Case 1 20-bk-12043 Doc 573 Filed 01/13/21 Entered 01/13/21 11.03 53 Desc Main Case 1 20-bk-12043 Doc 573 Filed 01/13/21 Entered 01/13/21 11 03 53 Desc Main
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<br />TOTAL BALLOTS COUNTED
<br />ACCEPT
<br />REJECT
<br />Class
<br />VOTING CLASS
<br />AMOUNT
<br />NUMBER
<br />AMOUNT
<br />NUMBER
<br />Rs�
<br />Class 1
<br />$13,775 80
<br />3
<br />$2,762 36
<br />1
<br />Other Priority Claims
<br />8330%
<br />75.00 %
<br />16.70 %
<br />25.00 %
<br />Accept
<br />Class3
<br />$1,365,50000
<br />1
<br />$000
<br />0
<br />Accept
<br />DIP Lender Claims
<br />100.00%
<br />100 00 %
<br />0.00 %
<br />0.00 %
<br />Class
<br />$18,118,58510
<br />1
<br />$000
<br />0
<br />Accept
<br />Prepetition Lender
<br />Clams
<br />100.00%
<br />100.00%
<br />0 00%
<br />0.00%
<br />Classy
<br />$14,078,18201
<br />76
<br />$197,91838
<br />Il
<br />Accept
<br />General Unsecured
<br />Claims
<br />98.61%
<br />8736%
<br />139%
<br />12.64%
<br />(See Young Declaration, attached hereto as Exhibit A )
<br />The Combined Hearing Order established January 5, 2021 at 4 00 p in (Eastern time) as
<br />the deadline for objections the adequacy of the Disclosure Statement or confirmation of the Plan
<br />IL THE DISCLOSURE STATEMENT AND SOLICITATION PROCEDURES
<br />SHOULD BE APPROVED UNDER SECTIONS 1125(B) AND 1125(A) OF THE
<br />BANKRUPTCY CODE
<br />As discussed above, on December 1, 2020, Solicitation Packages were distributed to all
<br />Holders of Claims entitled to vote on the Plan The Disclosure Statement provides extensive
<br />information regarding, among other things, the Plan, events preceding the commencement ofthese
<br />Chapter 11 Cases, claims against the Debtors' estates, estimated recoveries for creditors under the
<br />Plan, risk factors affecting the Plan, and federal tax law consequences of the Plan In addition,
<br />E
<br />creditors entitled to vote were provided with a clear description of the Debtors' liquidation, the
<br />liquidating trustee, risks my olved in the plan process, and all legal aspects of the Plan
<br />Pursuant to section 1125 of the Bankruptcy Code, the proponent of a chapter 11 plan must
<br />provide holders of impaired claims and interests entitled to vote on a plan with "adequate
<br />information" regarding the plan Section I I25(a)(1) of the Bankruptcy Code states, in relevant
<br />part
<br />[A]dequate information" means information of a kind, and in sufficient detail, as
<br />far as is reasonably practicable in light of the nature and history of the debtor and
<br />the condition of the debtor's books and records, including a discussion of the
<br />potential material Federal tax consequences ofthe plan to the debtor, any successor
<br />to the debtor, and a hypothetical investor typical of the holders of claims or interest
<br />in the case, that would enable such a hypothetical investor of the relevant class to
<br />make an informed judgment about the plan
<br />11 U S C § 1125(a)(1) "Adequate information" has been interpreted as information that is
<br />"reasonably practicable" to permit an "informed judgment" by creditors and interest holders, if
<br />applicable, to vote on a chapter I I plan See Nestle Waters N Am Inc v Mauntam Glacier LLC
<br />(In re Mountain Glacier LLC), 877 F 3d 246, 248 (6th Cir 2017) The adequacy of information in
<br />a disclosure statement is determined on a case -by -case basis See In m A C Ili iDmms Cc , 25 B R
<br />173, 176 (Bankr NO Ohio 1982) ("What constitutes adequate information under [section
<br />1125(a)(1)] must be determined on a case -to -case basis under flexible standards "), see also H R
<br />Rep No 95-595, at 409 (1977) ("Precisely what constitutes adequate information many particular
<br />instance will develop on a case -by -case basis Courts will take a practical approach as to what is
<br />necessary under the circumstances of each case ") Further, in a liquidating case such as this one,
<br />the definition of "adequate information" accommodates the possibility that adequate information
<br />about a liquidation plan may be different than such information about a proposed restructuring of
<br />the business In re Michelson, 141 B R 715, 720, n 13 (Bankr E D Cal 1992)
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<br />This Court has broad discretion to determine whether a disclosure statement contains
