Opinion
No. 03-32094 (DOT)
August 12, 2003
Benjamin C. Ackerly, VSB No. 9120, Michael C. Shepherd, VSB No. 47401, Hunton Williams, LLP, Attorney for Debtors and Debtors in possession.
Frank J. Santoro, VSB No. 20259, Karen M. Crowley, VSB No. 35881, Marcus, Santoro Kozak, P.C., Co-Counsel for the Debtors and Debtors in possession.
FINDINGS OF FACT
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONFIRMING THE DEBTORS' JOINT PLAN OF REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
The above-captioned debtors and debtors-in-possession (the "Debtors") having each filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 101-1330 (the "Bankruptcy Code") on March 4, 2003 (the "Petition Date"); the Debtors having filed on July 1, 2003 the Debtors' Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the "Plan") and the Debtors' Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code, dated July 1, 2003 (the "Disclosure Statement"); this Court having entered an order on July 1, 2003 approving the Disclosure Statement and the Debtors' solicitation and balloting procedures; the Debtors having distributed the Plan together with Ballots to accept or reject the Plan on or prior to July 7, 2003; the Debtors having filed on July 16, 2003 various affidavits of David K. Leininger attesting that a packet of solicitation materials was served upon each impaired Class of Claims or Equity Interests entitled to vote to accept or reject the Plan (collectively, the "Solicitation Package Affidavits"); the Debtors having filed on August 5, 2003, the Sworn Declaration of David K. Leininger Certifying Vote On and Tabulation of Ballots Accepting and Rejecting the Debtors' Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the "Voting Certification") certifying that all impaired Classes voting on the Plan voted to accept the Plan; the Court having fixed August 11, 2003 at 2:00 p.m. as the date and time of the Confirmation Hearing pursuant to Section 1129 of the Bankruptcy Code; the Debtors having filed on July 16, 2003 an affidavit of David K. Leininger attesting that a notice of ummpaired status, which included, inter alia, notice of the confirmation hearing, was served upon all members of Classes that are ummpaired under the Plan and thus not entitled to vote to accept or reject the Plan (the "Notice of Ummpaired Status Affidavit"); the Debtors having filed on July 16, 2003 various affidavits of David K. Leininger attesting that a notice of non-voting status, which included, inter alia, notice of the confirmation hearing, was served upon all members of Classes that are impaired but will receive no distribution under the Plan and are thus deemed to have rejected the Plan (the "Notice of Non-Voting Status Affidavit" and together with the Solicitation Package Affidavit and the Notice of Ummpaired Status Affidavit, the "Affidavits of Service"); the Debtors having filed an Affidavit of Publication of John Michael Minnis on July 21, 2003, attesting that notice of the Confirmation Hearing was published in The Richmond Times-Dispatch, The Roanoke Times, the Virginian-Pnot, the Staunton News Leader, the Harrisonburg Daily News Record, and the Waynesboro News Virginian and an Affidavit of Publication of Gregg Palmer attesting that notice of the Confirmation Hearing was published in the Wall Street Journal (collectively, the "Publication Affidavits"); this Court having reviewed the Plan, the Disclosure Statement and all filed objections and responses, if any, to, and statements and comments regarding, confirmation of the Plan; the Confirmation Hearing having commenced on August 11, 2003 at 2:00 p.m.; this Court having heard the statements of counsel at the Confirmation Hearing; this Court having considered all evidence presented at the Confirmation Hearing; this Court having taken judicial notice of the papers and pleadings on file in the above-captioned Chapter 11 Case; and it appearing to this Court that (a) notice of the Confirmation Hearing and the opportunity for any party in interest to object to confirmation of the Plan was adequate and appropriate as to all parties to be affected by the Plan and the transactions contemplated thereby and (b) the legal and factual bases presented at the Confirmation Hearing establish just cause to confirm the Plan and for the relief granted herein; this Court hereby makes the following findings of fact, conclusions of law, and order (the "Confirmation Order"):
Unless otherwise spicified, capitalized terms and phrases used herein have the meanings ascribed to them in the Plan.
I. FINDINGS OF FACT.
A. Jurisdiction, Venue and Other Matters.
1. Finding of Fact and Conclusions of Law. This Confirmation Order constitutes this Court's findings of fact and conclusions of law under Federal Rule of Civil Procedure 52, as made applicable herein by Rules 7052 and 9014 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). Any and all findings of fact shall constitute findings of fact even if stated as conclusions of law, and any and all conclusions of law shall constitute conclusions of law even if stated as findings of fact.
2. Jurisdiction. On the Petition Date, the Debtors commenced this Chapter 11 Case in good faith by filing voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. The Debtors are and were qualified to be debtors under Section 109 of the Bankruptcy Code. This Court has jurisdiction over this Chapter 11 Case pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157 (b)(2)(L). This Court can exercise its subject matter jurisdiction pursuant to 28 U.S.C. § 157 (b)(l).
3. Venue. The Debtors are Virginia corporations, limited liability companies, a limited partnership and a partnership, with the exception of Richmond 20 MHz LLC, which is a Delaware limited liability company. Accordingly, venue in the Eastern District of Virginia, Richmond Division, was proper as of the Petition Date and continues to be proper pursuant to 28 U.S.C. § 1408 and 1409.
4. Judicial Notice. This Court takes judicial notice of the docket in this Chapter 11 Case maintained by the Clerk of the Bankruptcy Court, including, without limitation, all pleadings and other documents filed, all orders entered, and evidence and argument made, proffered, or adduced at the hearings held before the Court during the pendency of this Chapter 11 Case, including, but not limited to, the hearing to consider the adequacy of the Disclosure Statement.
5. Burden of Proof. The Debtors have the burden of proving the elements of Sections 1129(a) and (b) of the Bankruptcy Code by a preponderance of the evidence and the Debtors have met that burden as further found and determined herein.
6. Transmittal and Mailing of Materials: Notice. The Disclosure Statement, the Plan, the Ballots, and the notices of the Confirmation Hearing were transmitted and served as set forth in the Affidavits of Service, and such transmittal and service was sufficient, and no other and further notice is or shall be required.
7. Voting. Votes to accept or reject the Plan have been solicited and tabulated fairly, in good faith, and in a manner consistent with the Bankruptcy Code, the Bankruptcy Rules and the terms of this Court's Order Approving Disclosure Statement and Setting (i) Record Date, Voting Deadline and Procedures for Temporary Allowance of Certain Claims; (ii) Procedures for Filing Objections to Joint Plan of Reorganization; (iii) Procedures for Balloting, Solicitation and Tabulation of Votes on the Plan; and (iv) Hearing Date to Consider Confirmation Under Chapter 11 of the Bankruptcy Code (the "Solicitation Procedures Order").
