2021-01-22_GENERAL DOCUMENTS - C2010088

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Case 1 20-bk-12043 Doc 573-2 Filed O1113/21 Entered O1113/21 11 03 53 Desc Case 1 20-bk-12043 Doc 573-2 Filed O1/13121 Entered 01/13/21 11 03 53 Desc Exhibit B -Declaration of Thomas Fairfield Page 12 of 17 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 me deemed to reject the Plan 33 It is my understanding that a chapter 11 plan may be confirmed notwithstanding the rejection or deemed rejection by a class of claims or interests tithe 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 ithe 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 simdarto those of that class 34 1 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 L 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 (i) 11 4049-1401-09341 Case 1 20-bk-12043 Doc 573-2 Filed 01/13/21 Entered 01/13/2111 03 53 Desc Exhibit B -Declaration of Thomas Fairfield Page 14 of 17 Liquidating Trustee is familiar with the relevant litigation claims in this Bankruptcy 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, if any, pursuant to 31 U.S C § 3717, and (it) 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 Trust unul 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 Bankruptcy 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, 1 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 1 I plan that has been proposed in these Chapter 11 Cases, and thus, I understand that the requirement of 1129(c) has been met FM the Effective Date or (it) the date on which such Administrative Expense becomes Allowed Notwithstanding the foregoing, an Allowed Administrative Claim may be 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 I I29(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 ao Allowed Priority Tax Claim shall receive payment in full, in Cash, through quarterly installment payments made by the Liquidating Trustee beginning on June 30, 2021 and ending on the earlier of (i) 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 Emi(v Young of Eprq Corporate Restructuring, LLC Regarding Voting and Tabulation of Ballots Cart on Debtors' First Amended Joint Plan of Orderh• 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 K. Compliance with Section 1129(a)(11) of the Bankruptcy Code. 38 1 understand that, to satisfy the feasibility requirements of section 1129(a)(11) of the Bankruptcy Code, the Debtors most demonstrate that confirmation of the Plan is not likely to be follow ed 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 4609-1401-09341 Case 1 20-bk-12043 Doc 573-2 Filed OIJ13121 Entered 01/13/21 11 03 53 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 oflhe Plan is not for the avoidance oftaxes 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 Bankruptcy 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 un 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 i l 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 firths, 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, 14 —s-1401-09a41 4949-14e149a4 1