EXHIBIT 10.13.2
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- --------------------------------------x
In re : Chapter 11
LODGIAN, INC., et al., : Case No. 01-16345 (BRL)
Debtors. : Jointly Administered
- --------------------------------------x
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
CADWALADER, WICKERSHAM CURTIS, MALLET-PREVOST, COLT
& TAFT LLP & MOSLE LLP
Attorneys for the Debtors and Co-Attorneys for the Debtors and
Debtors-In-Possession Debtors-In-Possession
100 Maiden Lane 101 Park Avenue
New York, New York 10038 New York, New York 10178
(212) 504-6000 (212) 696-6000
- and -
DEBEVOISE & PLIMPTON
Attorneys for the Official Committee of
Unsecured Creditors
919 Third Avenue
New York, New York 10022
(212) 909-6000
Dated: As of March 3, 2003
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS AND INTERPRETATION ....................... 1
A. Definitions ........................................ 1
1.1 Administrative Expense Claim ....................... 1
1.2 Allowed ............................................ 2
1.3 Amended Organizational Documents ................... 2
1.4 Bankruptcy Code .................................... 2
1.5 Bankruptcy Court ................................... 2
1.6 Bankruptcy Rules ................................... 2
1.7 Business Day ....................................... 2
1.8 Cash ............................................... 3
1.9 Catch-up Distribution .............................. 3
1.10 CCA ................................................ 3
1.11 CCA Agreements ..................................... 3
1.12 CCA Secured Claim .................................. 3
1.13 CCA Settlement Agreement ........................... 3
1.14 Chapter 11 Cases ................................... 3
1.15 Claim .............................................. 3
1.16 Class .............................................. 3
1.17 Class 3 Cash Pool .................................. 3
1.18 Class 3 Subclass ................................... 4
1.19 Collateral ......................................... 4
1.20 Commencement Date .................................. 4
1.21 Committee .......................................... 4
1.22 Confirmation Date .................................. 4
1.23 Confirmation Hearing ............................... 4
1.24 Confirmation Order ................................. 4
1.25 Confirmed Debtors .................................. 4
1.26 Convenience Claim .................................. 4
1.27 Debtors ............................................ 4
1.28 Disbursing Agent ................................... 5
1.29 Disputed Claim ..................................... 5
1.30 Disputed Claims Reserve ............................ 5
1.31 Distribution Record Date ........................... 5
1.32 Effective Date ..................................... 5
1.33 Equity Interest .................................... 6
1.34 Equity Security .................................... 6
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1.35 Estate ........................................................ 6
1.36 Exit Financing ................................................ 6
1.37 Exit Financing Agreements ..................................... 6
1.38 Exit Financing Borrowers ...................................... 6
1.39 Exit Financing Lender ......................................... 6
1.40 Final Distribution Date ....................................... 6
1.41 Final Order ................................................... 6
1.42 General Unsecured Claim ....................................... 7
1.43 Inter-Company Claim ........................................... 7
1.44 Mortgage Financing Agreements ................................. 7
1.45 Person ........................................................ 7
1.46 Plan .......................................................... 7
1.47 Plan Documents ................................................ 7
1.48 Plan Proponents ............................................... 7
1.49 Plan Supplement ............................................... 7
1.50 Priority Non-Tax Claim ........................................ 7
1.51 Priority Tax Claim ............................................ 8
1.52 Pro Rata Share ................................................ 8
1.53 Releasees ..................................................... 8
1.54 Reorganized Debtor ............................................ 8
1.55 Schedule of Assumed Contracts ................................. 8
1.56 Schedules ..................................................... 8
1.57 Secured Claim ................................................. 8
1.58 Settlement Amount ............................................. 8
1.59 Subclass ...................................................... 8
1.60 Subclass Debtor ............................................... 9
1.61 Subordinated Claim ............................................ 9
1.62 Tort Claim .................................................... 9
B. Interpretation; Application of Definitions and
Rules of Construction ....................................... 9
SECTION 2. ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY TAX CLAIMS ......... 9
2.1 Administrative Expense Claims ................................. 9
2.2 Compensation and Reimbursement Claims. ........................ 10
2.3 Priority Tax Claims ........................................... 10
SECTION 3. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS .................... 10
3.1 Classes ....................................................... 11
3.2 Subclasses for Class 1 ........................................ 11
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3.3 Subclasses for Class 3 ........................................ 11
SECTION 4. TREATMENT OF CLAIMS AND EQUITY INTERESTS ........................ 12
4.1 Secured Claims (Class 1). ..................................... 12
4.2 Priority Non-Tax Claims (Class 2). ............................ 13
4.3 General Unsecured Claims (Class 3). ........................... 13
4.4 Intentionally Omitted ......................................... 13
4.5 Convenience Claims (Class 5). ................................. 13
4.6 Intentionally Omitted ......................................... 14
4.7 Intentionally Omitted ......................................... 14
4.8 Equity Interests (Class 9) .................................... 14
4.9 Intentionally Omitted ......................................... 14
4.10 Subordinated Claims (Class 11) ................................ 14
SECTION 5. ACCEPTANCE OR REJECTION OF PLAN ................................. 14
5.1 Voting of Claims .............................................. 14
5.2 Acceptance by a Class ......................................... 14
5.3 Presumed Acceptance of Plan ................................... 14
5.4 Presumed Rejection of Plan. ................................... 15
SECTION 6. MEANS FOR IMPLEMENTATION ........................................ 15
