EXHIBIT 10.13.3
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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Chapter 11
In re: :
Case No. 01-16345 (BRL)
LODGIAN, INC., et al., :
(Jointly Administered)
Debtors. :
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FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER UNDER 11 U.S.C. SS. 1129(A) AND (B) AND
FED. R. BANKR. P. 3020 CONFIRMING JOINT PLAN OF
REORGANIZATION OF IMPAC HOTELS II, L.L.C. AND IMPAC
HOTELS III, L.L.C., TOGETHER WITH THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
INTRODUCTION
Impac Hotels II, L.L.C. and Impac Hotels III, L.L.C., as debtors and
debtors-in-possession (collectively, the "Impac Debtors")(1) in the
above-captioned chapter 11 cases (the "Chapter 11 Cases") and the Official
Committee of Unsecured Creditors (the "Committee" and, together with the Impac
Debtors, the "Plan Proponents"), have proposed the Joint Plan Of Reorganization
Of Impac Hotels II, L.L.C. And Impac Hotels III, L.L.C., Together With The
Official Committee Of Unsecured Creditors Under Chapter 11 Of The Bankruptcy
Code, dated as of March 3, 2003, a true and correct copy of which is annexed
hereto as Exhibit A (such as has been amended or modified prior to the entry of
this Confirmation Order, the "Impac Plan").(2)
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(1) From time to time during the Chapter 11 Cases, the Impac Debtors have
been referred to as the "CCA Debtors." These terms are synonymous for
all purposes.
(2) Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to such terms in the Plan and/or the
Disclosure Statement Approval Order (as is defined below). Any
capitalized term not defined in the Plan, the Disclosure Statement
Approval Order, or this Confirmation Order, but used in title 11 of the
United States Code, as amended (the "Bankruptcy Code") or the Federal
Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), shall have the
meaning ascribed to that term in the Bankruptcy Code or the Bankruptcy
Rules.
DISCLOSURE STATEMENT AND SOLICITATION
After a hearing held on March 20, 2003 (the "Disclosure Statement
Hearing"), the Disclosure Statement in support of the Impac Plan, dated as of
March 3, 2003 (as transmitted to parties in interest, the "Disclosure
Statement"), was approved by an order of this Court as containing "adequate
information" pursuant to section 1125 of the Bankruptcy Code (the "Disclosure
Statement Approval Order").
On or before March 25, 2003, the Impac Debtors having mailed or caused
to be mailed, by first class mail, the solicitation packages (the "Solicitation
Packages") containing copies of, inter alia, (1) the Disclosure Statement
Approval Order, (2) the Disclosure Statement Approval Notice, setting forth,
among other things, (a) notice of entry of the Disclosure Statement Approval
Order, (b) the Voting Deadline for the submission of Ballots to accept or reject
the Impac Plan, (c) the time fixed for filing objections to confirmation of the
Impac Plan, and (d) the time, date and place of the Confirmation Hearing, (3) a
Ballot or Notice of Non-Voting Status, as applicable, and (4) the approved form
of the Disclosure Statement (together with the Impac Plan annexed thereto as
Exhibit B) to (a) the parties in interest listed on the Master Service List (as
defined in this Court's Order Establishing Notice Procedures, dated December 21,
2001), (b) attorneys for the Committee, (c) the U.S. Trustee, (d) all persons or
entities that filed proofs of claim on or before the date of the Disclosure
Statement Notice, except to the extent that a claim was paid pursuant to, or
expunged by, prior order of this Court, (e) all persons or entities listed in
the Debtors' Schedules as holding liquidated, noncontingent, and undisputed
claims in an amount greater than zero, (f) all other parties in interest that
filed a request for notice pursuant to Bankruptcy Rule 2002 in the Debtors'
Chapter 11 Cases, (g) the Securities and Exchange Commission, (h) the Internal
Revenue Service, (i) the Department of Justice, (j) the Pension Benefit Guaranty
Corporation, (k) any entity that had filed with the Court
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a notice of transfer of a claim under Bankruptcy Rule 300l(e) prior to date of
the Disclosure Statement Notice, and (1) any other known holders of claims
against the Debtors.
The Impac Debtors filed the certificates of publication of Bridgette
Tryoski, Advertising Clerk of the Publisher of The Wall Street Journal sworn to
on March 5, 2003; Arlene Moller, Principal Clerk of the Publisher of The New
York Times, sworn to on March 5, 2003; and Cheryl Rothlein, Principal Clerk of
USA Today, sworn to on March 5, 2003, attesting to the fact that notice of the
Confirmation Hearing was published on March 5, 2003 in accordance with this
Court's scheduling order dated March 3, 2003.
The Impac Debtors filed the Declaration of Debra L. Reyes Certifying
Voting On and Tabulation Of Ballots Accepting and Rejecting the Impac Plan,
sworn to on April 17, 2003 (the "Reyes Certification") attesting to and
certifying the method and results of the ballot tabulation for the Classes of
Claims entitled to vote to accept or reject the Impac Plan (the "Voting
Report").
PLAN CONFIRMATION
No objections or purported objections to confirmation of the Impac Plan
were timely filed and served. If any objections remain, they are overruled on
the merits pursuant to this Confirmation Order.
The Debtors filed (i) a memorandum of law in support of confirmation of
the Impac Plan, dated April 21, 2003 (the "Confirmation Memorandum"), (ii) the
Plan Supplement, dated April 17, 2003 (as may be amended, the "Plan
Supplement"); and (iii) the Declaration of Manuel Artime in Support of
Confirmation of the Impac Plan, dated April 17, 2003 (the "Artime Affidavit,"
together with the Reyes Certification, the "Confirmation Affidavits").
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The provisions of the Impac Plan are amended to reflect any amendments
to the Impac Plan as may be filed with this Court and by the Plan Proponents on
the record at the Confirmation Hearing.
The Impac Plan is a separate plan for each Impac Debtor's estate.
Accordingly, the provisions of the Impac Plan, including without limitation the
definitions and distributions to creditors shall apply to the respective assets
of, claims against, and equity interests in, such Impac Debtor's separate
estate.
Based upon the Bankruptcy Court's review of the Disclosure Statement,
the Impac Plan, the Plan Supplement, the Voting Report, the Confirmation
Affidavits, and the Confirmation Memorandum; and upon (a) all of the evidence
proffered or adduced at, memoranda and objections filed in connection with, and
arguments of counsel made at, the Confirmation Hearing, and (b) the entire
record of these Chapter 11 Cases; and after due deliberation thereon and good
cause appearing therefor,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
IT IS HEREBY FOUND AND DETERMINED THAT:(3)
(A) Exclusive Jurisdiction; Venue; Core Proceeding (28 U.S.C.
ss.ss. 157(b)(2) 1334(a)). This Bankruptcy Court has jurisdiction over these
cases pursuant to sections 157 and 1334 of title 28 of the United States Code.
Venue is proper pursuant to sections 1408 and 1409 of title 28 of the United
States Code. Confirmation of the Impac Plan is a core proceeding pursuant to 28
U.S.C. ss. 157(b)(2)(L), and this Bankruptcy Court has exclusive jurisdiction to
determine whether the Impac Plan complies with the applicable provisions of the
Bankruptcy Code and should be confirmed.