B. Compliance With the Applicable Requirements of the Bankruptcy Code.
1. Section 1 129(a)(1) — Compliance With Applicable Provisions of the Bankruptcy Code.
a. The Plan complies with all, and is not inconsistent with, the applicable provisions of the Bankruptcy Code as required by Section 1 129(a)(1) of the Bankruptcy Code, including, without limitation, Sections 1122 and 1123 of the Bankruptcy Code. Pursuant to Sections 1122(a) and 1 123(a)(l) of the Bankruptcy Code, Section 3 of the Plan designates Classes of Claims and interests, other than Administrative Expense Claims, Professional Compensation and Reimbursement Claims and Priority Tax Claims. As required by Section 1122, each Class of Claims and interests contains only Claims and interests that are substantially similar to other Claims or interests within the Class or consists only of every unsecured Claim that is less than or equal to an amount that the Court approves as reasonable and necessary for administrative convenience.
b. Pursuant to Sections 11 23(a)(2) and (3) of the Bankruptcy Code, Sections 4 and 5 of the Plan specify all Claims and interests that are not impaired and specify the treatment of all Claims and Equity interests that are impaired. Pursuant to Section 1 123(a)(4) of the Bankruptcy Code, Section 4 of the Plan also provides the same treatment for each Claim or interest within a particular Class.
c. Pursuant to Section 1 123(a)(5) of the Bankruptcy Code, the Plan provides adequate means for the Plan's implementation. The Debtors will have, upon the Effective Date of the Plan, sufficient Cash to make all payments required to be made on the Effective Date pursuant to the terms of the Plan. Moreover, Section 6 and various other provisions of the Plan specifically provide adequate means for the Plan's implementation, including, without limitation: (i) the entry of Reorganized NTELOS into the New Credit Agreement on the terms set forth in the Exit Financing Term Sheet; (ii) the entry of Reorganized NTELOS into the Modified Hedge Agreements; (iii) the issuance and distribution of the New Common Stock and the New Warrants, as well as the sale of the New Notes; (iv) the cancellation of the Senior Notes, the Subordinated Notes, the Preferred Stock Interests, the Old Common Stock Interests and the Other Equity interests; (v) the adoption of the New Articles of Incorporation; (vi) Cash payments by the Debtors; and (vii) the limited substantive consolidation of the Debtors solely for purposes of actions associated with confirmation and consummation of the Plan, including, but not limited to, voting, confirmation and distribution (the "Limited Substantive Consolidation").
d. Section 6.2 of the Plan provides for the inclusion in the New Articles of Incorporation of all provisions required to be included in the charter of a debtor under Section 11 23(a)(6) of the Bankruptcy Code. The form of the New Articles of Incorporation were filed with the Court as exhibits to the Plan Supplement. Section 6.3 of the Plan provides for the selection of the initial Board of Directors of Reorganized NTELOS and the initial officers of Reorganized NTELOS. As required by Section 1 123(a)(7) of the Bankruptcy Code, (i) the Debtors have selected the initial officers and directors in a manner consistent with the best interests of the holders of Claims and interests and with public policy, and (b) the manner in which successor officers and directors will be chosen as set forth in the New Articles of Incorporation and New By-Laws is also consistent with those interests and with such public policy.
e. The Plan is dated and identifies the entities submitting it as proponents, thereby satisfying Rule 3016(a) of the Bankruptcy Rules.
f. Other than conduct otherwise enjoined by the Bankruptcy Code, the Plan describes in specific and conspicuous language (bold) all acts to be enjoined and identifies the entities that would be subject to any injunction, thereby satisfying Rule 3016(c) of the Bankruptcy Rules.
2. Section 1129(a)(2) — Compliance by the Debtors With Applicable Provisions of the Bankruptcy Code. The Debtors, as proponents of the Plan, complied with all applicable provisions of the Bankruptcy Code as required by Section 1129(a)(2) of the Bankruptcy Code, including, without limitation, Sections 1125 and 1126 of the Bankruptcy Code and Rules 3017, 3018 and 3019 of the Bankruptcy Rules. The Disclosure Statement and the procedures by which the Ballots for acceptance and rejection of the Plan were solicited and tabulated were fair, properly conducted and in accordance with Rules 3017 and 3018 of the Bankruptcy Rules and Section 1126(c) of the Bankruptcy Code.
3. Section 1129(a)(3) — Proposal of Plan in Good Faith. The Debtors proposed the Plan in good faith and not by any means forbidden by law. Consistent with the overriding purpose of Chapter 11 of the Bankruptcy Code, the Plan is designed to allow the Debtors to reorganize by providing a capital structure that will allow the Debtors to satisfy their obligations with sufficient liquidity and capital resources to conduct their business. Moreover, the Plan itself, and the process leading to its formulation, provide independent evidence of the Debtors' good faith.
4. Section 11 29(a)(4) — Bankruptcy Court Approval of Certain Payments as Reasonable. Pursuant to Section 11 29(a)(4) of the Bankruptcy Code, any payment made or promised by the Debtors or a person issuing securities or acquiring property under the Plan, 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 disclosed to this Court. Any such payment made before confirmation of the Plan is reasonable. Any such payment to be made after confirmation of the Plan, other than Claims for professional fees and expenses incurred by the Debtors or Reorganized Debtors after the Confirmation Date, is subject to approval of this Court as reasonable. The amount to be paid to holders of Subordinated Claims, which shall not exceed $750,000 in the aggregate, to reimburse such holders for professional fees and expenses incurred by third party professionals in connection with the restructuring of the Debtors and this Chapter 11 Case, which shall be payable following submission of invoices reasonably satisfactory to the Debtors or Reorganized Debtors, as the case may be, is reasonable.
5. Section 1129(a)(5) — Disclosure of Identity of Proposed Management, Compensation of Insiders and Consistency of Management Proposals With the Interests of Creditors and Public Policy. Pursuant to Section 1 129(a)(5) of the Bankruptcy Code, the Debtors have disclosed the identity and affihations of the proposed directors of Reorganized NTELOS (in the Notice of Identity and Affihations of Directors of Reorganized NTELOS Inc., filed July 22, 2003), the identity and compensation of insiders who will be employed or retained by Reorganized NTELOS (in the Disclosure Statement) and the identity and affihations of the officers of Reorganized NTELOS who will also serve as directors of the NTELOS Subsidiaries (in the Disclosure Statement). The appointment and continuance of the terms of the proposed directors and the continued employment of the officers of NTELOS is consistent with the interests of the holders of Claims and interests and with public policy.
6. Section 1129(a)(6) — Governmental Regulatory Control Over Rate Changes. With respect to the requirements of Section 1 129(a)(6) of the Bankruptcy Code, the Plan does not provide for any changes in rates over which any governmental regulatory commission has jurisdiction.
7. Section 11 29(a)(7) — Best Interests of Creditors and Holders of Equity Interests. With respect to each impaired Class of Claims or Equity Interests, each holder of a Claim or Equity Interest in such Class has accepted the Plan or will receive or retain under the Plan on account of such Claim or Equity Interest property of a value, as of the Effectiye Date, that is not less than the amount such holder would receive or retain if the Debtors were liquidated on the Effective Date under Chapter 7 of the Bankruptcy Code.
