect or omission or reconcile any inconsistencies in the Plan, the Disclosure Statement, or the Confirmation Order, and such matters as may be necessary to carry out the purposes and effects of the Plan.
(w) Consummation
39. The substantial consummation of the Plan, within the meaning of section 1127 of the Bankruptcy Code, shall be, and hereby is, deemed to mean the occurrence of the close of the Effective Date.
40. The consummation of the Plan shall not constitute a change of ownership or a change in control, as such terms are used in any employment, severance or termination agreement in effect on the Effective Date and to which the Debtor is a party or under any applicable law of any applicable governmental entity. (x) Revocation, Withdrawal, or Non-Consummation
41. The Debtor and the Committee reserve the right to revoke or withdraw the Plan at any time prior to the Effective Date.
42. If the Debtor and the Committee revoke or withdraw the Plan prior to the Effective Date, or if the Confirmation Date or the Effective Date does not occur, then the Plan, any settlement, or compromise embodied in the Plan, the assumption or rejection of executory contracts or unexpired leases effected by the Plan, and any document or agreement executed pursuant to the Plan shall be null and void. In such event, nothing contained in the Plan, and no acts taken in preparation for consummation of the Plan, shall be deemed to constitute a waiver or release of any Claims by or against or Interests in the Debtor or any other Person, to prejudice in any manner the rights of the Debtor, the Committee, or any other Person in any further proceedings involving the Debtor, or to constitute an admission of any sort by the Debtor, the Committee, or any other Person.
(y) Effect of Reference to the Plan in this Confirmation Order
43. The failure to reference or discuss any particular provision of the Plan or any agreement, document, or instrument to be executed and delivered in connection with consummation of the Plan, including but not limited to the New Credit Facility, in this Confirmation Order shall have no effect on the validity, binding effect, and enforceability of such provision, agreement, document, or instrument, and each provision of the Plan and each agreement, document, and instrument shall have the same validity, binding effect, and enforceability as if fully set forth in this Confirmation Order. (z) Retention of Jurisdiction
44. Pursuant to Article XII of the Plan, this Bankruptcy Court shall retain jurisdiction after the confirmation of the Plan to the fullest extent legally permissible and for any purpose, including all jurisdiction necessary to ensure that the provisions of the Plan are carried out. To the extent that the jurisdiction of this Bankruptcy Court over such matters is exclusive jurisdiction, it shall remain so. In addition, subject to the proviso in the first sentence of this paragraph, this Bankruptcy Court also will retain jurisdiction after entry of this Confirmation Order for the following specific purposes:
i. to hear and determine pending motions for (i) the assumption or rejection or (ii) the assumption and assignment of executory contracts or unexpired leases to which the Debtor is a party or with respect to which the Debtor may be liable, and to hear and determine the allowance of Claims resulting therefrom including the amount of Cure, if any, required to be paid;
ii. to adjudicate any and all adversary proceedings, applications, and contested matters that may be commenced or maintained pursuant to the Chapter 11 Case or the Plan, or that were the subject of proceedings before the Bankruptcy Court prior to the Effective Date, proceedings to adjudicate the allowance of Disputed Claims, and all controversies and issues arising from or relating to any of the foregoing;
iii. to adjudicate any and all disputes arising from the distribution of Cash, New RoomStore Common Stock or other consideration under the Plan;
iv. to ensure that distributions to Allowed Claimholders are accomplished as provided in the Plan;
v. to hear and determine any and all objections to the allowance of Claims and the estimation of Claims, both before and after the Confirmation Date, including any objections to the classification of any Claim, and to allow or disallow any Claim, in whole or in part;
vi. to enter and implement such orders as may be appropriate if the Confirmation Order is for any reason stayed, revoked, modified, or vacated;
vii. to issue orders in aid of execution, implementation, or consummation of the Plan;
viii. to consider any modifications of the Plan, to cure any defect or omission, or to reconcile any inconsistency in any order of the Bankruptcy Court, including, without limitation, the Confirmation Order;
ix. to determine requests for the payment of Claims entitled to priority under section 507(a)(1) of the Bankruptcy Code, including compensation of and reimbursement of expenses of parties entitled thereto;
x. to hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan, the Confirmation Order, including disputes arising under all agreements, documents, or instruments executed in connection with the Plan;
xi. to hear and determine all suits or adversary proceedings to recover assets of the Debtor or property of its estate, wherever located;
xii. to hear and determine matters concerning state, local, and federal taxes in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
xiii. to hear any other matter not inconsistent with the Bankruptcy Code;
xiv. to hear and determine all disputes involving the existence, nature, or scope of the discharges provided in the Plan, including any dispute relating to any liability arising out of the termination of employment or the termination of any employee or retiree benefit program, regardless of whether such termination occurred prior to or after the Effective Date;
xv. to enter a final decree closing the Chapter 11 Case; and
xvi. to enforce all orders previously entered by the Bankruptcy Court.