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(3) Pursuant to Bankruptcy Rule 7052, findings of fact shall be construed
as conclusions of law and conclusions of law shall be construed as
findings of fact when appropriate.
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(B) Judicial Notice. This Bankruptcy Court takes judicial notice
of the docket in the Lodgian, Inc., et al Chapter 11 Cases maintained by the
Clerk of the Bankruptcy Court and/or its duly-appointed agent, 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 Bankruptcy Court during the pendency of the Chapter 11 Cases of the
Impac Debtors and the Confirmed Debtors, including, but not limited to, the
hearings to consider the adequacy of the Disclosure Statement.
(C) Burden of Proof. The Impac Debtors have the burden of proving
the elements of sections 1129(a) and (b) of the Bankruptcy Code by a
preponderance of evidence.
(D) Transmittal and Mailing of Materials; Notice. The Disclosure
Statement, the Impac Plan, the Ballots or Notice of Non-Voting Status, as the
case may be, the Disclosure Statement Approval Order, and the Disclosure
Statement Approval Notice, which were transmitted and served as set forth in the
Reyes Certification, shall be deemed to have been transmitted and served in
compliance with the Disclosure Statement Approval Order and the Bankruptcy
Rules, and such transmittal and service were adequate and sufficient, and no
other or further notice is or shall be required.
(E) Voting. Votes to accept and reject the Impac Plan have been
solicited and tabulated fairly, in good faith, and in a manner consistent with
the Bankruptcy Code, the Bankruptcy Rules, the Disclosure Statement Approval
Order, and industry practice.
(F) Classes deemed to have accepted the Impac Plan. Classes 1 -A,
2 and 9 are unimpaired and are deemed to have accepted the Impac Plan pursuant
to section 1126(f) of the Bankruptcy Code.
(G) Class deemed to have rejected the Impac Plan. Class 11 will
not receive any property under the Impac Plan, and therefore is deemed to have
rejected the Impac Plan
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pursuant to section 1126(g) of the Bankruptcy Code. However, there are no known
members of Class 11.
(H) Plan Compliance with Bankruptcy Code (11 U.S.C. ss.
1129(a)(1)). The Impac Plan complies with the applicable provisions of the
Bankruptcy Code, thereby satisfying section 1129(a)(l) of the Bankruptcy Code.
(1) Proper Classification (11 U.S.C. ss.ss. 1122,
1123(a)(l)).(4) In addition to the Administrative Expense Claims
(consisting of Claims under the headings Compensation and Reimbursement
Claims and Priority Tax Claims) listed in Section 2 of the Impac Plan,
which need not be designated, Section 3 of the Impac Plan designates
six Classes of Claims against and Equity Interests in each Impac
Debtor. Each Secured Claim and General Unsecured Claim shall be deemed
to be separately classified in a subclass of Classes 1 and 3,
respectively, and shall have all rights associated with separate
classification under the Bankruptcy Code. The Claims and Equity
Interests placed in each Class are substantially similar to other
Claims and Equity Interests, as the case may be, in each such Class.
Valid business, factual, and legal reasons exist for separately
classifying the various Classes of Claims and Equity Interests created
under the Impac Plan, and such Classes do not unfairly discriminate
between holders of Claims and Equity Interests. The Impac Plan
satisfies sections 1122 and 1123(a)(l) of the Bankruptcy Code.
(2) Specified Unimpaired Classes (11 U.S.C. ss. 1123(a)
(2)) Section 4 of the Impac Plan specifies that Classes 1-A, 2 and 9
are unimpaired under the Impac Plan, thereby satisfying section 1123(a)
(2) of the Bankruptcy Code.
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(4) The Impac Plan is based upon the confirmed Joint Plan of Lodgian, Inc.,
et al., and provisions that do not apply to the Impac Debtors were
intentionally left blank. Consequently, the numbering of the classes in
the Impac Plan is not consecutive.
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(3) Specified Treatment of Impaired Classes (11 U.S.C.
s 1123(a)(3)). Section 4 of the Impac Plan designates Classes 1-B, 3, 5
and 11 as impaired and specifies the treatment of Claims in those
Classes, thereby satisfying section 1123(a)(3) of the Bankruptcy Code.
(4) No Discrimination (11 U.S.C. ss. 1123(a)(4)). The
Impac Plan provides for the same treatment by the Impac Debtors for
each Claim or Equity Interest in each respective Class unless the
holder of a particular Claim or Equity Interest has agreed to a less
favorable treatment of such Claim or Equity Interest, thereby
satisfying section 1123(a)(4) of the Bankruptcy Code.
(5) Implementation of Plan (11 U.S.C. ss. 1123(a)(5)).
The Impac Plan provides adequate and proper means for the Impac Plan's
implementation, including, among other things, (i) the Exit Financing
Agreements; (ii) the waiver of subordination rights; (iii) the
selection of officers for the Reorganized Impac Debtors, as disclosed
on Lodgian Inc.'s ("Lodgian") website; (iv) the Amended Organizational
Documents, if applicable; (v) the issuance of Class 1-B notes and the
related financing documents; (vi) the transfer of assets; and (vii) the
establishment of new entities.
(6) Non-Voting Equity Securities (11 U.S.C. ss.
1123(a)(6)). Section 6.10 of the Impac Plan provides that the Amended
Organization Documents, if applicable, shall prohibit the issuance of
nonvoting equity securities. Thus, the requirements of section
1123(a)(6) of the Bankruptcy Code are satisfied.
(7) Designation of Officers (11 U.S.C. ss. 1123(a)(7)).
Section 6.9 of the Impac Plan provides that the current officers of the
Impac Debtors shall continue to serve as the officers of the
Reorganized Impac Debtors consistent with the interests of
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creditors, equity security holders, and public policy in accordance
with section 1123(a)(7).
(8) Additional Plan Provisions (11 U.S.C. ss. 1123(b)).
The Impac Plan's provisions are appropriate and not inconsistent with
the applicable provisions of the Bankruptcy Code.
(9) Bankruptcy Rule 3016(a). The Impac Plan is dated and
identifies the entities submitting it as the Plan Proponents, thereby
satisfying Bankruptcy Rule 3016(a).
(I) Impac Debtors' Compliance with Bankruptcy Code (11
U.S.C. ss. 1129(a)(2)). The Impac Debtors have complied with the applicable
provisions of the Bankruptcy Code, thereby satisfying section 1129(a)(2) of the
Bankruptcy Code. Specifically:
(i) The Impac Debtors are proper debtors under section
109 of the Bankruptcy Code.
(ii) The Impac Debtors have complied with applicable
provisions of the Bankruptcy Code, except as otherwise provided or
permitted by orders of the Bankruptcy Court.
(iii) The Impac Debtors have complied with the applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, and the
Disclosure Statement Approval Order in transmitting the Impac Plan, the
Disclosure Statement, the Ballots or Notices of Non-Voting Status, as
the case may be, and related documents in soliciting and tabulating
votes on the Impac Plan.
(J) Plan Proposed in Good Faith (11 U.S.C. ss. 1129(a)(3)). The
Plan Proponents have proposed the Impac Plan in good faith and not by any means
forbidden by law, thereby satisfying section 1129(a)(3) of the Bankruptcy Code.