8. Section 1129(a)(8) — Acceptance of the Plan by Each Impaired Class.
a. Pursuant to Sections 1126 and 1129(a)(8) of the Bankruptcy Code, (i) as indicated in Sections 4 and 5 of the Plan, Classes 1, 3, 4, 4A, 6, 8 and 11 are ummpaired and (ii) as indicated in the Voting Certification, each impaired Class entitled to vote (Classes 2, 5, 7, 9 and 10) accepted the Plan pursuant to Section 1126(c) of the Bankruptcy Code. Because the Plan provides that holders of Equity Interests in Class 12 (Old Common Stock Interests) and Securities Claims and Equity Interests in Class 13 (Other Equity Interests and Securities Claims) will not receive or retain any property on account of such Equity Interests or Securities Claims, such Classes are deemed to have rejected the Plan pursuant to Section 1126(g) of the Bankruptcy Code. The Plan does not discriminate unfairly, nor is it unfair or inequitable with respect to Classes 12 and 13 pursuant to Section 1129(b)(2)(C)(ii) of the Bankruptcy Code in that no holder of any Claim or Equity Interest junior to Class 12 or Class 13 will receive or retain any property under the Plan. Therefore, notwithstanding the non-compliance with Section 1 129(a)(8) of the Bankruptcy Code as to Classes 12 and 13, the Plan is confirmable because, as more fully set forth in section I.B. 14 of this Confirmation Order, the Plan satisfies Section 1 129(b)(1) of the Bankruptcy Code with respect to Classes 12 and 13.
b. The provisions of the Plan with respect to holders of the ummpaired Claims in Classes 1, 3, 4, 4A, 6, 8 and 11 are fair and appropriate.
9. Section 1129(a)(9) — Treatment of Claims Entitled to Priority Pursuant to Section 507(a) of the Bankruptcy Code. The Plan provides for treatment of Administrative Expense Claims, Priority Tax Claims, Professional Compensation and Reimbursement Claims and Claims entitled to priority pursuant to Sections 507(a)(3)-(7) and 507(a)(9) of the Bankruptcy Code in the manner required by Section 1 129(a)(9) of the Bankruptcy Code.
10. Section 1129(a)(10) — Acceptance By at Least One Impaired Class. As required by Section 1 129(a)(10) of the Bankruptcy Code and as indicated in the Voting Certification, at least one Class of Claims or Equity Interests that is impaired under the Plan has accepted the Plan, excluding votes cast by insiders.
11. Section 1129(a)(11) — Feasibility of the Plan. The Plan is feasible. The Debtors have demonstrated that confirmation of the Plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the Debtors or the Reorganized Debtors. The Plan, therefore, complies with Section 1129(a)(11) of the Bankruptcy Code.
12. Section 1129(a)(12) — Payment of Bankruptcy Fees. In accordance with Section 1129(a)(12) of the Bankruptcy Code, Section 13.1 of the Plan provides for payment of all fees payable under 28 U.S.C. § 1930, as determined by the Court at the Confirmation Hearing, on the Effective Date.
13. Section 1129(a)(13) — Retiree Benefits. In accordance with Section 1129(a)(13) of the Bankruptcy Code, Section 6.15 of the Plan provides for the continuation after the Effective Date of all retiree benefits, as that term is defined in Section 1114(a) of the Bankruptcy Code, to the extent required by Section 1 129(a)(13) of the Bankruptcy Code and in accordance with the contract or program giving rise to any such retiree benefits.
14. Section 1129(b) — Confirmation of the Plan Over Nonacceptance of Impaired Classes. All requirements of Section 1129(b) of the Bankruptcy Code have been satisfied. Pursuant to Section 1129(b)(l) of the Bankruptcy Code, the Plan is confirmed notwithstanding that, contrary to Section 1129(a)(8) of the Bankruptcy Code, the holders of Equity Interests in Class 12 and Claims and Equity Interests in Class 13 are impaired and such holders are deemed to have rejected the Plan. The Plan does not discriminate unfairly and is fair and equitable with respect to the holders of Claims in Class 12 and Claims and Equity Interests in Class 13. The holders in Classes 12 and 13 would not receive or retain any property on account of their Claims and Equity Interests in a liquidation under Chapter 7 of the Bankruptcy Code and no holder of any Claim or Equity Interest junior to either Class 12 or Class 13 will receive or retain any property under the Plan on account of such junior Claim or Equity Interest.
15. Section 1129(d) — Principal Purpose of the Plan. 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 (the "Securities Act"), and no governmental entity has filed any objection asserting such avoidance.
16. Good Faith Solicitation ( 11 U.S.C. § 1125(e)). Based on the record before the Court in this Chapter 11 Case, the Debtors, the DIP Agent, the Agent, the DIP Lenders, the Pre-Petition Secured Lenders, each of the members of the Creditors' Committee, the Participating Noteholders and each of their respective affihates, directors, officers, employees, agents, financial advisors, investment bankers, attorneys, and other professionals have acted in "good faith" within the meaning of Section 1125(e) of the Bankruptcy Code in compliance with the applicable provisions of the Bankruptcy Code and Bankruptcy Rules in connection with all of their respective activities relating to the solicitation of acceptances of the Plan and their participation in the activities described in Section 1125 of the Bankruptcy Code, and are entitled to the protections afforded by Section 1125 of the Bankruptcy Code and the exculpation set forth in Section 11.7 of the Plan.
C. Satisfaction of Conditions to Confirmation Date.
Each of the conditions precedent to the Confirmation Date, as set forth in Section 10.1 of the Plan, other than the entry of this Confirmation Order, has been satisfied.
II. Conclusions of Law.
A. Jurisdiction and Venue.
1. This Court has subject matter jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157 (b)(2)(L). The Court can exercise its subject matter jurisdiction pursuant to 28 U.S.C. § 157(b)(l). The Debtors are and were qualified to be debtors under Section 109 of the Bankruptcy Code.
2. Venue in the Eastern District of Virginia, Richmond Division, was proper as of the Petition Date and continues to be proper under 28 U.S.C. § 1408 and 1409.
B. Exemption From Securities Laws.
1. The Debtors, the DIP Agent, the Agent, the DIP Lenders, the Pre-Petition Secured Lenders, each of the members of the Creditors' Committee and the Participating Noteholders and each of their respective affihates, directors, officers, employees, agents, financial advisors, investment bankers, attorneys, and other professionals have acted in "good faith" within the meaning of Section 1125(e) of the Bankruptcy Code in compliance with the applicable provisions of the Bankruptcy Code and Bankruptcy Rules in connections with all their respective activities described in Section 1125 of the Bankruptcy Code. Accordingly, pursuant to Section 1125(e) of the Bankruptcy Code, none of these parties that participated in (i) the Debtors' transmittal of Plan solicitation materials, as described above, (ii) the solicitation of acceptances of the Plan or (iii) the offer, issuance, sale or purchase of any security offered or sold under or in connection with the Plan, shall be liable, on account of such actions or such participation, for any violation of any applicable law, rule or regulation governing the solicitation of acceptance or rejection of the Plan or the offer, issuance, sale or purchase of securities.
2. Pursuant to Section 1145(a)(l) of the Bankruptcy Code, the offer and sale by the Debtors, the Reorganized Debtors or the Disbursing Agents (if any are appointed) pursuant to the Plan and Disclosure Statement (and the solicitation thereunder) of the New Common Stock and New Warrants in connection with the Plan shall be exempt from section 5 of the Securities Act and any state or local law requiring registration for the offer or sale of a security or registration or licensing of an issuer of, underwriter of, or broker or dealer in, a security.
3. Pursuant to Section 1145(a)(2) of the Bankruptcy Code, the offer and sale by the Debtors or the Reorganized Debtors of the New Common Stock through and upon the exercise of the New Warrants shall be exempt under section 5 of the Securities Act and any other state or local law requiring registration for the offer or sale of a security or registration or licensing of an issuer of, underwriter of, or broker or dealer in a security.