6.1 Exit Financing ................................................ 15
6.2 Intentionally Omitted ......................................... 15
6.3 Intentionally Omitted ......................................... 15
6.4 Waiver of Subordination. ...................................... 15
6.5 Intentionally Omitted ......................................... 16
6.6 Intentionally Omitted ......................................... 16
6.7 Intentionally Omitted ......................................... 16
6.8 Intentionally Omitted ......................................... 16
6.9 Executive Officers ............................................ 16
6.10 Amended Organizational Documents. ............................. 16
6.11 Intentionally Omitted ......................................... 16
6.12 Authorization of Notes ........................................ 16
6.13 Intentionally Omitted ......................................... 17
SECTION 7. DISTRIBUTIONS ................................................... 17
7.1 Distribution Record Date. ..................................... 17
7.2 Date of Distributions ......................................... 17
7.3 Distributions to Classes ...................................... 17
7.4 Disbursing Agent. ............................................. 18
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7.5 Rights and Powers of Disbursing Agent ......................... 18
7.6 Intentionally Omitted ......................................... 18
7.7 Delivery of Distribut ions. ................................... 18
7.8 Manner of Payment Under Plan .................................. 19
7.9 Retention of Equity Interests ................................. 19
7.10 De Minimis Distributions. ..................................... 19
7.11 Setoffs. ...................................................... 19
7.12 Allocation of Plan Distribution Between Principal
and Interest .................................................. 20
7.13 Withholding and Reporting Requirements. ....................... 20
7.14 Time Bar to Cash Payments ..................................... 20
7.15 Transactions on Business Days ................................. 20
7.16 Closing of Chapter 11 Cases ................................... 21
SECTION 8. PROCEDURES FOR RESOLVING AND TREATING DISPUTED CLAIMS ........... 21
8.1 Payments and Distributions with Respect to Disputed Claims .... 21
8.2 Preservation of Insurance ..................................... 22
8.3 Resolution of Disputed Claims. ................................ 22
8.4 Distributions After Allowance ................................. 23
8.5 Reserve Accounts for Class 3 Disputed Claims. ................. 23
8.6 Investment of Disputed Claims Reserves. ....................... 23
8.7 Release of Funds from Disputed Claims Reserves. ............... 24
8.8 Estimation of Claims .......................................... 24
8.9 No Recourse ................................................... 24
8.10 Mediation of Disputed Claims. ................................. 25
SECTION 9. EXECUTORY CONTRACTS AND UNEXPIRED LEASES ........................ 26
9.1 General Treatment ............................................. 26
9.2 Cure of Defaults .............................................. 26
9.3 Assumptions and Assignments of Executory Contracts and
Unexpired Leases .............................................. 27
9.4 Approval of Rejection of Executory Contracts and Unexpired
Leases ........................................................ 27
9.5 Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to Plan ...... 27
9.6 Survival of Debtors' Corporate Indemnities .................... 27
SECTION 10. CONDITIONS PRECEDENT TO EFFECTIVE DATE ......................... 28
10.1 Conditions to Effective Date .................................. 28
10.2 Waiver of Conditions .......................................... 28
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SECTION 11. EFFECT OF CONFIRMATION ................................ 28
11.1 Vesting of Assets. .................................... 28
11.2 Discharge of Claims ................................... 29
11.3 Discharge of Debtors. ................................. 29
11.4 Binding Effect ........................................ 29
11.5 Term of Injunctions or Stays .......................... 29
11.6 Injunction Against Interference with Plan. ............ 30
11.7 Exculpation. .......................................... 30
11.8 Rights of Action. ..................................... 30
11.9 Release by Debtors .................................... 30
11.10 Release of Releasees by Other Releasees. .............. 31
11.11 Claims of the United States Government ................ 31
SECTION 12. RETENTION OF JURISDICTION ............................. 31
SECTION 13. MISCELLANEOUS PROVISIONS .............................. 33
13.1 Retiree Benefits ...................................... 33
13.2 Deletion of Classes and Subclasses. ................... 33
13.3 Addition of Classes and Subclasses .................... 34
13.4 Committee ............................................. 34
13.5 Exemption from Transfer Taxes. ........................ 34
13.6 Substantial Consummation. ............................. 34
13.7 Payment of Statutory Fees. ............................ 34
13.8 Amendments. ........................................... 35
13.9 Revocation or Withdrawal of Plan ...................... 35
13.10 Cramdown. ............................................. 35
13.11 Severability. ......................................... 35
13.12 Request for Expedited Determination of Taxes .......... 36
13.13 Courts of Competent Jurisdiction. ..................... 36
13.14 Governing Law. ........................................ 36
13.15 Time. ................................................. 36
13.16 Headings .............................................. 36
13.17 Exhibits. ............................................. 37
13.18 Notices. .............................................. 37
EXHIBITS
Exhibit A: List of Debtors
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v
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- ---------------------------------------------- x
In re : Chapter 11
LODGIAN, INC., et al., : Case No. 01-16345 (BRL)
Debtors. : Jointly Administered
- ---------------------------------------------- x
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
Impac Hotels II, L.L.C. and Impac Hotels III, L.L.C. (the
"Debtors" or "Impac Debtors"), debtors and debtors-in-possession in the
above-captioned chapter 11 cases, together with the official committee of
unsecured creditors appointed in these chapter 11 cases, propose the following
joint chapter 11 plan of reorganization pursuant to section 1121(a) of title 11
of the United States Code.
WHILE THIS IS A JOINT PLAN FOR EACH OF THE DEBTORS, IT DOES
NOT PROVIDE THAT THESE CHAPTER 11 CASES WILL BE SUBSTANTIVELY CONSOLIDATED.