The Plan Proponents' good faith
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is evident from the facts and records of these Chapter 11 Cases, the Disclosure
Statement and the hearings thereon, and the record of the Confirmation Hearing
and other proceedings held in these Chapter 11 Cases. The Impac Plan was
proposed with the legitimate and honest purpose of maximizing the value of the
Impac Debtors' estates and to effectuate a successful reorganization of the
Impac Debtors.
(K) Payments for Services or Costs and Expenses (11 U.S.C. ss.
1129(a)(4)). Any payment made or to be made by any of the Impac Debtors for
services or for costs and expenses in or in connection with the Chapter 11
Cases, or in connection with the Impac Plan and incident to the Chapter 11
Cases, has been approved by, or is subject to the approval of, the Bankruptcy
Court as reasonable, thereby satisfying section 1129(a)(4) of the Bankruptcy
Code.
(L) Officers and Insiders (11 U.S.C. ss. 1129(a)(5)). The Plan
Proponents have complied with section 1129(a)(5) of the Bankruptcy Code. The
identity and affiliations of the persons who serve and shall continue to serve
as officers of the Reorganized Impac Debtors after confirmation of the Impac
Plan have been fully disclosed in the Plan Supplement, and the appointment to,
or continuance in, such offices of such persons is consistent with the interests
of holders of Claims against and Equity Interests in the Impac Debtors and with
public policy. The identity of any insider that will be employed or retained by
the Reorganized Impac Debtors and the nature of such insider's compensation have
also been fully disclosed in the Plan Supplement.
(M) No Rate Changes (1l U.S.C. ss. 1129(a)(6)). After confirmation
of the Impac Plan, the Impac Debtors' businesses will not involve rates
established or approved by, or otherwise subject to, any governmental regulatory
commission. Thus, section 1129(a)(6) of the Bankruptcy Code is not applicable in
these Chapter 11 Cases.
(N) Best Interests of Creditors (11 U.S.C. ss. 1129(a)(7)). The Impac
Plan satisfies section 1129(a)(7) of the Bankruptcy Code. The liquidation
analysis provided in the
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Disclosure Statement, the Plan Supplement, the Confirmation Affidavits, and
other evidence proffered or adduced at or prior to the Confirmation Hearing (a)
are persuasive and credible, (b) have not been controverted by other evidence,
and (c) establish that each holder of an impaired Claim or Equity Interest
either has accepted the Impac Plan or will receive or retain under the Impac
Plan, on account of such Claim or Equity Interest, property of a value, as of
the Effective Date, that is not less than the amount that such holder would
receive or retain if the Impac Debtors were liquidated under chapter 7 of the
Bankruptcy Code on such date.
(O) Acceptance of Certain Classes (11 U.S.C. ss. 1129(a)(8)).
Classes 1 -A, 2 and 9 of the Impac Plan are Classes of unimpaired Claims and
Equity Interest that are conclusively presumed to have accepted the Impac Plan
under section 1126(f) of the Bankruptcy Code and the accepting Classes as set
forth in the Reyes Certification have voted to accept the Impac Plan in
accordance with sections 1126(c) and (d) of the Bankruptcy Code (the "Accepting
Classes") and therefore satisfy section 1129(a)(8) of the Bankruptcy Code.
Though section 1129(a)(8) does not appear to be satisfied with respect to Class
11, which will not receive any property under the Impac Plan and, was therefore
deemed to have rejected the Impac Plan pursuant to section 1126(g) of the
Bankruptcy Code, there are no known members of Class 11. Should any Class of
Claims reject the Impac Plan, the Impac Plan remains confirmable because it
satisfies section 1129(b) of the Bankruptcy Code with respect to any rejecting
Classes.
(P) Treatment of Administrative and Tax Claims (11 U.S.C. ss.
1129(a)(9)). The treatment of Administrative Expense Claims and Priority Non-Tax
Claims pursuant to Sections 2.1 and 4.2 of the Impac Plan satisfies the
requirements of sections 1129(a)(9)(A) and (B) of the Bankruptcy Code, and the
treatment of Priority Tax Claims pursuant to Section 2.3 of the Impac Plan
satisfies the requirements of section 1129(a)(9)(C) of the Bankruptcy Code.
Allowed Priority Tax Claims only constitute unsecured Claims against the
applicable Impac
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Debtor's estate and the holder of such Allowed Priority Tax Claim shall not have
any lien securing such Claim or otherwise be permitted to assert any other
encumbrance against property of the applicable Debtor relating to such Claim.
Except to the extent that a holder of an Allowed Priority Tax Claim and the
applicable Impac Debtor agree to a different treatment, each holder of an
Allowed Priority Tax Claim shall receive, in full satisfaction of such Claim,
payment in Cash of the Allowed Amount of such Claim over a period not exceeding
six (6) years after the date of assessment of such Claim, with interest at a
rate equal to the Federal Judgment Rate as of the Confirmation Date, payable
monthly, in periodic payments having a value, as of the Effective Date, equal to
the amount of such Allowed Priority Tax Claim. The treatment of Allowed Priority
Tax Claims will be memorialized in a tax note (the "Tax Note"), substantially in
the form annexed hereto as Exhibit B, which shall be given to each holder of an
Allowed Priority Tax Claim.
(Q) Treatment of Secured Tax Claims. In connection with any
Allowed Secured Claim relating to a tax claim that is not an Allowed Priority
Tax Claim and which is treated as a Secured Claim under Class 1-B of the Impac
Plan, except to the extent that a holder of such an Allowed Secured Claim and
the applicable Impac Debtor agree to a different treatment, each holder of such
an Allowed Secured Claim shall receive a Tax Note pursuant to section 4.1 of the
Impac Plan.
(R) Acceptance By Impaired Classes (11 U.S.C. ss. 1129(a)(10)). At
least one Class of Claims against each of the Impac Debtors that is impaired
under the Impac Plan has accepted the Impac Plan, determined without including
any acceptance of the Impac Plan by any insider, thus satisfying the
requirements of section 1129(a)(10) of the Bankruptcy Code.
(S) Feasibility (11 U.S.C. ss. 1129(a)(11). The Disclosure
Statement, the Impac Plan, the Plan Supplement, the Voting Report, the
Confirmation Affidavits, the
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Confirmation Memorandum, and all evidence proffered or adduced at the
Confirmation Hearing (a) is persuasive and credible, (b) has not been
controverted by other evidence, and (c) establishes that confirmation of the
Impac Plan is not likely to be followed by the liquidation, or the need for
further financial reorganization, of the Reorganized Impac Debtors, thus
satisfying the requirements of section 1129(a)(l1) of the Bankruptcy Code.
(T) Payment of Fees (11 U.S.C. ss. 1129(a)(12)). All fees payable
under section 1930 of title 28, United States Code, as determined by the
Bankruptcy Court on the Confirmation Date, have been paid or will be paid
pursuant to Section 13.7 of the Impac Plan on the Effective Date, thus
satisfying the requirements of section 1129(a)(12) of the Bankruptcy Code.
(U) Continuation of Retiree Benefits (11 U.S.C. ss.