4. Pursuant to and to the fullest extent permitted under Section 1145 of the Bankruptcy Code, the resale of any of the securities referenced in Section II.B.2 and II.B.3 of this Confirmation Order shall be exempt from section 5 of the Securities Act and any state or local law requiring registration prior to the offering, issuance, sale or distribution of securities.
C. Compliance With Section 1129 of the Bankruptcy Code.
As set forth in Section I.B of this Confirmation Order, the Plan complies with the applicable requirements of Section 1129 of the Bankruptcy Code.
D. Limited Substantive Consolidation.
No creditor of any of the Debtors will be prejudiced by the Limited Substantive Consolidation of the Chapter 11 Cases and such Limited Substantive Consolidation will benefit all creditors of the Debtors.
E. Approval of the Releases, Compromises, Settlements Discharges and Injunctions.
Pursuant to Section 1123(b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019(a), the settlements, compromises, releases, discharges and injunctions set forth in the Plan, including, without limitation, the settlements, compromises, releases, discharges and injunctions set forth in Sections 6.17, 11.3, 11.7, 11.8, 11.9, 11.11 and 11.12 of the Plan and implemented by this Confirmation Order, hereby are approved as fair, equitable, reasonable and in the best interests of the Debtors, the Reorganized Debtors and their estates, creditors and equity security holders, and the settlement or compromise of all claims or controversies set forth in Section 6.10 of the Plan relating to the termination of all contractual, legal and equitable subordination rights that any holder may have with respect to any distributions to be made pursuant to the Plan is in the best interests of the Debtors, the Reorganized Debtors, their estates, creditors and equity security holders.
F. Agreements and Other Documents.
Pursuant to Section 1142(b) of the Bankruptcy Code, no action of the directors or stockholders of the Debtors or the Reorganized Debtors will be required (i) to authorize the Debtors (or any of their officers, employees or agents acting on their behalf) to effectuate and carry out the Plan or any order of this Court relating thereto, (ii) to consummate the transactions contemplated by the Plan, the Disclosure Statement or such orders, or (iii) to take any other action or thing contemplated by the Plan, the Disclosure Statement or such orders as may be necessary or appropriate to fully effectuate the interests and purposes thereof, and all such actions and things hereby are or will be deemed to have been taken or done with like effect as if they had been authorized or approved by unammous actions of the directors and the stockholders of the Debtors and Reorganized Debtors.
G. Assumption and Rejection.
1. Section 9 of the Plan governing the assumption and rejection of executory contracts and unexpired leases satisfies the requirements of Section 365 of the Bankruptcy Code. Pursuant to Section 9.1 of the Plan, the Debtors will assume, as of the Effective Date, all executory contracts and unexpired leases to which the Debtors are a party, except for any executory contract or unexpired lease that, prior to the Effective Date, (a) has been assumed or rejected pursuant to Final Order of the Court, (b) is included on the Contract Rejection Schedule, or (c) is the subject of a separate pending motion filed under Section 365 of the Bankruptcy Code by the Debtors, and entry of this Confirmation Order shall constitute approval of such assumptions pursuant to Sections 365(a) and 1123 of the Bankruptcy Code.
2. Except and to the extent previously assumed or rejected by Final Order on or before the Confirmation Date, all employment and severance agreements and policies, and all employee compensation and benefit plans, policies, and programs of the Debtors applicable generally to their employees, as in effect on the Effective Date, including, without limitation, all savings plans, retirement plans, health care plans, disability plans, severance benefit plans, incentive plans, life, accidental death and dismemberment insurance plans, and programs subject to Sections 1114 and 1129(a)(13) of the Bankruptcy Code, entered into before and after the Petition Date and not since terminated, shall be deemed to be, and shall be treated as though they are, executory contracts that are assumed under the Plan, and the Debtors' obligations under such agreements and programs shall survive the Effective Date of the Plan, without prejudice to the Reorganized Debtors' rights under applicable non-bankruptcy law to modify, amend, or terminate the foregoing arrangements, except for (i) such executory contracts or plans specifically rejected pursuant to the Plan, and (ii) such executory contracts or plans as have previously been terminated, or rejected, pursuant to a Final Order, or specifically waived by the beneficiaries of such plans, contracts, or programs. Likewise, except and to the extent previously assumed or rejected by Final Order on or before the Confirmation Date, certain salary continuation agreements, supplemental retirement agreements, supplemental retirement plans and employment agreements of retirees entered into before the Petition Date and not since terminated, shall be deemed to be, and shall be treated as though they are, executory contracts that are assumed under the Plan, and the Debtors' obligations under such agreements and plans shall survive the Effective Date of the Plan.
3. The obligations of the Debtors pursuant to, or under, their respective governing documents, contracts, Virginia or Delaware state law or otherwise to indemnify their directors and officers or members or partners who were or are directors, officers, members or partners, respectively, shall be deemed to be, and shall be treated as though they are, executory contracts that are assumed under the Plan.
III. ORDER.
A. Confirmation of the Plan and Notice of the Confirmation Hearing.
1. The record of the Confirmation Hearing is hereby closed.
2. The Plan (including all exhibits thereto) which is attached as Exhibit A to this Confirmation Order and which is incorporated herein by reference is hereby approved and confirmed in all respects pursuant to Section 1129 of the Bankruptcy Code.
3. If there is any direct conflict between the terms of the Plan and the terms of this Confirmation Order, the terms of this Confirmation Order shall control. The provisions of the Confirmation Order are integrated with each other and are non-severable and mutually dependent unless expressly stated by further order of this Court. All objections and responses to, and statements and comments regarding, the Plan, to the extent they have not been withdrawn prior to entry of this Confirmation Order or are not cured by the relief granted herein, are hereby expressly overruled.
4. The Debtors, Reorganized Debtors and each other appropriate party are hereby authorized and directed to take all actions necessary or appropriate to enter into, implement and consummate the contracts, instruments, releases, indentures, and other agreements created in connection with the Plan (including, without limitation, the New Credit Agreement and the instruments and agreements (including the notes, guarantees, security agreements and pledge agreements contemplated thereby) referred to therein, the Modified Hedge Agreements, and the instruments and agreements governing and representing the New Common Stock, the New Notes and the New Warrants, and the transactions contemplated by the Purchase Agreement) (collectively, the "Plan Documents"), all of which Plan Documents are hereby approved, and to take such other steps to perform such other acts as may be necessary to implement and effectuate the Plan, and are further authorized and directed to execute and deliver any instrument and perform any other act that is necessary for the consummation of the Plan, including the implementation of the Plan Documents, in accordance with Section 1142(b) of the Bankruptcy Code.
5. Pursuant to Section 1145(a)(l) of the Bankruptcy Code, the offer and sale by the Debtors, the Reorganized Debtors or the Disbursing Agents (if any are appointed) pursuant to the Plan and Disclosure Statement (and the solicitation thereunder) of the New Common Stock and the New Warrants in connection with the Plan shall be exempt from section 5 of the Securities Act and any state or local law requiring registration for the offer or sale or registration or licensing of an issuer of, an underwriter, or broker or dealer in, a security.
6. Pursuant to Section 1145(a)(2) of the Bankruptcy Code, the offer and sale by the Debtors or the Reorganized Debtors of the New Common Stock through and upon the exercise of the New Warrants shall be exempt from section 5 of the Securities Act and any other state or local law requiring registration for the offer or sale of a security or registration or licensing of an issuer of, underwriter of, or broker or dealer in, a security.