Unless otherwise specifically provided herein or in a prior order of the Bankruptcy Court, the Bankruptcy Court shall have exclusive jurisdiction to hear and determine disputes concerning Claims, Interests, Retained Actions and any motions to compromise or settle such disputes. Despite the foregoing, if the Bankruptcy Court is determined not to have jurisdiction with respect to the foregoing, or if Reorganized RoomStore chooses to pursue any Retained Action in another court of competent jurisdiction, Reorganized RoomStore will have the authority to bring such action in any other court of competent jurisdiction. J. References to Plan Provisions
45. The failure specifically to include or refer to any particular article, section or provision of the Plan, or any related agreement relating to the Plan in this Confirmation Order shall not diminish or impair the effectiveness of such article, section or provision, it being the intent of the Bankruptcy Court that the Plan be confirmed, and such related agreements be approved in their entirety.
K. Post-Confirmation Notices and Bar Dates (a) Notice of Entry of the Confirmation Order
46. Pursuant to Bankruptcy Rules 2002(f) and 3020(c), on or before the tenth (10th) day following the entry of this Confirmation Order, the Debtor shall serve notice of: (i) entry of this Confirmation Order; (ii) the deadline established herein for filing certain Administrative Claims and the deadline established herein for filing final fee applications for professionals; and (iii) such other matters that the Debtor deem appropriate in the form attached hereto as Exhibit A, which form is hereby approved (the "Notice"). The Notice shall be mailed by the Debtor to all holders of Claims against or Interests in the Debtor and all other persons on whom the Confirmation Hearing Notice was served; provided, however, that the Notice need not be mailed to any person if a previous mailing to such person has been returned as undeliverable by the United States Postal Service, unless the Debtor have been informed in writing of a corrected address for such person. No further notice is necessary. (b) Bar Date for Requests for Administrative Claims
47. All other requests for payment of an Administrative Claim (other than as set forth in Article 2.1 of the Plan) that are not otherwise time barred as a result of the establishment of the Initial Administrative Claims Bar Date must be filed with the Bankruptcy Court and served on Reorganized RoomStore no later than thirty (30) days after the Effective Date. Unless Reorganized RoomStore objects to an Administrative Claim by the Claims Objection Deadline, such Administrative Claim shall be deemed allowed in the amount requested. In the event that Reorganized RoomStore objects to an Administrative Claim, the Bankruptcy Court shall determine the allowed amount of such Administrative Claim. Notwithstanding the foregoing, no request for payment of an Administrative Claim need be filed with respect to an Administrative Claim which is paid or payable by in the ordinary course of business.
(c) Final Fee Applications
48. All final requests for payment of Professional Claims shall be addressed in connection with the reorganization cases of the Affiliated Debtors.
L. Resolution of Objections (a) Resolution of NLRB Objection
49. Notwithstanding any language in the Plan or other relevant documents, the Debtor shall reserve $104,239.71 in the Administrative Claims Reserve for the benefit of the NLRB for distribution thereto if and when there is a settlement or Final Order in favor of the NLRB in the pending unfair labor practice proceeding styled Board Case No. 5-CA-30809 (including any and all appeals) (the "NLRB Case"). The reserve of this amount shall not in any way evidence the amount of the Debtor's ultimate liability, if any, to the NLRB for the alleged commission of unfair labor practices that are the subject of the NLRB's amended proof of claim and the NLRB Case. This reserve shall have no prejudicial effect on any rights, positions or arguments that may be raised by any party to the NLRB Case.