1129(a)(13)). Section 13.1 of the Impac Plan provides that, on and after the
Effective Date, the Reorganized Impac Debtors will continue to pay all "retiree
benefits" (as defined in section 1114(a) of the Bankruptcy Code), at the level
established pursuant to section 1114 of the Bankruptcy Code at any time prior to
confirmation of the Impac Plan, for the duration of the period the Impac Debtors
have obligated themselves to provide such benefits. Thus, the requirements of
section 1129(a)(13) of the Bankruptcy Code are satisfied.
(V) Fair and Equitable: No Unfair Discrimination (11
U.S.C. ss. 1129(b)). Based upon the Confirmation Affidavits and the evidence
proffered, adduced, or presented by the Impac Debtors at the Confirmation
Hearing, the Impac Plan does not discriminate unfairly and is fair and
equitable, as required by section 1129(b)(l) of the Bankruptcy Code, with
respect to any Classes that may reject the Impac Plan. Thus, the Impac Plan may
be confirmed notwithstanding the Impac Debtors' failure to satisfy section
1129(a)(8) of the Bankruptcy Code.
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Accordingly, upon confirmation and the occurrence of the Effective Date, the
Impac Plan shall be binding upon the members of any rejecting Classes.
(W) Principal Purpose of the Plan (11 U.S.C. ss. 1129(d)). The
principal purpose of the Impac Plan is not the avoidance of taxes or the
avoidance of the application of Section 5 of the Securities Act of 1933.
(X) Modifications to the Plan. The modifications to the Impac Plan
as may be set forth in any plan modifications filed with this Court and on the
record at the Confirmation Hearing constitute technical changes and/or changes
with respect to particular Claims by agreement with holders of such Claims, and
do not materially adversely affect or change the treatment of any Claims or
Equity Interests. Accordingly, pursuant to Bankruptcy Rule 3019, these
modifications do not require additional disclosure under section 1125 of the
Bankruptcy Code or resolicitation of votes under section 1126 of the Bankruptcy
Code, nor do they require that holders of Claims or Equity Interests be afforded
an opportunity to change previously cast acceptances or rejections of the Impac
Plan.
(Y) Good Faith Solicitation (11 U.S.C. ss. 1125(e)). Based on the
record before the Bankruptcy Court in these Chapter 11 Cases, the Impac Debtors
and their officers, employees, shareholders, members, agents, advisors,
accountants, investment bankers, consultants, attorneys, and other
representatives 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 their respective
activities relating to the solicitation of acceptances to the Impac 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(e)
of the Bankruptcy Code and the exculpation provisions set forth in Section 11.7
of the Impac Plan.
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(Z) Assumption and Rejection. Section 9 of the Impac Plan
governing the assumption and rejection of executory contracts and unexpired
leases satisfies the requirements of section 365(b) of the Bankruptcy Code.
Pursuant to Section 9.2 of the Impac Plan, except as may otherwise be agreed to
by the parties, within thirty (30) days after the Effective Date, the Impac
Debtors shall file and serve a statement with the Bankruptcy Court listing the
cure amounts of all executory contracts or unexpired leases to be assumed. The
parties to such executory contracts or unexpired leases to be assumed by the
applicable Impac Debtor shall have fifteen (15) days from service to object to
the cure amounts listed by the applicable Impac Debtor. If there are any
objections filed which are not resolved consensually by the applicable Impac
Debtor, then, upon request of the applicable Impac Debtor, the Bankruptcy Court
shall hold a hearing. Prior to and after the Effective Date, the applicable
Impac Debtor shall retain its right to reject any of its executory contracts or
unexpired leases, including contracts or leases that are subject to a dispute
concerning amounts necessary to cure any defaults. Notwithstanding the
foregoing, at all times through the date that is five (5) Business Days after
the Bankruptcy Court enters an order resolving and fixing the amount of a
disputed cure amount, the applicable Impac Debtor shall have the right to reject
such executory contract or unexpired lease.
(AA) Assumption and Assignments. In furtherance of the Exit
Financing Agreements, pursuant to sections 365 and 1123(a)(5) of the Bankruptcy
Code, the Impac Debtors are authorized to assume and assign to one or more of
the Exit Financing Borrowers or any other newly created borrowing entities one
or more executory contracts and unexpired leases to be assumed under the Impac
Plan. Any provision in any executory contract or unexpired lease that prohibits
or conditions the assignment of such executory contract or unexpired lease or
allows a non-debtor party to such executory contract or unexpired lease to
terminate, recapture, impose any penalty, condition renewal or extension, or
modify any term or condition upon the
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assignment of such executory contract or unexpired lease, constitutes an
unenforceable anti-assignment provision, which is void and of no force and
effect. Entry of this Confirmation Order shall constitute the approval of such
assumptions and assignments pursuant to sections 365 and 1123(a)(5) of the
Bankruptcy Code. Any provision in any such assumed and assigned contract and
lease that prohibits, restricts or conditions such assignment is unenforceable
under section 365(f) of the Bankruptcy Code. The requirements of section 365(b)
of the Bankruptcy Code shall be deemed satisfied with respect to each such
assumed and assigned contract and lease, and because each such assumption and
assignment is a necessary part of the Impac Debtors' Exit Financing, such
assumptions and assignments are in the best interests of the Impac Debtors and
their Estates.
(BB) Transfer of Property. The transfer by the Impac Debtors to one
or more of the Exit Financing Borrowers (i) is a legal, valid and effective
transfer of property, (ii) vests in one or more of the Exit Financing Borrowers
good title to such property free and clear of all liens, claims, charges,
encumbrances, or interests, except as expressly provided in the Impac Plan or
this Confirmation Order, (iii) does not constitute an avoidable transfer under
the Bankruptcy Code or under applicable nonbankruptcy law, and (iv) does not and
shall not subject any of the Exit Financing Borrowers to any liability by reason
of such transfer under the Bankruptcy Code or under applicable nonbankruptcy
law. The transfers of property of the Impac Debtors to the Exit Financing
Borrowers under or in connection with the Impac Plan are for good consideration
and value.
(CC) Satisfaction of Confirmation Requirements. The Impac Plan
satisfies the requirements for confirmation set forth in section 1129 of the
Bankruptcy Code.
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(DD) Retention of Jurisdiction. The Bankruptcy Court may properly
retain jurisdiction over the matters set forth in Section 12 of the Impac Plan
and section 1142 of the Bankruptcy Code.
DECREES
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. Confirmation. The Impac Plan, as modified, is approved and
confirmed under section 1129 of the Bankruptcy Code. The terms of the Impac Plan
and the Plan Supplement are incorporated by reference into and are an integral
part of the Impac Plan and this Confirmation Order.
2. Amendments. The modifications of the Impac Plan, to the extent
reflected on the record at the Confirmation Hearing, meet the requirements of
sections 1127(a) and (c), such modifications do not adversely change the
treatment of the Claim of any creditor or Equity Interest of any equity security
holder within the meaning of Bankruptcy Rule 3019, and no further solicitation
or voting is required.
3. Objections. All objections that have not been withdrawn,
waived, or settled, and all reservations of rights pertaining to confirmation of
the Impac Plan included therein, are overruled on the merits.