7. Pursuant to, and to the fullest extent permitted under, Section 1145 of the Bankruptcy Code, the resale of any of the securities referenced in Sections III.A.5 and III.A.6 of this Confirmation Order shall be exempt from section 5 of the Securities Act and any state or local law requiring registration prior to the offering, issuance, sale or distribution of securities.
8. As established through the Affidavits of Service and the Publication Affidavits, the Debtors provided good and sufficient notice of the Confirmation Hearing and the deadline for filing and serving objections to the Plan and Disclosure Statement, which notice is hereby approved.
9. This Confirmation Order shall be effective upon the date of its entry and the requirement that this Confirmation Order be stayed for a period of ten (10) days under Bankruptcy Rule 3020(e) shall not apply.
B. Effects of Confirmation.
1. Unimpaired Claims. All Administrative Claims, Priority Tax Claims, Professional Compensation and Reimbursement Claims, Class 1, 3, 4, 4A, 6, 8 and 11 Claims and interests are not impaired by the Plan in accordance with Section 1124 of the Bankruptcy Code. Neither the Plan nor this Confirmation Order shall be construed as altering in any way the legal, equitable or contractual rights of holders of ummpaired Claims. Except as otherwise provided in the Plan, nothing under the Plan or this Confirmation Order shall affect the Debtors' or the Reorganized Debtors' rights and legal and equitable defenses with respect to any ummpaired Claims or interests, including, but not limited to, all rights in respect of legal and equitable defenses to setoffs or recoupments against ummpaired Claims.
2. Injunctions and Stays Remain in Effect Until the Effective Date. All injunctions and stays in effect on the Confirmation Date pursuant to Sections 105 and 362 of the Bankruptcy Code or otherwise shall remain in full force and effect until the Effective Date of the Plan, except that nothing herein shall bar the filing of financing documents in connection with the implementation of the Plan Documents or the taking of such other actions as are necessary to effectuate the transactions contemplated by the Plan or this Confirmation Order.
C. Matters Relating to Implementation of the Plan.
1. Binding Effect. Immediately upon the entry of this Confirmation Order, the terms of the Plan hereby are deemed binding upon the Debtors, the Reorganized Debtors, and all holders of Claims or interests (irrespective of whether such Claims or interests are impaired under the Plan or whether the holders of such Claims or interests accepted or are deemed to have accepted the Plan), any and all non-debtor parties to executory contracts and unexpired leases with the Debtors and their respective heirs, executors, administrators, successors, or assigns, if any, of any of the foregoing.
2. Continued Corporate Existence; Vesting of Assets.
a. The Reorganized Debtors shall continue to exist after the Effective Date as separate corporate entities, limited liability companies, limited partnerships and partnerships under the laws of the Commonwealth of Virginia and state of Delaware, as appropriate, and without prejudice to any right to alter or terminate such existence (whether by merger or otherwise). Except as otherwise provided in the Plan or this Confirmation Order, on the Effective Date, all property of the Debtors' estates shall vest in the Reorganized Debtors, free and clear of all Claims, Liens, encumbrances and interests of holders of Claims and interests.
b. On and after the Effective Date, the Reorganized Debtors may operate their businesses and may use, acquire and dispose of property and compromise or settle any Claims or interests without supervision or approval by this Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules. Without limiting the foregoing, administrative expenses incurred by the Debtors or Reorganized Debtors after the Confirmation Date, including, without limitation, Claims for professional fees and expenses, shall not be subject to application and may be paid by the Debtors or Reorganized Debtors, as the case may be, in the ordinary course of business and without further Court approval; provided, however, that no Claims for professional fees and expenses incurred after the Confirmation Date shall be paid until after the occurrence of the Effective Date.
3. Entry Into the New Credit Agreement and Modified Hedge Agreements.
a. In conjunction with the Effective Date, the Reorganized Debtors shall enter into the New Credit Agreement and Modified Hedge Agreements as set forth in Sections 6.4 and 6.5 of the Plan. The Reorganized Debtors are authorized to enter into the agreements and instruments provided for in the New Credit Agreement and Modified Hedge Agreements and to incur obligations and grant liens in connection with the New Credit Agreement. With the exception of approval from the State Corporation Commission of the Commonwealth of Virginia authorizing NTELOS Telephone Inc. and Roanoke Botetourt Telephone Company to be guarantors under the New Credit Agreement, no consent or authorization of, approval by, notice to, or filing with any governmental authority or other person is required in or in connection with the execution, delivery, performance, validity or enforceability of the New Credit Agreement. Subject to its terms, the New Credit Agreement shall be effective on the Effective Date.
b. On the Effective Date, the Reorganized Debtors shall grant the collateral agent under the New Credit Agreement liens on all of their assets to secure the Reorganized Debtors' obligations under the New Credit Agreement. In furtherance of the foregoing, the Reorganized Debtors are authorized to make all filings and recordings, to obtain all governmental approvals and consents necessary to establish and perfect such interests under the provisions of state, federal or other law that would be applicable in the absence of this Confirmation Order, and will thereafter cooperate to make all filings and recordings that otherwise would be necessary under applicable law to give notice of such liens and security interests to third parties.
c. The New Credit Agreement and Modified Hedge Agreements are entered into in good faith and are in the best interests of the Debtors and their respective estates.
d. If after the Effective Date, this Confirmation Order is vacated and at the time this Confirmation Order is vacated, the New Credit Agreement is in effect, then (i) the vacatur of this Confirmation Order shall not adversely affect the validity or priority of the obligations incurred by the Reorganized Debtors or any liens, claims and collateral granted the lenders under the New Credit Agreement and (ii) the terms and conditions of the New Credit Agreement, as in effect at the time of the vacatur of this Confirmation Order, shall be binding on the Reorganized Debtors, and the lenders under the New Credit Agreement shall enjoy the same priority and legal rights as granted to them by the New Credit Agreement.
4. Payment of DIP Lender Claims. On the Effective Date, the Reorganized Debtors shall pay to the DIP Lenders, on account of the DIP Lender Claims, Cash equal to the amount of the DIP Lender Claims, if any.
5. Cancellation of Old Securities and Surrender of Securities and Other Documentation. On the Effective Date, the Senior Notes, the Subordinated Notes, and documents which evidence the Senior Debt Claims and the Subordinated Claims, the Old Preferred Stock Interests, the Old Common Stock Interests and the Other Equity Interests and Securities Claims shall (a) be cancelled and (b) have no effect other than the right to participate in distributions, if any, provided for under the Plan in respect of such Claims and Equity Interests. Except for purposes of effectuating the distributions under the Plan on the Effective Date and to allow the Senior Indenture Trustee and Subordinated Indenture Trustee to retain all Liens pursuant to the terms of the Senior Indenture and the Subordinated Indenture with respect to distributions to noteholders under the Plan, the Senior Indenture and the Subordinated Indenture shall be cancelled. Except as otherwise provided in the Plan, the Debtors, on the one hand, and the Senior Indenture Trustee or Subordinated Indenture Trustee, on the other hand, will be released from any and all obligations under the Senior Indenture and the Subordinated Indenture except with respect to the distributions required to be made to the Senior Indenture Trustee or the Subordinated Indenture Trustee as provided in the Plan. Termination of the Senior Indenture and the Subordinated Indenture shall not impair the rights of the holders of Senior Debt Claims or Subordinated Claims to receive distributions on account of such Claims pursuant to the Plan; provided, that any New Common Stock to be distributed pursuant to the Plan on account of any Allowed Claim represented by a Voting Security held in physical, registered, certificated form, pending such surrender, shall be treated as an undeliverable distribution pursuant to Section 7.4 of the Plan; provided further, however, that (a) Voting Securities held in book-entry form through bank and broker nominee accounts shall be mandatorily exchanged for the New Common Stock as set forth in Section 7.3 of the Plan, and (b) Voting Securities held in bearer form through a broker or bank participant in DTC shall be mandatorily exchanged for the New Common Stock through the facilities of such nominees and the security depository holding such Voting Securities on behalf of the broker or bank as set forth in Section 7.3 of the Plan.
