2021-01-14_GENERAL DOCUMENTS - C1980004

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Case 120-bk-12043 Doc 573-2 Filed 01/13/21 Entered 01/13/21 110353 Desc Exhibit B -Declaration of Thomas Fairfield Page 12 of 17 Case 120-bk-12043 Doc 573-2 Filed 01/13/21 Entered 01/13/21 110353 Desc Exhibit B -Declaration of Thomas Fairfield Page 13 of 17 creditors, result in far greater Administrative Claims, and nullify the additional $100,000 in proceeds that should otherwise be received by the Estates pursuant to the Released Party Settlement. For the aforementioned reasons, I believe that the Plan satisfies the requirements of section 1129(a)(7) of the Bankruptcy Code. H. Compliance with Sections 1129(a)(8) and 1129(b) of the Bankruptcy Code. 32. I understand that (a) holders of Claims in Class 2 are deemed to accept the Plan, (b) holders of Claims in Classes 1, 3, 4, and 5 have voted to accept the Plan, and (c) holders of Equity Interests in Class 6 are deemed to rej ect the Plan. 33. It is my understanding that a chapter 11 plan may be confirmed notwithstanding the rej ection or deemed rejection by a class of claims or interests if the plan does not discriminate unfairly and is fair and equitable as to that class. It is my further understanding that (a) "fair and equitable" requirement is satisfied if the holders of claims and interests in the classes junior to the rejecting classes are not receiving any property under the plan, and (b) the plan does not discriminate unfairly if the Legal rights of a dissenting class are treated in a manner that is consistent with the treatment of other classes whose Legal rights are substantially similar to those of that class. 34. I believe the Plan's treatment of Class 6, which will not receive anything under the Plan, is proper because (a) there are no classes of Equity Interests junior to those in Class 6 and (b) no holder of a Claim senior to Class 6 will receive more than full value on account of its Claim. Further, the Equity Interests in the Debtors have no value. As such, I believe the Plan in fair and equitable with regards to Class 6. I. Compliance with Section 1129(a)(9) of the Bankruptcy Code. 35. Section 3.02 of the Plan provides for treatment of Allowed Administrative Claims. A holder of an Allowed Administrative Claim shall receive Cash equal to the unpaid portion of such Allowed Administrative Claim on or as soon as reasonably practicable after the Later of: (t) 11 4849-1-4934.1 Case 1:20-bk-12043 Doc 573-2 Filed 01/13/21 Entered 01/13/21 1103:53 Desc Exhibit B -Declaration of Thomas Fairfield Page 14 of 17 Liquidating Trustee is familiar with the relevant litigation claims in this Bank-ptcy Case. As such, the Liquidating Trustee is Likely to assess and commence actions that would maximize distributions under the Plan. Consequently, the Plan meets the feasibility requirement under the Plan. Therefore, I believe section 1129(a)(11) is satisfied. L. Compliance with Section 1129(a)(12) of the Bankruptcy Code. 40. The Plan provides that all fees payable on or before the Effective Date (i) pursuant to 28 U.S.C. § 1930, together with interest, Harry, pursuantto 31 U.S.C. § 3717, and (ii) the United States Trustee, shall be paid by the Debtors on or before the Effective Date. ALL such fees payable after the Effective Date shall be paid by the Liquidating Tmst until the Chapter 11 Cases are closed, converted, or dismissed. M. Sections 1129(a)(13), 1129(a)(14), 1129(a)(15), and 1129(a)(16) of the Bankruptcy Code Are Inapplicable. 41. With regards to these sections of the Banlmiptcy Code, the Debtors (a) have no pension or retiree benefits in place after the Debtors' 401(k) Plan was terminated, (b) are not subject to any domestic support obligation, (c) are not "individuals," and (d) were at all relevant times moneyed, business, or commercial corporations. Thus, I understand that sections 1129(a)(13), 1129(a)(14), 1129(a)(15), and 1129(a)(16) of the Bankruptcy Code do not apply to the Plan. N. The Plan Complies with Section 1129(c) of the Bankruptcy Code. 42. The Plan is the only chapter 11 plan that has been proposed in these Chapter 11 Cases, and thus, I understand that the requirement of 1129(c) has been met the Effective Date or (ii) the date on which such Administrative Expense becomes Allowed. Notwithstanding the foregoing, an Allowed Administrative Claim maybe paid on such other terms and conditions as are agreed to between the Liquidating Trust and the holder of such Allowed Administrative Claim. Accordingly, I believe that 1129(a)(9) is satisfied. 