4. Plan Classification Controlling. The classifications of Claims
and Equity Interests for purposes of the distributions to be made under the
Impac Plan shall be governed solely by the terms of the Impac Plan. The
classifications set forth on the Ballots tendered to or returned by the Impac
Debtors' creditors in connection with voting on the Impac Plan (a) were set
forth on the Ballots solely for purposes of voting to accept or reject the Impac
Plan, (b) do not necessarily represent, and in no event shall be deemed to
modify or otherwise affect, the actual
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classification of such Claims and Equity Interests under the Impac Plan for
distribution purposes, and (c) shall not be binding on the Impac Debtors or the
Reorganized Impac Debtors.
5. Binding Effect. The Impac Plan and its provisions shall be
binding upon the Impac Debtors, the Reorganized Impac Debtors, the Disbursing
Agent, the Committee, any entity acquiring or receiving property or a
distribution under the Impac Plan, and any holder of a Claim against or Equity
Interest in the Impac Debtors, including all governmental entities (including
without limitation all taxing authorities), whether or not the Claim or Equity
Interest of such holder is impaired under the Impac Plan, whether or not the
Claim or Equity Interest is Allowed, and whether or not such holder or entity
has accepted the Impac Plan.
6. Vesting of Assets (11 U.S.C. ss. 1141(b) and (c)). Pursuant to
Section 11.1 of the Impac Plan, except as otherwise provided in the Impac Plan,
each Impac Debtor will, as a Reorganized Impac Debtor, continue to exist after
the Effective Date as a separate limited liability company, with all the powers
of a limited liability company under applicable law and without prejudice to any
right to alter or terminate such existence (whether by merger, dissolution, or
otherwise) under applicable state law. Except as otherwise expressly provided in
the Impac Plan, upon the Effective Date all property of the Impac Debtors'
estates shall vest in each of the applicable Exit Financing Borrowers and any
other newly created subsidiaries of the Reorganized Impac Debtors free and clear
of all Claims, liens, encumbrances, charges and other interests, and all such
Claims, liens, encumbrances, charges, and other interests shall be extinguished.
Each Reorganized Impac Debtor is authorized to execute the necessary
documentation to effectuate the vesting of property of the Impac Debtors in the
Exit Financing Borrowers or any other newly created subsidiaries. Each
Reorganized Impac Debtor may operate its businesses and may use, acquire and
dispose of property and compromise or settle any Claims without supervision or
approval by the Bankruptcy Court and free of any restrictions of
17
the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly
imposed by the Impac Plan or this Confirmation Order.
7. Assumption or Rejection of Executory Contracts and Unexpired
Leases (11 U.S.C. ss. 1123(b)(2)). Except as otherwise provided for herein,
pursuant to Section 9.1 of the Impac Plan, on the Effective Date, all executory
contracts and unexpired leases to which each Impac Debtor is a party shall be
deemed rejected as of the Effective Date, except for an executory contract or
unexpired lease that (i) has been assumed or rejected pursuant to a Final Order
of the Bankruptcy Court, (ii) is specifically designated as a contract or lease
to be assumed on the Schedule of Assumed Contracts set forth in the Plan
Supplement, provided however, that the Impac Debtors reserve the right to amend
the Plan Supplement at any time on or before the Effective Date to amend the
Schedule of Assumed Contracts to add or delete any executory contract or
unexpired lease, thus providing for its assumption, assumption and assignment,
or rejection; or (iii) is the subject of a separate motion to assume, assume and
assign, or reject filed under section 365 of the Bankruptcy Code by the
applicable Impac Debtor on or before the Effective Date. Listing a contract or
lease on the Schedule of Assumed Contracts shall not constitute an admission by
the Impac Debtors that such contract or lease is an executory contract or
unexpired lease or that the Impac Debtors have any liability thereunder. Any
provision in any executory contract or unexpired lease that prohibits or
conditions the assignment of such executory contract or unexpired lease or
allows a non-debtor party to such executory contract or unexpired lease to
terminate, recapture, impose any penalty, condition renewal or extension, or
modify any term or condition upon the assignment of such executory contract or
unexpired lease, constitutes an unenforceable anti-assignment provision, which
is void and of no force and effect.
8. Bar Date for Rejection Damage Claims. Pursuant to Section 9.4
of the Impac Plan, if the rejection of an executory contract or unexpired lease
by any of the Impac
18
Debtors, pursuant to Section 9.1 of the Impac Plan, results in damages to the
other party or parties to such contract or lease, a Claim for such damages, if
not heretofore evidenced by a filed proof of claim, shall be forever barred and
shall not be enforceable against the Impac Debtors or Reorganized Impac Debtors,
or their respective properties or interests in property as agents, successors,
or assigns, unless a proof of claim is filed with the Bankruptcy Court and
served upon counsel for the Impac Debtors on or before the date that is twenty
(20) days after the Effective Date or such later rejection date that occurs as a
result of a dispute concerning amounts necessary to cure any defaults.
9. General Authorizations. The approvals and authorizations
specifically set forth in this Confirmation Order are nonexclusive and are not
intended to limit the authority of any Impac Debtor, Reorganized Impac Debtor,
Exit Financing Borrower or officer or member thereof to take any and all actions
necessary or appropriate to implement, effectuate and consummate any and all
documents or transactions contemplated by the Impac Plan or this Confirmation
Order including but not limited to the execution, delivery, filing, or recording
of such contracts, instruments, releases, and other agreements or documents and
taking such actions as may be necessary or appropriate to effectuate, implement,
and further evidence the terms and conditions of the Impac Plan, including
without limitation any notes or securities issued pursuant to the Impac Plan.
The Impac Debtors, the Reorganized Impac Debtors, the Exit Financing Borrowers
and their respective officers, members, agents, and attorneys, are authorized
and empowered to issue, execute, deliver, file, or record any agreement,
document, or security, including, without limitation, the documents contained in
the Plan Supplement, as such documents may be modified, amended, and
supplemented, in substantially the form included therein, and to take any action
necessary or appropriate to implement, effectuate, and consummate the Impac Plan
in accordance with its terms, or take any or all corporate actions
19
authorized to be taken pursuant to the Impac Plan, and to make any release,
amendment, or restatement of any bylaws, certificates of incorporation, or other
organization documents of the Impac Debtors, the Reorganized Impac Debtors or
the Exit Financing Borrowers, whether or not specifically referred to in the
Impac Plan or the Plan Supplement, without further order of this Bankruptcy
Court, and any or all such documents shall be accepted by each of the respective
state filing offices and recorded in accordance with applicable state law and
shall become effective in accordance with their terms and the provisions of
state law. Pursuant to section 1142 of the Bankruptcy Code, to the extent that,
under applicable nonbankruptcy law, any of the foregoing actions otherwise would
require the consent or approval of the stockholders, members, or managers of any
of the Impac Debtors, Reorganized Impac Debtors or Exit Financing Borrowers,
this Confirmation Order shall constitute such consent or approval, and such
actions are deemed to have been taken by appropriate action of the Impac
Debtors, the Reorganized Impac Debtors or the Exit Financing Borrowers, as the
case may be.