6. Issuance of New Common Stock New Notes and New Warrants. All shares of New Common Stock and all New Notes and New Warrants issued pursuant to the Plan shall, upon issuance, be duly authorized and validly issued, and the shares of New Common Stock and the New Notes and Warrants shall, upon issuance, be fully paid and nonassessable. The New Notes, when issued pursuant to the Plan, will constitute a legal, valid and binding obligation of Reorganized NTELOS, enforceable against it in accordance with their terms. No consent or authorization of, approval by, notice to, or filing with, any governmental authority or other person is required in or in connection with the execution delivery, performance, validity or enforceability of the New Notes.
7. Shareholders' Agreement. Pursuant to the terms of the Plan, as of the Effective Date, Reorganized NTELOS and holders of New Common Stock, New Warrants and other Equity Interests will be bound by the Shareholders' Agreement, irrespective of whether they have executed and delivered such agreement.
8. Corporate Governance — New Articles of Incorporation. As of the Effective Date, the New Articles of Incorporation and New By-Laws shall be substantially in the form attached as exhibits to the Plan. After the Effective Date, Reorganized NTELOS may amend and restate the New Articles of Incorporation and/or New By-Laws as permitted by applicable law.
9. Limited Substantive Consolidation. The Debtors respective Chapter 11 cases shall be, and hereby are, substantively consolidated solely for purposes of actions associated with confirmation and consummation of the Plan, including but not limited to voting, confirmation and distribution. On and after the Effective Date, each and every Claim filed or to be filed in this Chapter 11 Case against any of the Debtors shall be deemed filed against the consolidated Debtors, and shall be deemed a single consolidated Claim against and obligation of all of the consolidated Debtors after the Effective Date. Distributions on account of Intercompany Claims shall be made in the ordinary course of business following the Effective Date. Such Limited Substantive Consolidation shall not effect (other than for Plan voting, treatment, and/or distribution purposes) (a) the legal and corporate structures of the Reorganized Debtors, (b) Subsidiary Interests, or (c) pre- and post-Petition Date guarantees that are required to be maintained (i) in connection with the executory contracts assumed herein, (ii) in connection with the terms of the New Credit Agreement, and (iii) pursuant to the terms and conditions contained in the Plan.
10. Discharge. Exculpation. Release. Injunction and Related Provisions.
a. Discharge of the Debtors.
Except to the extent otherwise provided by the Plan, the treatment of all Claims against or interests in the Debtors hereunder shall be in exchange for and in complete satisfaction, discharge and release of all (a) Claims against and interests in the Debtors of any nature whatsoever, known or unknown, including, without limitation, any interest accrued or expenses incurred thereon from and after the Petition Date, and (b) all Claims against and interests in the Debtors' estates or properties or interests in property. Except as otherwise provided by the Plan, upon the Effective Date, all Claims against and interests in the Debtors will be satisfied, discharged and released in full exchange for the consideration provided under the Plan. Except as otherwise provided herein, all entities shall be precluded from asserting against the Debtors or Reorganized Debtors or their respective properties or interests in property any other Claims based upon any act or omission, transaction or other activity of any kind or nature that occurred prior to the Effective Date.
b. Exculpation.
The Debtors, DIP Lenders, Pre-Petition Secured Lenders, DIP Agent, Agent, Secured Hedge Parties, Participating Noteholders, Creditors' Committee and members thereof, holders of Old Preferred Stock, Disbursing Agents, holders of Subordinated Claims and each of their respective members, partners, officers, directors, employees and representatives (including any attorneys, financial advisors, investment bankers and other professionals retained by such persons) shall have no liability to any person for any act or omission in connection with, or arising out of, the Disclosure Statement, the Plan, the solicitation of votes for and the pursuit of confirmation of the Plan, the formulation, preparation, implementation or consummation of the Plan or the transactions contemplated thereby, including the pre-petition and post-petition negotiations with respect thereto, the administration of the Plan or the property to be distributed under the Plan or this Chapter 11 Case or any contract, instrument, release or other agreement or document created or entered into in connection with the Plan, or any other act taken or omitted to be taken in connection with this Chapter 11 Case, except for willful misconduct or gross negligence as determined by a Final Order and, in all respects, shall be entitled to rely upon the advice of counsel with respect to their duties and responsibilities under the Plan and this Chapter 11 Case.
c. Indemnification Obligations.
Subject to the occurrence of the Effective Date, the obligations of the Debtors, only to the extent permitted under the laws of the Commonwealth of Virginia or the State of Delaware, as applicable, to indemnify, defend or reimburse directors or officers or members or partners who were or are directors, officers, members or partners of the Debtors, respectively, against any claims or causes of action as provided in the Debtors' respective governing documents, Virginia or Delaware state law or contract shall survive confirmation of the Plan, remain unaffected thereby and not be discharged.
d. Releases and Injunctions.
i. Certain Mutual Releases.
Except as otherwise specifically provided by the Plan, on and after the Effective Date, each of the Debtors, Reorganized Debtors, present directors and officers of NTELOS, current management of the Debtors, Debtors' affihates, DIP Lenders, Pre-Petition Secured Lenders, DIP Agent, Agent, Secured Hedge Parties, Creditors' Committee and the members thereof, Participating Noteholders, and the holders of Subordinated Claims (and all subsidiaries and affiliates and officers, directors, partners, members, attorneys, financial advisors, investment bankers and other professionals, and agents of each of the foregoing), for good and valuable consideration, including, but not limited to, the commitment, obligation and service of each of the aforementioned to facilitate the expeditious reorganization of the Debtors and the implementation of the restructuring contemplated by the Plan, shall automatically be deemed to have released one another unconditionally and forever from any and all Claims, obligations, rights, suits, damages, causes of action, remedies and liabilities, whatsoever, whether liquidated or unliquidated, fixed or contingent, matured or unmatured, known or unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity or otherwise, that any of the foregoing persons or entities would have been legally entitled to assert (in their own right, whether individually or collectively, or on behalf of the holder of any Claim or Equity Interest or other person or entity), based in whole or in part upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date, relating in any way to the Debtors, the Reorganized Debtors, this Chapter 11 Case, the Plan, the Disclosure Statement, or any related agreements, instruments, or other documents, except for (a) Claims arising under the Plan, the New Credit Agreement, Modified Hedge Agreements, other Plan Documents or any related agreements, instruments, releases, indentures, and other agreements and documents delivered thereunder; (b) rights of the Debtors, Reorganized Debtors and the Participating Noteholders to enforce the Subscription Agreement or Purchase Agreement or any related agreements, instruments, releases, indentures, and other agreements and documents delivered thereunder; and (c) any intentional acts of the past and present directors and officers of NTELOS, current management of the Debtors, professionals of the Debtors and their affiliates, Participating Noteholders and the Creditors' Committee or members thereof which constitute fraud and, when the party bringing the cause of action (or its respective employees, agents, or advisors) did not have actual knowledge of such intentional acts (or the substance of such acts) as of the Effective Date; provided, however, with respect to any intentional acts which constitute fraud, the knowledge of former and existing officers and directors of NTELOS shall not be imputed to NTELOS or Reorganized NTELOS (before or after the Effective Date). Notwithstanding the foregoing, the present directors and officers of NTELOS, and current management of the Debtors shall not be released or discharged from contractual obligations to the Debtors or Reorganized Debtors with respect to employment and other agreements assumed pursuant to the Plan or otherwise.