50. Notwithstanding any language in the Plan or other relevant documents, the NLRB shall retain exclusive jurisdiction to adjudicate and liquidate the NLRB Case. The exception provided in the Amended Plan's Injunction provision for governmental entities shall be read to include the NLRB Case. Neither the Debtor nor Reorganized RoomStore shall attempt to seek Bankruptcy Court review or injunction of the NLRB's proceedings related to the NLRB Case.
51. Should a final decision and order be rendered by the NLRB (the "NLRB Decision and Order") concerning the NLRB Case, the NLRB's Decision and Order shall be deemed a "Final Order" (as defined by § 1.56 of the Plan and for purposes of distribution under § 8.6), unless any aggrieved person in the NLRB Case or Reorganized RoomStore appeals the Decision and Order and files a request for review in the appropriate court within thirty (30) days of the rendering of such final NLRB Decision and Order.
(b) Resolution of MDOR Objection
52. The MDOR withdrew its objection.
(c) Resolution of Bell County Objection
53. The Debtors resolved the objection by Bell County by agreeing to a Letter Agreement dated April 20, 2005 to allow and pay the base tax amounts of their claims as secured with a 6% interest rate per annum from the petition date until paid, which payment will occur within 10 days of the entry of this Confirmation Order.
(d) Resolution of Texas Taxing Authorities Objection
54. The Debtors resolved the objection by Texas Taxing Authorities by agreeing to a Letter Agreement dated April 20, 2005 to allow and pay the base tax amounts of their claims as secured with a 6% interest rate per annum from the petition date until paid, which payment will occur within 10 days of the entry of this Confirmation Order.
(e) Resolution of Texas Comptroller Objection
55. To the extent the Texas Comptroller has any valid rights of setoff or recoupment, neither the Plan nor Confirmation Order shall affect or impair such rights.
(f) Resolution of Jewett Objection
56. The Jewetts withdrew their objection.
N. Non-Material Changes
57. Without limiting the generality of the foregoing, and without the need for a further order or authorization of the Bankruptcy Court, the Debtor, with consent of the Committee shall be authorized and empowered to make non-material modifications to the exhibits comprising the Plan Supplement as in its reasonable business judgment may be necessary.
O. Headings
58. Headings utilized herein are for convenience and reference only, and shall not constitute a part of the Plan or this Confirmation Order for any other purpose.
P. Inconsistencies
59. In the event of any inconsistencies between the Plan and the Disclosure Statement, any exhibit to the Plan or Disclosure Statement, or any other instrument or document created or executed pursuant to the Plan, the Plan shall govern.
Q. Authorization to Consummate
60. The Debtor is authorized to consummate the Plan at any time after entry of this Confirmation Order subject to satisfaction or waiver (by the required parties) of the conditions precedent to effectiveness set forth in Article XI of the Plan. R. Section 506(a) Determination
In accordance with section 506(a) of the Bankruptcy Code, the allowed secured claim of the Pre-Petition Secured Lenders shall be limited to a maximum amount of $128,500,000, provided, however, that entry of this Confirmation Order is without prejudice to any claims, rights, defenses, offsets and other rights that the Debtor, the Affiliated Debtors, or the Committee may have with respect to the secured or unsecured portions of the Pre-Petition Secured Lenders' claims, including, without limitation, any rights, defenses, claims or actions arising under or related to the Bankruptcy Code.
S. Modification of Adequate Protection Orders
Notwithstanding any provision in the Adequate Protection Orders to the contrary, upon entry of this Confirmation Order: (i) any payments made by the Debtor or Affiliated Debtors to, for the benefit of, or on behalf of, Wachovia or the Pre-Petition Secured Lenders in excess of $128,500,000 shall be immediately disgorged to the Debtor or Affiliated Debtors as the case may be, without further order of this Court; (ii) the Debtor and Affiliated Debtors shall be excused from further compliance with any provision of the Adequate Protection Orders relating to the payment, contribution, or turnover of estate property by the Debtor or Affiliated Debtor to Wachovia and the Pre-Petition Secured Lenders, including, without limitation, (x) the turnover of Pre-Petition Collateral and the proceeds thereof, and (y) the payment of any and all claims, expenses, invoices, demands and presentments in connection with any workers' compensation claims relating to employee injuries incurred or arising after the Petition Date; and (iii) the Replacement Liens and Super-Priority Claims granted under the Adequate Protection Orders shall be deemed null and void. T. Final Order
61. This Confirmation Order is a Final Order, and the period in which an appeal must be filed shall commence immediately upon the entry hereof in accordance with Federal Rule of Bankruptcy Procedure 3020(e).