ACCORDINGLY, TO THE EXTENT APPLICABLE TO A DEBTOR, ALL OF THE PROVISIONS OF THIS
PLAN, INCLUDING WITHOUT LIMITATION THE DEFINITIONS AND DISTRIBUTIONS TO
CREDITORS AND EQUITY INTEREST HOLDERS, SHALL APPLY TO THE RESPECTIVE ASSETS OF,
CLAIMS AGAINST, AND EQUITY INTERESTS IN, SUCH DEBTOR'S SEPARATE ESTATE.
SECTION 1. DEFINITIONS AND INTERPRETATION
A. DEFINITIONS.
The following terms used herein shall have the respective
meanings defined below (such meanings to be equally applicable to both the
singular and plural):
1.1 ADMINISTRATIVE EXPENSE CLAIM means any right to payment
constituting a cost or expense of administration of the Chapter 11 Cases allowed
under sections 503(b) and 507(a)(1) of the Bankruptcy Code, including, without
limitation, any actual and necessary costs and expenses of preserving the
applicable Debtor's Estate, any actual and necessary costs and expenses of
operating the applicable Debtor's businesses,
any indebtedness or obligations incurred or assumed by the applicable Debtor, as
a debtor-in-possession, during the Chapter 11 Cases (including, without
limitation, for the acquisition or lease of property or an interest in property
or the rendition of services), any allowances of compensation and reimbursement
of expenses to the extent allowed by a Final Order under section 330 or 503 of
the Bankruptcy Code, and any fees or charges assessed against the Estate of the
applicable Debtor under section 1930 of chapter 123 of title 28 of the United
States Code.
1.2 ALLOWED means, with reference to any Claim, (i) any Claim
against a Debtor which has been listed by such Debtor in the Schedules, as such
Schedules may be amended by the applicable Debtor from time to time in
accordance with Bankruptcy Rule 1009, as liquidated in amount and not disputed
or contingent and for which no contrary proof of claim or equity interest has
been filed, (ii) any timely filed Claim as to which no objection to allowance
has been interposed in accordance with Section 8.3 hereof or such other
applicable period of limitation fixed by the Bankruptcy Code, the Bankruptcy
Rules or the Bankruptcy Court, or as to which any objection has been determined
by a Final Order to the extent that such objection is determined in favor of the
respective holder, or (iii) any Claim expressly allowed by a Final Order or
hereunder.
1.3 AMENDED ORGANIZATIONAL DOCUMENTS means the corporate,
partnership or limited liability company organizational documents, as
applicable, of each Debtor as amended and adopted on the Effective Date as
necessary to comply with the requirements of the Bankruptcy Code and effect the
terms of this Plan (including the implementation of the Exit Financing),
substantially in the form set forth in the Plan Supplement for Reorganized
Debtors.
1.4 BANKRUPTCY CODE means title 11 of the United States Code,
as amended from time to time, as applicable to the Chapter 11 Cases.
1.5 BANKRUPTCY COURT means the United States District Court
for the Southern District of New York having jurisdiction over the Chapter 11
Cases and, to the extent of the reference of the Chapter 11 Cases pursuant to 28
U.S.C. Section 157(a), the United States Bankruptcy Court for the Southern
District of New York.
1.6 BANKRUPTCY RULES means the Federal Rules of Bankruptcy
Procedure as promulgated by the United States Supreme Court under section 2075
of title 28 of the United States Code, as amended from time to time, as
applicable to the Chapter 11 Cases, and any Local Rules of the Bankruptcy Court.
1.7 BUSINESS DAY means any day other than a Saturday, a
Sunday, or any other day on which banking institutions in New York, New York are
required or authorized to close by law or executive order.
-2-
1.8 CASH means legal tender of the United States of America.
1.9 CATCH-UP DISTRIBUTION means with respect to each holder of
an Allowed Claim in Class 3, the difference between (i) the Pro Rata Share of
the Class 3 Cash Pool that such holder would have received if the resolution of
all Disputed Claims in Class 3 had been known on the Effective Date, and (ii)
the Pro Rata Share of the Class 3 Cash Pool previously received by such holder.
1.10 CCA means The Capital Company of America LLC.
1.11 CCA AGREEMENTS means the Mortgage Financing Agreements
dated as of August 31, 2000 between CCA and the following debtors: Impac Hotels
II, L.L.C., Impac Hotels III, L.L.C., Impac Hotel Group, L.L.C. and Lodgian,
Inc., as such agreements have been modified by the CCA Settlement Agreement.
1.12 CCA SECURED CLAIM means the Claim by CCA, as agreed to by
the Impac Debtors and CCA under the CCA Settlement Agreement.
1.13 CCA SETTLEMENT AGREEMENT means the settlement agreement
dated as of October 21, 2002, as approved by the Bankruptcy Court on October 31,
2002, which, inter alia, permits the Impac Debtors to fully discharge the CCA
Secured Claim.
1.14 CHAPTER 11 CASES means individually, the voluntary case
commenced by each Debtor under its respective case number as listed on Exhibit
A, and collectively, the voluntary cases under chapter 11 of the Bankruptcy Code
commenced by each Debtor on the Commencement Date in the United States
Bankruptcy Court for Southern District of New York, styled In re Lodgian, Inc.,
et al., Case No. 01-16345 (BRL), which are currently pending before the
Bankruptcy Court.
1.15 CLAIM means (i) any right to payment from any of the
Debtors, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, known or unknown, or (ii) any right to
an equitable remedy for breach of performance if such breach gives rise to a
right of payment from any of the Debtors, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured, known or unknown.