<br />III. MODIFICATIONS TO THE PLAN
<br />"adequate information" based on the facts of this case In re Cajun Elec Paiver Coop , 150 F 3d
<br />The Proponents intend to make certain nonmaterial and/or nonadverse modifications (the
<br />503, 518 (5th Cir 1998) (citing the legislative history to § 1125 in holding that what constitutes
<br />"Modifications") to the Plan as further described in this section
<br />"adequate information" will be governed by the circumstances of each case) Despite Congress'
<br />Section I I27(a) of the Bankruptcy Code provides
<br />directive in l I U S C § 1125(b) that the Disclosure Statement is sufficient without a valuation of
<br />The proponent of a plan may modify such plan at any time before
<br />confirmation, but may not modify such plan so that such plan as modified
<br />assets, including litigation claims, the Joint Disclosure Statement contains a projected recov cry
<br />fails to meet the requirements of sections 1122 and 1123 of this title After
<br />the proponent of a plan files a modification of such plan with the court, the
<br />based on a low and high return on litigation claims In the case of a liquidating plan, this
<br />plan as modified becomes the plan
<br />information is more than adequate
<br />11 U S C §1127(a) Section 1127(d) provides
<br />The Disclosure Statement contains more than "adequate information," as defined in §
<br />Any holder of a claim or interest that has accepted or rejected
<br />a plan is deemed to have accepted or rejected, as the case may
<br />1125(a)(1) of the Bankruptcy Code The Disclosure Statement is a 65-page document that
<br />be, such plan as modified, unless, within the time fixed by the
<br />court, such holder changes such holder's previous acceptance
<br />discusses, among other things (a) the terms of the Plan, (b) voting instructions and information
<br />or rejection
<br />about the confirmation hearing, (c) the Debtors' businesses, assets and significant debt obligations,
<br />11 U S C §1127(d) The Bankruptcy Rule designed to implement section 1127(d), in turn,
<br />(d) the events leading to the Debtors' Chapter 11 Cases, (e) events during the Debtors' Chapter I
<br />provides in relevant part
<br />Cases, (f) the Proponents' satisfaction of the standards for confirming a plan, including the "best
<br />In a chapter 11 case, after a plan has been accepted and before its confirmation,
<br />the proponent may file a modification of the plan If the court finds after hearing on
<br />interests of creditors" and "feasibility" tests, (g) certain risk factors to be considered, and (b) the
<br />notice to the trustee, any committee appointed under the Code, and any other entity
<br />designated by the court that the proposed modification does not adversely change
<br />federal income tax consequences attendant to confirmation and the distributions made under the
<br />the treatment of the claim of any creditor or the interest of any equity security holder
<br />who has not accepted in writing the modification, it shall be deemed accepted by
<br />Plan
<br />all creditors and equity security holders who have previously accepted the plan
<br />Moreover, the Proponents have complied with all other applicable provisions of the
<br />Fed R Banks. P 3019(a) None of the Modifications to the Plan constitutes an "adverse change,"
<br />Bankruptcy Code, the Federal Rules of Bankruptcy Procedure including Bankruptcy Rules 3017
<br />within the meaning of Bankruptcy Rule 3019, as to any of the affected Classes
<br />and 3018, and all applicable nonbanlauptcy laws, riles or regulations w ith respect to disclosure
<br />Section 1127 of the Bankruptcy Code gives a plan proponent the right to modify the plan
<br />and solicitation of acceptances of the Plan Having satisfied the requirements imposed by sections
<br />"at any time" before confirmation In this case, the Modifications are minor and do not require re-
<br />1126(b) and I I29(a)(1) of the Bankruptcy Code governing prepetition disclosure and solicitation,
<br />solicitation or preclude immediate confirmation of the Plan On the basis of the foregoing and
<br />the Proponents submit that the Disclosure Statement and solicitation procedures should be
<br />related cases, the Court can and should conclude that the impact of the proposed Modifications on
<br />approved
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