IT IS SO ORDERED.
EXHIBIT A UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF VIRGINIA Richmond Division
) In re: ) Chapter 11 Case ) HMY ROOMSTORE, INC., ) Case Nos. 00-34536 ) ) ) Jointly Administered Under ) Case No. 00-34533 Debtor. ) )NOTICE OF CONFIRMATION OF PLAN AND DEADLINES TO FILE ADMINISTRATIVE CLAIMS
TO: ALL HOLDERS OF CLAIMS AND INTERESTS
PLEASE TAKE NOTICE that on May __, 2005, the United States Bankruptcy Court for the Eastern District of Virginia entered the Findings of Fact, Conclusions of Law and Order (the "Confirmation Order") confirming the Amended and Restated Joint Plan of Reorganization, dated March 9, 2005 (as modified and amended from time to time, the "Plan") filed by HMY RoomStore, Inc. (the "Debtor") and the Official Committee of Unsecured Creditors (the "Committee").
PLEASE TAKE FURTHER NOTICE that copies of the Confirmation Order and the Plan may be obtained at the Office of the Clerk of the United States Bankruptcy Court for the Eastern District of Virginia, 1100 East Main Street, Richmond, Virginia 23219.
PLEASE TAKE FURTHER NOTICE that pursuant to the Plan, the automatic stay of section 362 of the United States Bankruptcy Code shall continue in full force and effect until the entry of a final decree in the Chapter 11 Case and the Debtor and its Estate shall be entitled to all of the protections afforded thereby, all in accordance with the Plan.
NOTICE IS FURTHER GIVEN THAT the Confirmation Order provides, among other things, the following deadlines:
1. Administrative Claims Bar Date (Non-Professional Claims/Non-Ordinary Course Goods and Services). Except as otherwise provided in the Plan or the Confirmation Order, any Person holding an Administrative Claim, other than a Professional Claim, shall file a proof of such Administrative Claim with the Clerk of the Bankruptcy Court within thirty (30) days after the occurrence of the Effective Date.
2. Executory Contract and Unexpired Lease Cure Claims. Any Person claiming that a monetary cure amount is due in connection with the assumption of any executory contract or unexpired lease as contemplated by section 365(b) of the Bankruptcy Code must file a monetary cure claim asserting all alleged amounts accrued through the Effective Date, if any (the "Cure Claim"), and file such Cure Claim with the Clerk of the Bankruptcy Court and serve a copy of such Cure Claim upon counsel for Reorganized RoomStore and the Committee no later than thirty (30) days after the Effective Date (the "Cure Claim Submission Deadline").
3. Rejection Damages. If the rejection by the Debtor (pursuant to this Plan or otherwise) of an executory contract or unexpired lease results in a Claim ("Rejection Damages Claim"), such Claim shall filed with the Clerk of the Bankruptcy Court and served upon counsel for the Reorganized RoomStore and the Committee within thirty (30) days after service of the earlier of (a) notice of the Confirmation Order or (b) other notice that the executory contract or unexpired lease has been rejected. 4. Substantial Contribution Compensation and Expenses Bar Date. Any Person who requests compensation or expense reimbursement for making a substantial contribution in the Chapter 11 Case pursuant to sections 503(b)(3), 503(b)(4), and 503(b)(5) of the Bankruptcy Code ("Substantial Contribution Claim") must file an application with the clerk of the Bankruptcy Court, on or before a date which is thirty (30) days after the Effective Date (the "503 Deadline"), and serve such application on Reorganized RoomStore and the Committee as otherwise required by the Bankruptcy Court and the Bankruptcy Code.
ANY PERSON WHO FAILS TO ASSERT AN ADMINISTRATIVE CLAIM, CURE CLAIM, REJECTION DAMAGES CLAIM AND/OR SUBSTANTIAL CONTRIBUTION CLAIM BY THE DEADLINES DESCRIBED HEREIN SHALL BE FOREVER BARRED FROM SEEKING PAYMENT OF SUCH CLAIM AGAINST THE DEBTOR, REORGANIZED ROOMSTORE, OR THE AFFILIATED DEBTORS.