1.16 CLASS means a class of Claims or Equity Interests
established pursuant to Section 3.
1.17 CLASS 3 CASH POOL means the $302,484 in Cash which shall
be reserved as the aggregate Cash pool to be used for a pro rata distribution to
the holders of Allowed Claims in both Subclasses of Class 3.
-3-
1.18 CLASS 3 SUBCLASS means the Subclass for each Debtor.
1.19 COLLATERAL means any property or interest in property of
the Estate of any Debtor subject to a lien, charge or other encumbrance to
secure the payment or performance of a Claim, which lien, charge or other
encumbrance is not subject to avoidance under the Bankruptcy Code.
1.20 COMMENCEMENT DATE means December 20, 2001 with respect to
the Debtors and the Confirmed Debtors; provided, however, that "Commencement
Date" means (i) December 21, 2001 with respect to Worcester Hospitality, L.P.,
Lodgian Hotels, Inc., Brecksville Hospitality, L.P. and Sioux City Hospitality,
L.P., and (ii) April 17, 2002 with respect to New Orleans Airport Motel
Associates, L.P.
1.21 COMMITTEE means the official committee of general
unsecured creditors appointed by the Office of the United States Trustee in the
Chapter 11 Cases pursuant to section 1102 of the Bankruptcy Code, as the
membership of such Committee may be altered from time to time.
1.22 CONFIRMATION DATE means the date on which the Clerk of
the Bankruptcy Court enters the Confirmation Order.
1.23 CONFIRMATION HEARING means the hearing to be held by the
Bankruptcy Court regarding confirmation of this Plan, as such hearing may be
adjourned or continued from time to time.
1.24 CONFIRMATION ORDER means the order of the Bankruptcy
Court confirming this Plan pursuant to section 1129 of the Bankruptcy Code.
1.25 CONFIRMED DEBTORS means the all of the debtors in these
jointly administered above-captioned chapter 11 cases except the Impac Debtors.
1.26 CONVENIENCE CLAIM means (i) an Allowed General Unsecured
Claim against either of the Debtors in an amount equal to $200 or less, (ii) the
Allowed General Unsecured Claim against either of the Debtors of a holder that
has irrevocably elected on its ballot to reduce such Claim against such
Debtor(s) to the amount of $200, or (iii) a Disputed Claim against either of the
Debtors that becomes an Allowed General Unsecured Claim of $200 or less with the
consent of, and in the amount agreed to by, the applicable Debtor or pursuant to
a Final Order.
1.27 DEBTORS means IMPAC Hotels II, L.L.C. and IMPAC Hotels
III, L.L.C., including in their capacity as debtors and debtors in possession
pursuant to sections 1101, 1107(a) and 1108 of the Bankruptcy Code in chapter 11
cases 01-16367 and 01-16375, respectively.
-4-
1.28 DISBURSING AGENT means any entity (including any
applicable Debtor if it acts in such capacity) in its capacity as a disbursing
agent under Section 7.4 hereof.
1.29 DISPUTED CLAIM means any Claim which has not been Allowed
pursuant to this Plan or a Final Order, and
(a) if no proof of claim has been filed by the applicable
deadline: (i) a Claim that has been or hereafter is listed on the Schedules as
disputed, contingent or unliquidated; or (ii) a Claim that has been or hereafter
is listed on the Schedules as other than disputed, contingent or unliquidated,
but as to which the applicable Debtor(s) or the Reorganized Debtors or any other
party in interest has interposed an objection or request for estimation which
has not been withdrawn or determined by a Final Order; or
(b) if a proof of claim or request for payment of an
Administrative Expense Claim has been filed by the applicable deadline: (i) a
Claim for which no corresponding Claim has been or hereafter is listed on the
Schedules; (ii) a Claim for which a corresponding Claim has been or hereafter is
listed on the Schedules as other than disputed, contingent or unliquidated, but
for which the nature or amount of the Claim as asserted in the proof of claim
varies from the nature and amount of such Claim as listed on the Schedules;
(iii) a Claim for which a corresponding Claim has been or hereafter is listed on
the Schedules as disputed, contingent or unliquidated and which has not been
resolved by written agreement of the parties or a Final Order; (iv) a Claim for
which a timely objection or request for estimation is interposed by the
applicable Debtor(s) or the Reorganized Debtors or any other party in interest,
which has not been withdrawn or determined by a Final Order; or (v) any Tort
Claim.
1.30 DISPUTED CLAIMS RESERVE means, in the event there exists
any Disputed Claim in Class 3 on or after the Effective Date, Cash to be set
aside by the Debtors in an interest-bearing account, in amounts sufficient to
pay all such Disputed Claims in Class 3 in accordance with the provisions of
this Plan, if such Disputed Claims become Allowed Claims, and to be maintained
under this Plan, as set forth more fully in section 8.5 of this Plan. The amount
of Cash to be set aside by the Debtors on the Effective Date shall not exceed
the amount of the Class 3 Cash Pool.
1.31 DISTRIBUTION RECORD DATE means the date fixed as the
"Distribution Record Date" by order of the Bankruptcy Court approving, inter
alia, procedures to solicit acceptances or rejections of this Plan.
1.32 EFFECTIVE DATE means a Business Day on or after the
Confirmation Date specified by the Plan Proponents on which (i) no stay of the
Confirmation Order is in effect and (ii) the conditions to the effectiveness of
this Plan specified in Section 10.1 hereof have been satisfied or waived.