ii. Limited Releases by Holders of Claims and Equity Interests.
On and after the Effective Date, each holder of a Claim or Equity Interest who so elected on their Ballot shall be deemed to have unconditionally released the Debtors, Reorganized Debtors, past and present directors and officers of NTELOS, current management of the Debtors, Debtors' affiliates, DIP Lenders, Pre-Petition Secured Lenders, DIP Agent, Agent, Secured Hedge Parties, Creditors' Committee and members thereof, Participating Noteholders, and each of the holders of Senior Debt Claims, Subordinated Claims and Old Preferred Stock Interests (and all subsidiaries and affiliates and officers, directors, partners, members, attorneys, financial advisors, investment bankers and other professionals, and agents of each of the foregoing) from any and all Claims, obligations, rights, suits, damages, causes of action, remedies and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity or otherwise, that such person or entity would have been legally entitled to assert (whether individually or collectively), based in whole or in part upon any act or omission, transaction, agreement, event or other occurrence taking place on or before the Effective Date in any way relating or pertaining to the Debtors or the Reorganized Debtors, the Chapter 11 Case, or the negotiation, formulation and preparation of the Plan or any related agreements, instruments or other documents.
(iii) Injunction as to Debtors and Reorganized Debtors.
Except to the extent otherwise provided by the Plan, from and after the Confirmation Date all persons who have held, hold or may hold Claims against or interests in the Debtors are permanently enjoined from taking any of the following actions against any of the Debtors or the Reorganized Debtors on account of any such Claims or interests: (a) commencing or continuing, in any manner or in any place, any action or other proceeding; (b) enforcing or attaching, collecting or recovering, in any manner, any judgment, award, decree or order; (c) creating, perfecting or enforcing any lien or encumbrance; (d) asserting a setoff, right of subrogation or recoupment of any kind against any debt, liability or obligation due to the Debtors; and (e) commencing or continuing, in any manner or in any place, any action that does not comply with or is inconsistent with the provisions of the Plan; provided, however, that nothing contained in herein shall preclude such persons from exercising their rights pursuant to and consistent with the terms of the Plan.
(iv) Injunction as to Non-Debtor Parties.
Except to the extent otherwise provided by the Plan, from and after the Confirmation Date, all persons who have held, hold, or may hold Claims against or interests in the Debtors who elected on their Ballots to agree to be subject to the injunction described in this paragraph shall be permanently enjoined from taking any of the following actions against any of the DIP Lenders, the Pre-Petition Secured Lenders, the DIP Agent, the Agent, the Secured Hedge Parties, the Participating Noteholders, the Creditors' Committee or the members thereof or any of their respective property on account of any such Claims or interests: (a) commencing or continuing, in any manner or in any place, any action or other proceeding; (b) enforcing or attaching, collecting or recovering, in any manner, any judgment, award, decree or order; (c) creating, perfecting or enforcing any lien or encumbrance; (d) asserting a setoff, right of subrogation or recoupment of any kind against any debt, liability or obligation due to the Debtors; and (e) commencing or continuing, in any manner or in any place, any action that does not comply with or is inconsistent with the provisions of the Plan; provided, however, that nothing contained herein shall preclude such persons from exercising their rights pursuant to and consistent with the terms of the Plan.
11. Corporate Actions. The adoption of the New Articles of Incorporation and New By-Laws of Reorganized NTELOS; the initial selection of the directors and officers of the Reorganized Debtors; the distribution of Cash pursuant to the Plan; the entry into, and the grant of security interests and liens to secure the Reorganized Debtors' obligations under, the New Credit Agreement and the Modified Hedge Agreements as provided in the Plan; the cancellation of the Senior Notes, the Subordinated Notes, the Old Common Stock, the Old Preferred Stock and the Other Equity Interests and related agreements; the issuance and distribution of the New Common Stock and New Warrants; the adoption, execution, delivery and implementation of all guarantees, contracts, leases, instruments, releases, indentures and other agreements, or documents related to any of the foregoing; and any and all of the other matters provided for under the Plan involving corporate action to be taken by or required of the Debtors or Reorganized Debtors hereby are and will be deemed to have occurred and be effective as provided in the Plan, and hereby are authorized and approved in all respect and for all purposes without any requirement of further action by stockholders or directors of the Debtors or the Reorganized Debtors.
12. Termination of Subordination. The provisions of the Plan relating to the distributions of New Common Stock to holders of Senior Debt Claims and Subordinated Claims reflect a compromise and settlement which, upon the Effective Date, shall be binding upon the Debtors, all creditors and all holders of Claims against or interests in the Debtors. On the Effective Date, all contractual, legal or equitable subordination rights that such holders may have with respect to any distribution to be made pursuant to the Plan shall be deemed to be waived, discharged and terminated, and all actions related to the enforcement of such subordination rights shall be permanently enjoined. Accordingly, distributions pursuant to the Plan to holders of Allowed Claims and Allowed interests shall not be subject to payment to a beneficiary of such terminated subordination rights, or to levy, garnishment, attachment or other legal process by a beneficiary of such terminated subordination rights.
D. Assumption and Rejection of Executory Contract and Unexpired Leases.
Subject only to the occurrence of the Effective Date and except as provided in the Plan, the assumption or rejection of all executory contracts and unexpired leases of the Debtors assumed or rejected in accordance with Section 9.1 of the Plan shall be, and hereby is, approved in all respects pursuant to Section 365(a) of the Bankruptcy Code. Proof of any Claim arising out of rejection of an executory contract or unexpired lease pursuant to Section 9.1 of the Plan shall be, and hereby is, required to be filed no later than thirty (30) days after entry of this Confirmation Order (the "Rejection Claim Bar Date"). Notice of the Rejection Claim Bar Date shall be provided by the Debtors to all non-Debtors parties to rejected executory contracts and rejected unexpired leases no later than three (3) Business Days after the Confirmation Date.
E. Substantial Consummation.
The substantial consummation of the Plan, within the meaning of Section 1127 of the Bankruptcy Code, shall be deemed to occur on the Effective Date.
F. Payment of Statutory Fees.
On or prior to the Effective Date, the Debtors shall pay all fees payable pursuant to 28 U.S.C. § 1930. After the Effective Date, the Reorganized Debtors shall continue to pay such fees until a final decree is entered in this Chapter 11 Case.