10. Authorization to Enter into Stipulations. In addition to the
general authorization given to each of Impac Debtors, the Reorganized Impac
Debtors, and the Exit Financing Borrowers through this Confirmation Order and
the Impac Plan, each of the Impac Debtors, Reorganized Impac Debtors, and Exit
Financing Borrowers are authorized to execute and take such actions as may be
necessary or appropriate to effectuate and implement the terms of that certain
settlement agreement approved by Order of this Court Pursuant to Sections 362
and 363(b) of the Bankruptcy Code and Rule 9019(a) of the Federal Rules of
Bankruptcy Procedure Between the Impac Debtors and The Capital Company of
America LLC, entered on October 31, 2002 (the "Settlement Agreement"), including
the satisfaction of the CCA Secured Claims under Class 1-A of the Impac Plan.
Further, nothing in the Impac Plan or this Confirmation Order shall modify or
affect the terms of the Settlement Agreement or any
20
stipulations entered into by one or more of the Impac Debtors, each of which
shall remain valid and binding obligations of the parties thereto in accordance
with the terms thereof. In the event of any conflict between this Confirmation
Order and the Settlement Agreement or any of the aforementioned stipulations,
the terms of the Settlement Agreement or the stipulations shall control. Also in
addition to the general authorization given to each of the Impac Debtors, the
Reorganized Impac Debtors and the Exit Financing Borrowers through this
Confirmation Order and the Impac Plan, each of the Impac Debtors, the
Reorganized Impac Debtors and the Exit Financing Borrowers are authorized to
execute and take such actions as may be necessary or appropriate to effectuate
and implement the various stipulations relating to the treatment of holders of
Allowed Secured Claims or Allowed Unsecured Claims under the Impac Plan.
Specifically, nothing in the Impac Plan or this Confirmation Order shall modify
or affect the terms of any stipulation entered into by and between the
applicable Impac Debtor(s) and their franchisors relating to the assumption or
rejection of the applicable franchise agreements by the applicable Impac
Debtor(s), including any stipulation to be entered into at the Confirmation
Hearing or prior to the entry of this Confirmation Order, among Impac Hotels II,
L.L.C., on the one hand, and Holiday Hospitality Franchising, Inc., an affiliate
of Six Continents Hotels, Inc., on the other hand.
11. Authorization in Connection with Exit Financing Agreements.
(a) Without limitation on the general authorizations provided for
in this Confirmation Order and the Impac Plan, each of the Impac Debtors, the
Reorganized Impac Debtors and the Exit Financing Borrowers are authorized,
without further order of this Court, upon, or simultaneously in connection with,
consummation of the transactions contemplated in the Settlement Agreement, to
take all actions necessary or desirable in furtherance of the consummation and
implementation of the Exit Financing Agreements, and the transactions
21
contemplated by the Impac Plan, including without limitation, the following: (1)
executing the Exit Financing Agreements; (2) executing such other documents as
the Exit Financing Lender may reasonably require in order to effectuate the
treatment afforded to such parties under the Exit Financing Agreements without
further order of this Court; (3) performing all obligations necessary to
effectuate compliance with the terms and conditions of the Exit Financing
Agreements; and (4) specifically the following (a) Impac Hotels II, L.L.C. is
authorized to create thirteen single purpose, single member Delaware limited
liability companies in connection with the Exit Financing, each of which will
own one of the Impac Hotel Properties and be wholly-owned by Impac Hotels II,
L.L.C.; and (b) Impac Hotels III, L.L.C. is authorized to create five single
purpose, single member Delaware limited liability companies in connection with
the Exit Financing, each of which will own one of the Impac Hotel Properties and
be wholly-owned by Impac Hotels III, L.L.C.
(b) Notwithstanding any contrary provision in this Confirmation
Order or the Impac Plan, in connection with the payment of the CCA Settlement
Amount and the Exit Financing, which will result in the reorganizing of the
Impac Debtors, (i) the Impac Debtors are authorized, but are not obligated, to
transfer the Impac Hotel Properties to one or more of the Exit Financing
Borrowers; (ii) the Impac Debtors shall have the right, but are not obligated,
to cause the CCA Agreements(5) to be assigned to the Exit Financing Lender, as
is contemplated in the Settlement Agreement; (iii) the Exit Financing Lender
shall have the right to amend and restate the CCA Agreements to effectuate the
terms and conditions of the Exit Financing; and (iv) the Impac Debtors are
authorized to execute such other and further documents as are
- -------------------
(5) The term "CCA Agreements" is defined in the Impac Plan as the Mortgage
Financing Agreements dated as of August 31, 2000 between CCA and the
respective Impac Debtors, as such agreements have been modified by the CCA
Settlement Agreement.
22
necessary in order to effectuate the assignment, amendment, and restatement of
the CCA Agreements to the Exit Financing Lender.
12. Corporate Action. It is not necessary for the Reorganized
Impac Debtors to file Amended Organizational Documents because their
organizational structure shall remain the same after the Effective Date.
However, to the extent such documents require amendment in order to satisfy, for
example, section 1123(a)(6) of the Bankruptcy Code or to remove provisions
required by CCA in connection with the financing represented by the CCA Secured
Claims, such amendment is authorized.
13. Exit Financing Agreements.
(a) The eighteen single purpose, single member Delaware limited
liability companies being formed in connection with the Exit Financing, each of
which will own one of the Impac Hotel Properties and be wholly-owned by the
applicable Impac Debtor (together, the "Exit Financing Borrowers"), are
authorized to enter into new financing arrangements (the "Exit Financing
Agreements") on the Effective Date between the Exit Financing Lender, the Exit
Financing Borrowers and such other parties as are necessary in order to
effectuate the Exit Financing Agreements, in the case of the principal exit
financing agreements, substantially in the form set forth in the Plan Supplement
(subject to such modifications that are consistent with the terms of the Impac
Plan as the Plan Proponents may approve). All Cash necessary for the Reorganized
Impac Debtors to make payments pursuant to the Impac Plan will be obtained from
either (i) the proceeds of the Exit Financing, or (ii) a capital contribution
from Lodgian to each Impac Debtor to allow such Impac Debtor to discharge the
Claims against it in accordance with the terms of the Impac Plan.
(b) On the Effective Date, all of the liens and security interests
to be created under, or in connection with, the Exit Financing Agreements shall
be deemed approved and shall
23
be valid and perfected without any requirement of filing or recording of
financing statements, mortgages, deeds of trust, deeds to secured debt or other
evidence of such liens and security interests and without any approvals or
consents from governmental entities and no further act shall be required for the
perfection of the liens and security interests granted by the Exit Financing
Agreements, provided however, that the Exit Financing Lender may file financing
statements, mortgages, deeds of trust, deeds to secured debt or other documents
and take any and all actions as they deem necessary and appropriate, in their
reasonable discretion, to confirm the perfection of such security interests and
liens. In furtherance of the foregoing, the Reorganized Impac Debtors and the
Exit Financing Borrowers are authorized to make all filings and recordings and
to obtain all governmental approvals and consents necessary to establish and
perfect such liens and security interests under the provisions of state,
provincial, federal, or other law (whether domestic or foreign) that would be
applicable in the absence of this Confirmation Order, and will thereafter
cooperate to make all other filings and recordings that otherwise would be
necessary under applicable law to give notice of such liens and security
interests to third parties.