-5-
1.33 EQUITY INTEREST means the rights of a holder of an Equity
Security.
1.34 EQUITY SECURITY means, with respect to any Debtor, its
authorized capital stock, membership interests, partnership interests or similar
ownership interests, whether or not transferable, including any option, warrant
or right, contractual or otherwise, to acquire any such interest.
1.35 ESTATE means, as to each Debtor, the estate created
pursuant to section 541 of the Bankruptcy Code upon the commencement of such
Debtor's Chapter 11 Case.
1.36 EXIT FINANCING means the loan provided to the Exit
Financing Borrowers by the Exit Financing Lender pursuant to the Exit Financing
Agreements.
1.37 EXIT FINANCING AGREEMENTS means the Mortgage Financing
Agreements to be entered into on the Effective Date among, inter alia, the Exit
Financing Lender and the Exit Financing Borrowers.
1.38 EXIT FINANCING BORROWERS means the eighteen single
purpose entities, 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.
1.39 EXIT FINANCING LENDER means the Person(s) named as the
lender(s) under the Exit Financing Agreements.
1.40 FINAL DISTRIBUTION DATE means, in the event that there
exist on the Effective Date any Disputed Claims, a date selected by the Plan
Proponents, in their sole discretion, on which all such Disputed Claims have
been resolved by Final Order.
1.41 FINAL ORDER means an order or judgment of the Bankruptcy
Court entered by the Clerk of the Bankruptcy Court on the docket in the Chapter
11 Cases, which has not been reversed, vacated or stayed and as to which (i) the
time to appeal, petition for certiorari or move for a new trial, reargument or
rehearing has expired and as to which no appeal, petition for certiorari or
other proceedings for a new trial, reargument or rehearing shall then be
pending, or (ii) if an appeal, writ of certiorari, new trial, reargument or
rehearing thereof has been sought, such order or judgment of the Bankruptcy
Court shall have been affirmed by the highest court to which such order was
appealed, or certiorari shall have been denied, or a new trial, reargument or
rehearing shall have been denied or resulted in no modification of such order,
and the time to take any further appeal, petition for certiorari or move for a
new trial, reargument or rehearing shall have expired; provided, however, that
the possibility that a motion under Rule 60 of the Federal Rules of Civil
Procedure, or any analogous rule under the Bankruptcy Rules, may be filed
relating to such order shall not cause such order to not be a Final Order.
-6-
1.42 GENERAL UNSECURED CLAIM means any Claim against the
applicable Debtor that (i) is not an Administrative Expense Claim, a Priority
Tax Claim, a Secured Claim, a Priority Non-Tax Claim, or a Subordinated Claim,
or (ii) is otherwise determined by the Bankruptcy Court to be a General
Unsecured Claim.
1.43 INTER-COMPANY CLAIM means any General Unsecured Claim
held by a Debtor against another Debtor and/or a Confirmed Debtor against a
Debtor.
1.44 MORTGAGE FINANCING AGREEMENTS means, with respect to any
financing arrangements secured by the interest of the Debtors or each of their
subsidiaries in any hotel property (including any leasehold interest), the
applicable loan agreements and all related agreements, instruments and other
documents, including all promissory notes, mortgages (including leasehold
mortgages), security agreements and assignments of leases and rents, as the same
may be amended or modified from time to time.
1.45 PERSON means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority, governmental
unit or other entity of whatever nature.
1.46 PLAN means this joint chapter 11 plan of reorganization
of the Debtors, to the extent applicable to any Debtor, including the Plan
Supplement and the exhibits hereto and thereto, as the same may be amended or
modified from time to time in accordance with the provisions of the Bankruptcy
Code and the terms hereof.
1.47 PLAN DOCUMENTS means the documents to be executed,
delivered, assumed or performed in conjunction with the consummation of this
Plan on the Effective Date, including (i) the Amended Organizational Documents
and (ii) the Exit Financing Agreements. Each of the Plan Documents to be entered
into or adopted as of the Effective Date will be filed in draft form in the Plan
Supplement.
1.48 PLAN PROPONENTS means each Debtor and the Committee.
1.49 PLAN SUPPLEMENT means a supplemental appendix to this
Plan that will contain (i) the draft form of the Plan Documents to be entered
into as of the Effective Date and (ii) the Schedule of Assumed Contracts as of
the date of the Plan Supplement, to be filed seven (7) days before the date of
the Confirmation Hearing.
1.50 PRIORITY NON-TAX CLAIM means any Claim other than an
Administrative Expense Claim or a Priority Tax Claim, entitled to priority in
payment as specified in section 507(a)(3), (4), (5), (6), (7) or (9) of the
Bankruptcy Code.
-7-
1.51 PRIORITY TAX CLAIM means any Claim of a governmental unit
of the kind entitled to priority in payment as specified in sections 502(i) and
507(a)(8) of the Bankruptcy Code.
1.52 PRO RATA SHARE means, with respect to an Allowed Claim in
Class 3, a proportional share of the Class 3 Cash Pool equal to (x) the amount
of such Allowed Claim divided by (y) the aggregate amount of Allowed Claims in
Class 3. For purposes of determining a Pro Rata Share, the Claims (both Disputed
Claims and Allowed Claims) in each Subclass of Class 3 shall be aggregated.
1.53 RELEASEES means, collectively, (i) any director, officer,
agent or employee of each Debtor who was employed or otherwise serving in such
capacity on the Confirmation Date, (ii) the Committee, and (iii) any member of
the Committee, any member, director, officer, agent or employee of a member of
the Committee, or each Debtor's or the Committee's attorneys or advisors, in
each case who were acting, employed or otherwise serving in such capacity on the
Confirmation Date.