G. Reference to and Validity and Enforceability of Plan Provisions.
The failure to reference any particular provision of the Plan in this Confirmation Order shall have no effect on the binding effect, enforceability or legality of such provisions and such provisions shall have the same binding effect, enforceability or legality as every other provision of the Plan. Each term and provision of the Plan, as it may have been altered or interpreted by the Court, is valid and enforceable pursuant to its terms.
H. Creditors' Committee.
From the Confirmation Date up to and including the Effective Date, the members of the Creditors' Committee appointed pursuant to Section 1102 of the Bankruptcy Code shall continue to serve. On the Effective Date, the Creditors' Committee shall automatically be dissolved and the members thereof and the professionals retained by the Creditors' Committee in accordance with Section 1103 of the Bankruptcy Code shall be released and discharged from their respective fiduciary obligations, duties and responsibilities.
I. Retention of Jurisdiction.
This Court shall retain jurisdiction, to the maximum extent permitted by the Bankruptcy Code and other applicable law, of all matters arising out of, and related to, this Chapter 11 Case and the Plan pursuant to, and for the purposes of, Section 105(a) and 1142 of the Bankruptcy Code, including, without limitation:
(i) To hear and determine any and all matters relating to the assumption or rejection of executory contracts or unexpired leases and the allowance of Claims resulting therefrom.
(ii) To hear and determine any and all adversary proceedings, applications and contested matters.
(iii) To hear and determine any and all matters relating to the implementation or interpretation of any order, stipulation and/or agreed order entered by this Court in this Chapter 11 Case.
(iv) To ensure that distributions to holders of Allowed Claims and Allowed Equity Interests are accomplished as provided herein.
(v) To hear and determine any timely objections to Administrative Expense Claims or to Claims and Equity Interests, including, without limitation, any objections to the classification of any Claim or Equity Interest, and to allow or disallow any Disputed Claim or Disputed Equity Interest, in whole or in part.
(vi) To enter and implement such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, revoked, modified or vacated.
(vii) To issue such orders in and of execution of the Plan, to the extent authorized by Section 1142 of the Bankruptcy Code.
(viii) To consider any amendments to or modifications of the Plan, or to cure any defect or omission, or reconcile any inconsistency, in any order of the Bankruptcy Court, including, without limitation, the Confirmation Order.
(ix) To hear and determine all applications under Sections 330, 331 and 503(b) of the Bankruptcy Code for awards of compensation for services rendered and reimbursement of expenses incurred prior to the Confirmation Date.
(x) To hear and determine disputes arising in connection with the interpretation, implementation or enforcement of the Plan, the Confirmation Order, the Substantive Consolidation Order, any transactions or payments contemplated hereby or any agreement, instrument or other document governing or relating to any of the foregoing.
(xi) To hear and determine matters concerning state, local and federal taxes in accordance with Sections 346, 505 and 1146 of the Bankruptcy Code.
(xii) To hear and determine any other matter not inconsistent with the Bankruptcy Code.
(xiii) To hear and determine all disputes involving the existence, scope and nature of the discharges granted under Section 11.3 of the Plan.
(xiv) To issue injunctions and effect any other actions that may be necessary or desirable to restrain interference by any entity with the consummation or implementation of the Plan.
(xv) To recover all assets of the Debtors and property of the Debtors' estates, wherever located.
(xvi) To enter a final decree closing this Chapter 11 Case.
J. Distribution Record Date. The Distribution Record Date for Voting Securities shall be the Effective Date.
K. Exemption From Certain Taxes.
Pursuant to Section 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 interests; and (c) 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, 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 transfer tax, sales or use tax, or other similar tax. All recording and filing officers and clerks wherever located are hereby directed to accept for filing or recording, and to file or record immediately upon presentation thereof, any mortgage, deed of trust or other instrument of transfer described in (a), (b) or (c) above without payment of any stamp tax, recording tax, personal property transfer tax, sales or use tax, or similar tax. The Debtors are hereby authorized to deliver a notice or short form of this Confirmation Order to any state recording officer to the effect that such officer must accept for filing such security interests without charging any stamp tax, recording tax, personal property transfer tax, real estate transfer tax, sales or use tax or other similar tax.
L. Notice of Entry of the Confirmation Order.
1. Pursuant to Rules 2002 (0(7) and 3020(c) of the Bankruptcy Rules, the Debtors hereby are directed to serve a notice of entry of this Confirmation Order, substantially in the form attached hereto as Exhibit B (the "Confirmation Notice") no later than five (5) Business Days after the Effective Date, on all holders of Claims against or interests in the Debtors and other persons on whom the notice of the Confirmation Hearing was served.
2. The Confirmation Notice shall contain, among other things, notice of the following:
a. Except as specifically provided for in the Plan for (i) non-tax liabilities incurred in the ordinary course of business by the Debtors and (ii) post-petition tax claims, requests for payment of Administrative Claims must be filed and served on counsel for the Debtors and Reorganized Debtors, as the case may be, no later than sixty (60) days after the Effective Date. Holders of Administrative Claims (including, without limitation, professionals requesting compensation or reimbursement of expenses and holders of any Claims on account of federal, state or local taxes) that are required to file a request for payment of such Administrative Claims and that do not file such requests by the applicable bar date shall be forever barred from asserting such Claims against the Debtors, the Reorganized Debtors or any of their respective properties.
b. All professionals or other persons requesting compensation or reimbursement of expenses pursuant to Sections 327, 328, 330, 331, 503(b) or 1103 of the Bankruptcy Code for services rendered on or before the Confirmation Date (including, without limitation, any compensation requested by any professional or any other person for making a substantial contribution to this Chapter 11 Case) shall file and serve on the Reorganized Debtors, counsel for the Reorganized Debtors, counsel for the DIP Agent and Agent, and the United States Trustee an application for final allowance of compensation and reimbursement of expenses no later than (i) thirty (30) days after the Effective Date, or (ii) such later date, if any, as the Bankruptcy Court shall order upon application made prior to the end of such thirty-day period. Objections to applications of professionals or other persons for compensation or reimbursement of expenses must be filed and served on the requesting professionals or the other person, the Reorganized Debtors, counsel for the Reorganized Debtors, counsel for the DIP Agent and Agent and the Office of the United States Trustee on or before the later of (x) fortyfive (45) days after the Effective Date and (y) fifteen (15) days after such date as the Bankruptcy Court shall establish as the deadline for filing such applications.
c. The Debtors may set, and include in the Confirmation Notice, dates certain for the deadlines for filing requests for payment, applications for compensation or reimbursement and objections thereto (as described in subparagraphs "a" and "b" of this paragraph), based upon the Debtors' reasonable estimate of the timing of the occurrence of the Effective Date.
3. The Debtors are hereby directed to publish the Confirmation Notice once in The Richmond Times-Dispatch, The Roanoke Times, the Virginian-Pnot, the Staunton News Leader, the Harrisonburg Daily News Record, the Waynesboro News Virginian and the Wall Street Journal.
4. The Debtors are hereby directed to serve a copy of this Confirmation Order on each party that has filed a notice of appearance in this Chapter 11 Case and on each party that filed an objection or response to, or statement or comments regarding, the Plan, no later than ten (10) Business Days after the Confirmation Date.