36. With respect to Allowed Priority Tax Claims, Section 3.02 of the Plan provides that, unless otherwise agreed, each Holder of an Allowed Priority Tax Claim shall receive payment in full, in Cash, through quarterly installment payments made by the Liquidating Trusteebeginning on June 30, 2021 and ending on the earlier of (t) payment in full of the Allowed Priority Tax Claim, (b) five years after the date of the order for relief under section 301, 302, or 303 of the Bankruptcy Code. J. Compliance with Section 1129(a)(10) of the Bankruptcy Code. 37. After my review of the Declaration of Emily Young of Epiq Corporate Restructuring LLCRegarding Voting and Tabulation ofBallots Cast on Debtors'First Amended Joint Plan of Orderly Liquidation, I conclude that a sufficient number and amount of ballots received have accepted the Plan, including Impaired Classes of Claims (Classes 1, 3, 4, and 5). Class 2, Secured Claims, is deemed to accept the Plan, and Class 6, Interests, is deemed to reject the Plan. 17, Compliance with Section 1129(a)(11) of the Bankruptcy Code. 38. I understand that, to satisfy the feasibility requirements of section I129(a)(11) of the Bankor ptcy Code, the Debtors must demonstrate that confirmation of the Plan is not likely to be followed by the liquidation, or the need for further reorganization, of the Debtors, unless such Liquidation or reorganization is proposed in the Plan. 39. The Plan contemplates the liquidation of the Debtors' remaining assets for distribution to creditors in accordance with the Plan and the Liquidating Trust Agreement. The 12 4849-1-4934.1 Case 120-bk-12043 Doc 573-2 Filed 01/13/21 Entered 01/13/21 110353 Desc Exhibit B -Declaration of Thomas Fairfield Page 15 of 17 O. The Plan Complies with Section 1129(d) of the Bankruptcy Code. 43. The principal purpose ofthe Plan is not for the avoidance of taxes or the application of section 5 of the Securities Act of 1933. Thus, I understand that the requirements of section 1129(d)(2) have been meet. P. The Plan Complies with Section 1129(e) of the Bankruptcy Code. 44. None of the Chapter 11 Cases are "small business case[s]," as that term is defined in the Bank-ptcy Code. Thus, I understand that the requirements of section 1129(e) have been meet. V. SUBSTANTIVE CONSOLIDATION 45. The Plan provides that a Confirmation Order shall constitute an order of the Bankruptcy Court approving the substantive consolidation of the Debtors and their Estates. I believe the Debtors satisfy the requirements for substantive consolidation. The facts and circumstances surrounding the historical business operations of the Debtors support substantive consolidation in these chapter 11 cases. Rhino GP LLC is the general partner of Rhino Resource Partners LP, which directly or indirectly owns all of the other filing entities. Rhino and its subsidiary Debtors had common officers and directors, shared key employees and outside professionals, including, but not limited to, Rhino employees who performed human resources, Legal, and risk management services for the benefit of all the Debtors and accounting firms, law firms and consultants who rendered services to all of the Debtors, and maintained common insurance policies which cover all the filing entitles. ALL the entities also shared physical space and office equipment 46. The Debtors' cash management system is effectively centralized and has been constructed to provide a substantially unified system for all of the Debtors; the system allows for an integrated method for accounting for revenues and expenses to be collected and paid. Generally, 13 14