1.54 REORGANIZED DEBTOR means each Debtor on or after the
Effective Date.
1.55 SCHEDULE OF ASSUMED CONTRACTS means the schedule listing
the executory contracts and unexpired leases to be assumed by each Debtor, to be
filed in the Plan Supplement.
1.56 SCHEDULES means the schedules of assets and liabilities
and the statement of financial affairs filed by each Debtor under section 521 of
the Bankruptcy Code, Bankruptcy Rule 1007 and the Official Bankruptcy Forms of
the Bankruptcy Rules, as such schedules and statements have been or may be
supplemented or amended through the Confirmation Date.
1.57 SECURED CLAIM means a Claim to the extent (i) secured by
Collateral, the amount of which is equal to or less than the value of such
Collateral (A) as set forth in this Plan, (B) as agreed to by the holder of such
Claim and the applicable Debtor(s), or (C) as determined by a Final Order in
accordance with section 506(a) of the Bankruptcy Code, or (ii) secured by the
amount of any rights of setoff of the holder thereof under section 553 of the
Bankruptcy Code.
1.58 SETTLEMENT AMOUNT means the amount for which the CCA
Secured Claim can be fully discharged, in accordance with the CCA Settlement
Agreement.
1.59 SUBCLASS means a subclass of a Class of Claims or Equity
Interests established pursuant to Section 3.
-8-
1.60 SUBCLASS DEBTOR means, with respect to any Subclass of
Claims or Equity Interests, the Debtor against or in which such Claims or Equity
Interests are Allowed.
1.61 SUBORDINATED CLAIM means any Claim against a Debtor,
whether secured or unsecured, for any fine, penalty, forfeiture, attorneys' fees
(to the extent that such attorneys' fees are punitive in nature), or for
multiple, exemplary or punitive damages, to the extent that such fine, penalty,
forfeiture, attorneys' fees or damages are not compensation for actual pecuniary
loss suffered by the holder of such Claim and not statutorily prescribed, and
all claims against either of the Debtors of the type described in Section 510(b)
of the Bankruptcy Code relating to equity interests (including all Equity
Interests).
1.62 TORT CLAIM means any Claim related to personal injury,
property damage, products liability, wrongful death, employment litigation or
other similar Claims against either of the Debtors arising out of events that
occurred, in whole or in part, prior to the Commencement Date, which have not
previously been compromised and settled or otherwise resolved.
B. INTERPRETATION; APPLICATION OF DEFINITIONS AND RULES OF
CONSTRUCTION.
Unless otherwise specified, all section or exhibit references
in this Plan are to the respective section in, or exhibit to, this Plan, as the
same may be amended, waived or modified from time to time. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to this
Plan as a whole and not to any particular section, subsection or clause
contained therein. A term used herein that is not defined herein shall have the
meaning assigned to that term in the Bankruptcy Code. The rules of construction
contained in section 102 of the Bankruptcy Code shall apply to this Plan. The
headings in this Plan are for convenience of reference only and shall not limit
or otherwise affect the provisions hereof.
SECTION 2. ADMINISTRATIVE EXPENSE CLAIMS AND PRIORITY
TAX CLAIMS
2.1 ADMINISTRATIVE EXPENSE CLAIMS.
Except to the extent that the applicable Debtor and a holder
of an Allowed Administrative Expense Claim agree to a different treatment, each
Debtor shall pay to each holder of an Allowed Administrative Expense Claim
against such Debtor, in full satisfaction of such Claim, Cash in an amount equal
to such Claim on, or as soon thereafter as is reasonably practicable, the later
of (i) the Effective Date and (ii) the first Business Day after the date that is
thirty (30) calendar days after the date such
-9-
Administrative Expense Claim becomes an Allowed Administrative Expense Claim;
provided, however, that Allowed Administrative Expense Claims representing
liabilities incurred in the ordinary course of business by such Debtor, as a
debtor-in-possession, or liabilities arising under loans or advances to or other
obligations incurred by such Debtor, as debtor-in-possession, whether or not
incurred in the ordinary course of business, shall be paid by such Debtor in the
ordinary course of business, consistently with past practice and in accordance
with the terms and subject to the conditions of any agreements governing,
instruments evidencing, or other documents relating to such transactions.
2.2 COMPENSATION AND REIMBURSEMENT CLAIMS.
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 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 later 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 Debtors. Each
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.
2.3 PRIORITY TAX CLAIMS.
Except to the extent that a holder of an Allowed Priority Tax
Claim and the applicable 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. All Allowed Priority Tax Claims
that are not due and payable on or before the Effective Date shall be paid in
the ordinary course of business as such obligations become due.
SECTION 3. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
This Plan constitutes a separate chapter 11 plan of
reorganization for each Debtor. Except for Administrative Expense Claims and
Priority Tax Claims, all Claims against and Equity Interests in a particular
Debtor are placed in the following Classes for
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each of the Debtors. In accordance with section 1123(a)(1) of the Bankruptcy
Code, Administrative Expense Claims and Priority Tax Claims, as described in
Section 2, have not been classified and thus are excluded from the following
Classes.
The following table designates the Classes of Claims against
and Equity Interests in each Debtor (as and to the extent that such Class of
Claims or Equity Interests is applicable to such Debtor) and specify which of
those Classes are (i) impaired or unimpaired by this Plan and (ii) entitled to
vote to accept or reject this Plan in accordance with section 1126 of the
Bankruptcy Code or deemed to reject this Plan.
