2021-01-14_GENERAL DOCUMENTS - C1980004

• Permit No: C1980004
• IBM Index Class Name: General Documents
• Doc Date: 1/14/2021
• Doc Name Note: Case No. 20-12043 ‎(GRH)‎ Hopedale Mining LLC
• Doc Name: Bankruptcy Notice
• From: DRMS Website
• To: DRMS
• Permit Index Doc Type: General Correspondence
• Email Name: JDM
• Email Name: JRS
• Email Name: GRM
• Email Name: CMM
• Email Name: CAB
• Media Type: D
• Archive: No

Case 120-bk-12043 Doc 573 Filed 01/13/21 Entered 01/13/21 110353 Desc Main
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TOTAL BALLOTS COUNTED
ACCEPT
REJECT
Class
Voting
VOTING CLASS
AMOUNT
NUMBER
AMOUNT
NUMBER
Result
Class
$13,775.80
3
$2,762.36
1
Other Priority Claims
83.30 %
75.00 %
16.70 %
25.00 %
Accept
Class
$1,365,500.00
1
$0.00
0
Accept
DIP Lender Claims
100.00 %
100.00 %
0.00 %
0.00
Class
$18,118,585.10
1
$0.00
0
Accept
Prepetition Lender
Claims
100.00 %
100.00 %
0.00 %
0.00
Class
$14,078,182.01
76
$197,918.38
11
Accept
General Unsecured
Claims
98.61 %
87.36 %
1.39 %
12.64
(See Young Declaration, attached hereto as Exhibit A.)
The Combined Hearing Order established January 5, 2021 at 4:00 p.m. (Eastern time) as
the deadline for objections the adequacy of the Disclosure Statement or confirmation of the Plan.
II. THE DISCLOSURE STATEMENT AND SOLICITATION PROCEDURES
SHOULD BE APPROVED UNDER SECTIONS 1125(B) AND 1125(A) OF THE
BANKRUPTCY CODE
As discussed above, on December 1, 2020, Solicitation Packages were distributed to all
Holders of Claims entitled to vote on the Plan. The Disclosure Statement provides extensive
information regarding, among other things, the Plan, events preceding the commencement of these
Chapter 11 Cases, claims against the Debtors' estates, estimated recoveries for creditors under the
Plan, risk factors affecting the Plan, and federal tax law consequences of the Plan. In addition,
IN
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This Court has broad discretion to determine whether a disclosure statement contains
"adequate information" based on the facts of this case. In re Cajun Elec. Power Coop., 150 E3d
503, 518 (5th Cit. 1998) (citing the legislative history to § 1125 in holding that what constitutes
"adequate information" will be governed by the circumstances of each case). Despite Congress'
directive in 11 U.S.C. § 1125(b) that the Disclosure Statement is sufficient without a valuation of
assets, including litigation claims, the Joint Disclosure Statement contains a projected recovery
based on a low and high in. on litigation claims. In the case of a liquidating plan, this
information is more than adequate.
The Disclosure Statement contains more than "adequate information," as defined in §
1125(a)(1) of the Bankruptcy Code. The Disclosure Statement is a 65-page document that
discusses, among other things: (a) the terms ofthe Plan; (b) voting instructions and information
about the confirmation hearing; (c) the Debtors' businesses, assets and significant debt obligations;
(d) the events leading to the Debtors' Chapter 11 Cases; (e) events during the Debtors' Chapter 11
Cases; (f) the Proponents' satisfaction ofthe standards for confirming a plan, including the "best
interests of creditors" and "feasibility" tests; (g) certain risk factors to be considered; and (h) the
federal income tax consequences attendant to confirmation and the distributions made under the
Plan.
Moreover, the Proponents have complied with all other applicable provisions of the
Bankruptcy Code, the Federal Rules of Bankruptcy Procedure including Bankruptcy Rules 3017
and 3018, and all applicable nonbankruptcy laws, rules or regulations with respect to disclosure
and solicitation of acceptances ofthe Plan. Having satisfied the requirements unposed by sections
1126(b) and 1129(a)(1) ofthe Bankruptcy Code governing prepetition disclosure and solicitation,
the Proponents submit that the Disclosure Statement and solicitation procedures should be
approved.
creditors entitled to vote were provided with a clear description of the Debtors' liquidation, the
liquidating trustee, risks involved in the plan process, and all legal aspects of the Plan.