14. Plan Supplement. The documents contained in the Plan
Supplement and any amendments, modifications, and supplements thereto (to the
extent consistent with the terms of the Impac Plan as the Plan Proponents may
approve), and all documents and agreements introduced into evidence by the Impac
Debtors at the Confirmation Hearing (including all exhibits and attachments
thereto and documents referred to therein), and the execution, delivery, and
performance thereof by the Reorganized Impac Debtors or the Exit Financing
Borrowers, are authorized and approved, including, but not limited to, the Exit
Financing Agreements. Without need for further order or authorization of the
Bankruptcy Court, the Impac Debtors, the Reorganized Impac Debtors and the Exit
Financing Borrowers are authorized and empowered to
24
execute and deliver all documents, agreements, and instruments and take all
actions reasonably necessary to effectuate the consummation and implementation
of the Impac Plan including, without limitation, to make any and all
modifications to any and all documents included as part of the Plan Supplement
or as are necessary in connection with the execution, delivery and performance
of the Exit Financing Agreements, provided that in the reasonable judgment of
the Impac Debtors, such modifications do not materially modify the terms of such
documents and are consistent with the Impac Plan (subject to the approval of the
Committee).
15. Governmental Approvals Not Required. This Confirmation Order
shall constitute all approvals and consents required, if any, by the laws,
rules, or regulations of any state or any other governmental authority with
respect to the implementation or consummation of the Impac Plan and any
documents, instruments, or agreements, and any amendments or modifications
thereto, and any other acts referred to in or contemplated by the Impac Plan,
including the execution and consummation of the transactions contemplated by the
Exit Financing Agreements, the Disclosure Statement, and any documents,
instruments, or agreements, and any amendments or modifications thereto.
16. Exemption From Certain Taxes and Recording Fees. Pursuant to
section 1146(c) of the Bankruptcy Code, the issuance, transfer or exchange of
any security, or the making, delivery, filing or recording of any instrument of
transfer under, or in connection with, the Impac Plan, shall not be taxed under
any law imposing a recording tax, a stamp tax, transfer tax, or similar tax.
Without limiting the foregoing, any transfers (including, without limitation,
any transfer of the Impac Hotel Properties and any and all assets, contracts,
tangible property, intangible property or other property of the Impac Debtors)
from an Impac Debtor to a Reorganized Impac Debtor or to any other Person,
including, without limitation, the Exit Financing Borrowers, including, without
limitation, the granting of a mortgage lien or other lien
25
by the Exit Financing Borrowers in favor of the Exit Financing Lender, or the
assignment of the CCA Agreements to the Exit Financing Lender and the amendment
and restatement of the CCA Agreements by the Exit Financing Lender, including
effectuating the closing of the Exit Financing with the Exit Financing Lender
(or any subsequent sale of the Impac Hotel Properties made by an Exit Financing
Borrower within 180 days of the date of this Confirmation Order) will not be
subject to any document recording tax, stamp tax, conveyance fee, intangible or
similar tax, sales or use tax, mortgage tax, stamp act, real estate transfer
tax, mortgage recording tax, or any other recording fee or similar tax or
government assessment. All filing or recording officers (or any other Person
with authority over any of the foregoing), wherever located, and by whomever
appointed, shall comply with the requirements of this Confirmation Order and
shall forego the collection of any such tax, fee or governmental assessment, and
shall accept for filing and recordation any of the foregoing instruments or
other documents without the payment of any such tax, fee or governmental
assessment. The Reorganized Impac Debtors or the Exit Financing Borrowers or any
agent or representative of either is authorized to serve upon all filing and
recording officers a notice, in connection with the filing and recording of any
instruments of transfer contemplated by the Impac Plan, to evidence and
implement this paragraph of the Confirmation Order. This Bankruptcy Court
retains specific jurisdiction to enforce the foregoing direction by contempt
proceedings or otherwise.
17. Distributions. Pursuant to Section 7.3 of the Impac Plan, on
the Effective Date or as soon thereafter as is practicable, the Disbursing Agent
shall distribute to the holders of the applicable Allowed Claims (i) the Cash
allocable to Classes 1, 2, 3 and 5. For the purpose of calculating the Pro Rata
Share of the Class 3 Cash Pool to be initially distributed to holders of Allowed
Claims in Class 3, all Disputed Claims in Class 3 will be treated as though such
Claims will be Allowed Claims in the amounts asserted, or as estimated by the
Bankruptcy Court, as
26
applicable. On the Final Distribution Date, each holder of an Allowed Claim in
Class 3 shall receive, if applicable, a Catch-up Distribution. After the
Effective Date but prior to the Final Distribution Date, the applicable
Reorganized Impac Debtor, in its sole discretion, may direct the Disbursing
Agent to distribute a Pro Rata Share of the Class 3 Cash Pool to a holder of a
Disputed Claim in Class 3, which becomes an Allowed Claim after the Effective
Date such that the holder of such Claim receives the Pro Rata Share that such
holder would have received had its Claim been an Allowed Claim in such amount on
the Effective Date.
18. Waiver of Subordination. The distributions under the Impac
Plan take into account the relative priority of the Claims in each Class in
connection with any contractual subordination provisions relating thereto.
Accordingly, the distributions under the Impac Plan to any holder of an Allowed
Claim shall not be subject to levy, garnishment, attachment or other legal
process by any holder of indebtedness senior by reason of claimed contractual
subordination rights to the indebtedness of the holders of such Allowed Claim.
On the Effective Date, all creditors shall be deemed to have waived any and all
contractual subordination rights which they may have with respect to
distributions under the Impac Plan to any holder of an Allowed Claim, and the
Confirmation Order shall permanently enjoin, effective as of the Effective Date,
all Persons from enforcing or attempting to enforce any such rights with respect
to the distributions under the Impac Plan; provided, however, that nothing
herein shall affect the classification or treatment of any Subordinated Claims
in Class 11 of the Impac Plan. All rights and obligations of CCA and the Impac
Debtors and their affiliates, with respect to the Settlement Agreement, shall be
governed in all respects by the Settlement Agreement.
19. Final Fee Applications. Pursuant to Section 2.2 of the Impac
Plan, all entities seeking an award by the Bankruptcy Court of compensation for
services rendered or reimbursement of expenses incurred through and including
the Confirmation Date under section
27
503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code (i) shall
file their respective final applications for allowance of compensation for
services rendered and reimbursement of expenses incurred by the date that is
forty-five (45) days after the Effective Date, and (ii) shall be paid in full in
such amounts as are allowed by the Bankruptcy Court (A) upon the latter of (i)
the Effective Date and (ii) the date upon which the order relating to any such
Administrative Expense Claim is entered, or (B) upon such other terms as may be
mutually agreed upon between the holder of such an Administrative Expense Claim
and the Plan Proponents or, on and after the Effective Date, the Reorganized
Impac Debtors. Fees payable to or for the benefit of CCA shall be governed by
the Settlement Agreement and are not subject to the provisions of this
paragraph. Each Impac Debtor is authorized to pay compensation for services
rendered or reimbursement of expenses incurred after the Confirmation Date in
the ordinary course of business and without the need for Bankruptcy Court
approval.