3.1 CLASSES.
<Table>
<Caption>
CLASS DESIGNATION IMPAIRMENT ENTITLED TO VOTE
----- ----------- ---------- ----------------
CLASS 1
SUBCLASS 1-A CCA Secured Claim Unimpaired No (deemed to accept)
SUBCLASS 1-B Miscellaneous Secured Claims Impaired Yes
CLASS 2 Priority Non-Tax Claims Unimpaired No (deemed to accept)
CLASS 3 General Unsecured Claims Impaired Yes
CLASS 4 Intentionally Omitted
CLASS 5 Convenience Claims Impaired Yes
CLASS 6 Intentionally Omitted
CLASS 6A
CLASS 7 Intentionally Omitted
CLASS 8 Intentionally Omitted
CLASS 9 Equity Interests Unimpaired No (deemed to accept)
CLASS 10 Intentionally Omitted
CLASS 11 Subordinated Claims Impaired No (deemed to reject)
</Table>
3.2 SUBCLASSES FOR CLASS 1.
For convenience of identification, this Plan classifies the
Allowed Claims in Class 1 as a single Class. This Class is actually a group of
two Subclasses, the CCA Secured Claim Subclass and the Miscellaneous Secured
Claims Subclass. The treatment of the Claims in the CCA Secured Claim Subclass
is the contractual treatment as provided for in the CCA Settlement Agreement
and, as such, Subclass 1-A is unimpaired. The treatment of the Miscellaneous
Secured Claims Subclass depends upon the Collateral securing such Allowed
Claims. Each Subclass is treated under this Plan as a separate class for voting
and distribution purposes.
3.3 SUBCLASSES FOR CLASS 3.
For convenience of identification, this Plan classifies the
Allowed Claims in Class 3 as a single Class. This Class is actually a group of
two Subclasses, one for the
-11-
Allowed Class 3 Claims against each Debtor. Although each Subclass is treated
under this Plan as a separate class for voting purposes, each of the holders of
claims in each Subclass will receive, as a distribution under this Plan, its Pro
Rata Share from the aggregate amount of Cash in the Class 3 Cash Pool.
SECTION 4. TREATMENT OF CLAIMS AND EQUITY INTERESTS
In full satisfaction and discharge of all of the Claims
against or Equity Interests in the Debtors:
4.1 SECURED CLAIMS (CLASS 1).
(a) On or as soon as reasonably practicable after the
Effective Date, each holder of an Allowed Claim in a Class 1 Subclass shall
receive (i) the treatment specified for such Subclass in the following table,
except to the extent that a holder of an Allowed Claim in such Subclass and the
applicable Debtor have agreed to a different treatment, or (ii) such other
treatment as the Bankruptcy Court shall approve in connection with confirmation
of applicable Debtor's Plan through a "cram down" of such Subclass under section
1129(b) of the Bankruptcy Code.
<Table>
<Caption>
SUBCLASS DESIGNATION TREATMENT
- -------- ----------- ---------
1-A CCA Secured Claim Satisfaction of Settlement Amount pursuant
to the terms of the CCA Settlement
Agreement.
1-B Miscellaneous Secured
Claims At the election of the applicable Debtor,
holder will receive (i) Cash equal to 100%
of the amount of the Allowed Claim; (ii) the
net proceeds of sale of collateral up to the
amount of Allowed Claim; (iii) the
collateral securing the Allowed Claim; (iv)
a note with periodic Cash payments having a
present value equal to the amount of the
Allowed Claim and secured by the existing
collateral; (v) such treatment that leaves
unaltered the legal, equitable and
contractual rights of the holder; or (vi)
such other distribution as is necessary to
satisfy the requirements of the Bankruptcy
Code. In the event that a Debtor treats a
Claim as described under clause (i) or (ii),
the liens securing the Claim will be deemed
released.
</Table>
(b) Subclass 1-A Claims are unimpaired and the holder of such
Claims in Subclass 1-A is deemed to accept the Plan.
(c) Subclass 1-B Claims are impaired, and any holders of
Allowed Claims in Subclass 1-B are entitled to vote to accept or reject this
Plan. In the event that Subclass 1-B rejects this Plan, the applicable Subclass
Debtor(s) reserves the right to request, pursuant to Section 13.10, confirmation
of its Plan through a "cram down" of
-12-
such Subclass under section 1129(b) of the Bankruptcy Code and modification of
the Plan to the extent, if any, confirmation under section 1129(b) requires
modification.
4.2 PRIORITY NON-TAX CLAIMS (CLASS 2).
On or as soon as reasonably practicable after the Effective
Date, to the extent not already paid, each holder of an Allowed Claim in Class 2
shall receive Cash equal to the amount of the Allowed Claim, except to the
extent that a holder of an Allowed Claim in Class 2 and the applicable Debtor
have agreed to a different treatment.
4.3 GENERAL UNSECURED CLAIMS (CLASS 3).
(a) On or as soon as reasonably practicable after the
Effective Date, each holder of an Allowed Claim in Class 3 (other than an
Allowed Inter-Company Claim) shall receive its Pro Rata Share of the Class 3
Cash Pool.
(b) No Class 3 distribution will be made on account of Allowed
InterCompany Claims. Each holder of an Allowed Inter-Company Claim will be
deemed to have contributed its Allowed Claim as part of the Class 9 treatment.