Pursuant to section 1125 ofthe Bankruptcy Code, the proponent of a chapter 11 plan must
provide holders of impaired claims and interests entitled to vote on a plan with "adequate
information" regarding the plan. Section 1125(a)(1) of the Bankruptcy Code states, in relevant
part:
[A]dequate information" means information of a kind, and in sufficient detail, as
far as is reasonably practicable in light ofthe nature and history ofthe debtor and
the condition of the debtor's books and records, including a discussion of the
potential material Federal tax consequences ofthe plan to the debtor, any successor
to the debtor, and a hypothetical investor typical ofthe holders of claims or interest
in the case, that would enable such a hypothetical investor of the relevant class to
make an informed judgment about the plan
11 U.S.C. § 1125(a)(1). "Adequate information" has been interpreted as information that is
"reasonably practicable" to permit an "informed judgment" by creditors and interest holders, if
applicable, to vote on a chapter 11 plan. See Nestle WatersN. Am. Inc. v. Mountain Glacier LLC
(In re Mountain Glacier LLC), 877 E3d 246,248 (6th Cit. 2017). The adequacy of information in
a disclosure statement is determined on a case -by -case basis. See In re A. C. Williams Co., 25 B.R.
173, 176 (Banta. N.D. Ohio 1982) ("What constitutes adequate information under [section
1125(a)(1)] must be determined on a case -to -case basis under flexible standards."); see also H.R.
Rep. No. 95-595, at 409 (1977) ("Precisely what constitutes adequate information in any particular
instance will develop on a case -by -case basis. Courts will take a practical approach as to what is
necessary under the circumstances of each case."). Further, in a liquidating case such as this one,
the definition of "adequate information" accommodates the possibility that adequate information
about a liquidation plan may be different than such information about a proposed restructuring of
the business. In re Michelson, 141 B.R. 715, 720, n.13 (Banta. E.D. Cal. 1992).
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III. MODIFICATIONS TO THE PLAN
The Proponents intend to make certain nonmaterial and/or nonadverse modifications (the
"Modifications") to the Plan as further described in this section.
Section 1127(a) of the Bankruptcy Code provides:
The proponent of a plan may modify such plan at any time before
confirmation, but may not modify such plan so that such plan as modified
fails to meet the requirements of sections 1122 and 1123 of this title. After
the proponent of a plan files a modification of such plan with the court, the
plan as modified becomes the plan.
11 U.S.C. § I127(a). Section 1127(d) provides:
Any holder of a claim or interest that has accepted or rejected
a plan is deemed to have accepted or rejected, as the case may
be, such plan as modified, unless, within the time fixed by the
court, such holder changes such holder's previous acceptance
or rejection.
11 U.S.C. §1127(d). The Bankruptcy Rule designed to implement section 1127(d), in turn,
provides in relevant part:
In a ... chapter 11 case, after a plan has been accepted and before its confirmation,
the proponent may file a modification ofthe plan. If the court finds after hearing on
notice lathe trustee, any committee appointed under the Code, and any other entity
designated by the court that the proposed modification does not adversely change
the treatment ofthe claim of any creditor or the interest of any equity security holder
who has not accepted in writing the modification, it shall be deemed accepted by
all creditors and equity security holders who have previously accepted the plan
Fed. R. Banta. P. 3019(a). None of the Modifications to the Plan constitutes an "adverse change,"
within the meaning of Bankruptcy Rule 3019, as to any of the affected Classes.
Section 1127 of the Bankruptcy Code gives a plan proponent the right to modify the plan
"at any time" before confirmation. In this case, the Modifications are minor and do not require re -
solicitation or preclude immediate confirmation of the Plan. On the basis of the foregoing and
related cases, the Court can and should conclude that the impact of the proposed Modifications on
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