20. Discharge of Claims. Pursuant to Section 11.2 of the Impac
Plan, except as otherwise provided in the Impac Plan or the Confirmation Order,
the rights afforded in the Impac Plan and the entitlement to receive payments
and distributions to be made hereunder shall discharge all existing Claims, of
any kind, nature or description whatsoever against each of the Impac Debtors or
any of their assets or properties. Except as provided in the Impac Plan, on the
Effective Date, all existing Claims against each of the Impac Debtors shall be,
and shall be deemed to be, discharged or canceled and all holders of Claims
shall be precluded and enjoined from asserting against the Impac Debtors and/or
the Reorganized Impac Debtors, or any of their assets or properties, any other
or further Claim based upon any act or omission, transaction or other activity
of any kind or nature that occurred prior to the Effective Date, whether or not
such holder has filed a proof of claim or equity interest.
28
21. Discharge of Impac Debtors. Pursuant to Section 11.3 of the
Impac Plan, upon the Effective Date and in consideration of the distributions to
be made under the Impac Plan, except as otherwise expressly provided in the
Impac Plan, each holder (as well as any trustees and agents on behalf of each
holder) of a Claim of such holder shall be deemed to have forever waived,
released and discharged each of the Impac Debtors, of and from any and all
Claims, rights and liabilities that arose prior to the Effective Date. Upon the
Effective Date, all such Persons shall be forever precluded and enjoined,
pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting
any such discharged Claim against each of the Impac Debtors.
22. Survival of Corporate Indemnities. Pursuant to Section 9.6 of
the Impac Plan, any obligations of any of the Impac Debtors pursuant to the
applicable Impac Debtor's corporate charters and bylaws or agreements entered
into any time prior to the Effective Date, to indemnify any Releasee, with
respect to all present and future actions, suits and proceedings against such
Impac Debtor or such Releasee, based upon any act or omission for or on behalf
of such Impac Debtor, shall not be discharged or impaired by confirmation of the
Impac Plan. Such obligations shall be deemed and treated as executory contracts
to be assumed by the applicable Impac Debtor pursuant to the Impac Plan, and
shall continue as obligations of the applicable Reorganized Impac Debtor.
23. Releases, Exculpations, and Injunctions. The release,
exculpation, and injunction provisions contained in the Impac Plan are fair and
equitable, are given for valuable consideration, and are in the best interests
of the Impac Debtors and their chapter 11 estates, and such provisions shall be
effective and binding upon all persons and entities.
24. Termination of Injunctions and Automatic Stay. Pursuant to
Section 11.5 of the Impac Plan, unless otherwise provided in the Impac Plan, all
injunctions or stays arising
29
under section 105 or 362 of the Bankruptcy Code, any order entered during the
Chapter 11 Cases under section 105 or 362 of the Bankruptcy Code or otherwise,
and in existence on the Confirmation Date, shall remain in full force and effect
until the later of the Effective Date and the date indicated in such order.
25. Disallowance of Adequate Protection Claims. As of the
Effective Date, all Adequate Protection Claims (as hereinafter defined) shall be
deemed to be disallowed. As used herein, "Adequate Protection Claims" shall mean
any and all claims for (a) adequate protection arising under section 361, 362,
363 or 364 of the Bankruptcy Code, or (b) any diminution in the value of a
creditor's interest in property of the Impac Debtor's estates, from the Petition
Date through and including the Effective Date, whether such claim arises by
stipulation, agreement, statute, court order or otherwise.
26. Termination of Adequate Protection Liens. As of the Effective
Date, all liens, charges or other encumbrances on property of the Impac Debtors'
estates securing the payment of any Adequate Protection Claim shall be deemed to
be discharged and released, without the need for the filing of any releases or
termination statements or similar documents or taking any further action
whatsoever.
27. Nonoccurrence of Effective Date. In the event that the
Effective Date does not occur, then (i) the Impac Plan, (ii) assumption or
rejection of executory contracts or unexpired leases pursuant to the Impac Plan,
(iii) any document or agreement executed pursuant to the Impac Plan, and (iv)
any actions, releases, waivers, or injunctions authorized by this Confirmation
Order or any order in aid of consummation of the Impac Plan shall be deemed null
and void. In such event, nothing contained in this Confirmation Order, any order
in aid of consummation of the Impac Plan, or the Impac Plan, and no acts taken
in preparation for consummation of the Impac Plan, (a) shall be deemed to
constitute a waiver or release of any
30
Claims or Equity Interests by or against the Impac Debtors or any other persons
or entities, to prejudice in any manner the rights of the Impac Debtors or any
person or entity in any further proceedings involving the Impac Debtors or
otherwise, or to constitute an admission of any sort by the Impac Debtors or any
other persons or entities as to any issue, or (b) shall be construed as a
finding of fact or conclusion of law in respect thereof. Notwithstanding the
foregoing, in the event the Effective Date does not occur, nothing in this
Confirmation Order shall be deemed to affect or impact in any manner the rights
and remedies of CCA or the obligations of the Impac Debtors and their affiliates
under the terms and conditions of the Settlement Agreement.
28. Notice of Entry of Confirmation Order. On or before the tenth
(10th) Business Day following the date of entry of this Confirmation Order, the
Impac Debtors shall electronically file with the Court and serve notice of entry
of this Confirmation Order on the parties identified in the Master Service List
as defined in this Court's Order Establishing Notice Procedures, dated December
21, 2001, by causing notice of entry of the Confirmation Order (the "Notice of
Confirmation"), to be delivered to such parties by first-class mail, postage
prepaid. The notice described herein is adequate under the particular
circumstances and no other or further notice is necessary. The Impac Debtors
also shall cause the Notice of Confirmation to be published as promptly as
practicable after the entry of this Confirmation Order once in each of The New
York Times (National Edition), The Wall Street Journal (National Edition), and
USA Today.
29. Notice of Effective Date. Within five (5) Business Days
following the occurrence of the Effective Date, the Reorganized Impac Debtors
shall file notice of the occurrence of the Effective Date and shall serve a copy
of same on the parties identified in the Master Service List as defined in this
Court's Order Establishing Notice Procedures, dated December 21,2001.
31
30. Authorization to File Conformed Plan. The Impac Debtors are
authorized to file a conformed plan, dated on the date hereof, which
incorporates the amendments to the Impac Plan within thirty (30) days of the
entry at this Confirmation Order.
31. Binding Effect. Pursuant to sections 1123(a) and 1142(a) of
the Bankruptcy Code and the provisions of this Confirmation Order, the Impac
Plan, the Plan Supplement, and the Plan Documents shall apply and be enforceable
notwithstanding any otherwise applicable nonbankruptcy law.
32. Severability. Each term and provision of the Impac Plan, as it
may have been altered or interpreted by the Bankruptcy Court in accordance with
Section 13.11 of the Impac Plan, is valid and enforceable pursuant to its terms.
33. Conflicts Between Confirmation Order and Impac Plan. To the
extent of any inconsistency between the provisions of the Impac Plan and this
Confirmation Order, the terms and conditions contained in this Confirmation
Order shall govern. The provisions of this Confirmation Order are integrated
with each other and are nonseverable and mutually dependent unless expressly
stated by further order of this Bankruptcy Court.
Dated: April 24, 2003
New York, New York
/s/Burton R. Lifland
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UNITED STATES BANKRUPTCY JUDGE
32