(c) Any Tort Claim determined and liquidated pursuant to a
judgment obtained in accordance with Section 8.1(b) and applicable
non-bankruptcy law, which is no longer appealable or subject to review, shall be
deemed an Allowed Claim in Class 3 against the applicable Debtor in such
liquidated amount, provided that only the amount of such Allowed Claim that is
less than or equal to the Debtor's self-insured retention or deductible in
connection with the applicable insurance policy and is not satisfied from
proceeds of insurance payable to the holder of such Allowed Claim under the
Debtor's insurance policies shall be treated as an Allowed Claim for the
purposes of distributions under this Plan.
4.4 INTENTIONALLY OMITTED
4.5 CONVENIENCE CLAIMS (CLASS 5).
On or as soon as reasonably practicable after the Effective
Date, each holder of an Allowed Claim in Class 5 shall be paid an amount in Cash
equal to one-hundred percent (100%) of such Allowed Claim; provided, however,
that, in the sole discretion of the applicable Debtor, such Cash payment may be
made by the Debtors in one or more installment payments over a period not to
exceed twelve (12) months after the Effective Date.
-13-
4.6 INTENTIONALLY OMITTED
4.7 INTENTIONALLY OMITTED
4.8 EQUITY INTERESTS (CLASS 9). Except as may otherwise be
determined by the applicable Debtor, including, without limitation, the transfer
of Equity Interests to affiliates of the Debtors, the legal, equitable and
contractual rights of holders of Equity Interests in Class 9 shall remain
unaltered. Such Equity Interests shall be unimpaired and reinstated under this
Plan as of the Effective Date and shall not be deemed cancelled.
4.9 INTENTIONALLY OMITTED
4.10 SUBORDINATED CLAIMS (CLASS 11).
No property will be distributed to or retained by the holders
of Allowed Claims in Class 11 on account of such Allowed Claims. All Allowed
Claims in Class 11 shall be discharged as of the Effective Date.
SECTION 5. ACCEPTANCE OR REJECTION OF PLAN
5.1 VOTING OF CLAIMS.
Each holder of an Allowed Claim in an impaired Class or
Subclass of Claims (other than Class 11) shall be entitled to vote to accept or
reject this Plan. For purposes of calculating the number of Allowed Claims in a
Class of Claims that have voted to accept or reject this Plan under section
1126(c) of the Bankruptcy Code, all Allowed Claims in such Class held by one
entity or any affiliate thereof (as defined in the Securities Act of 1933 and
the rules and regulations promulgated thereunder) shall be aggregated and
treated as one Allowed Claim in such Class.
5.2 ACCEPTANCE BY A CLASS.
Consistent with section 1126(c) of the Bankruptcy Code and
except as provided for in section 1126(e) of the Bankruptcy Code, a Class of
Claims shall have accepted this Plan if it is accepted by at least two-thirds in
dollar amount, and more than one-half in number of the holders, of Allowed
Claims of such Class that have timely and properly voted to accept or reject
this Plan.
5.3 PRESUMED ACCEPTANCE OF PLAN.
Any Class that is unimpaired under this Plan is conclusively
presumed to accept this Plan.
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5.4 PRESUMED REJECTION OF PLAN.
In accordance with section 1126 of the Bankruptcy Code,
holders of Allowed Claims in Class 11 are conclusively presumed to reject this
Plan and the votes of such holders will not be solicited with respect to such
Claims.
SECTION 6. MEANS FOR IMPLEMENTATION
6.1 EXIT FINANCING.
On the Effective Date, the Reorganized Debtors (and their
designees, including the Exit Financing Borrowers and any other newly created
borrowing entities) are authorized to enter into the Exit Financing Agreements,
which authorization shall include, without limitation, the creation of the Exit
Financing Borrowers and any other special purpose borrowing entities to enter
into the Exit Financing Agreements in place of the Reorganized Debtors, and the
transfer of assets to the Exit Financing Borrowers and any other newly created
borrowing entities. All Cash necessary for the Reorganized Debtors to make
payments pursuant to this Plan will be obtained from Lodgian, Inc., the cash
balances, operations and borrowings under the Exit Financing Agreements of the
Reorganized Debtors (and their designees, including the Exit Financing Borrowers
and any other newly created borrowing entities).
In furtherance of the transactions contemplated by this Plan
and the Exit Financing Agreements, the Reorganized Debtors (and their designees,
including the Exit Financing Borrowers and any other newly created borrowing
entities) are authorized to sell one or more of their assets (including, without
limitation, hotel properties).
6.2 INTENTIONALLY OMITTED
6.3 INTENTIONALLY OMITTED
6.4 WAIVER OF SUBORDINATION.
The distributions under this Plan take into account the
relative priority of the Claims in each Class in connection with any
contractual, legal and equitable subordination rights or provisions relating
thereto. Accordingly, the distributions under this 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 this 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 this Plan.
-15-
6.5 INTENTIONALLY OMITTED
6.6 INTENTIONALLY OMITTED
6.7 INTENTIONALLY OMITTED
6.8 INTENTIONALLY OMITTED
6.9 EXECUTIVE OFFICERS.
(a) Prior to the confirmation of this Plan, in accordance with
section 1129(a)(5) of the Bankruptcy Code, the Debtors shall disclose (i) the
identity and affiliations of any individual proposed to serve, after the
Effective Date, as an officer of the Reorganized Debtors, and (ii) the identity
of any "insider" (as such term is defined in section 101(31) of the Bankruptcy
Code) who shall be employed and retained by the Reorganized Debtors and the
nature of any compensation for such insider.(1)
(b) The officers of the Debtors immediately before the
Effective Date shall continue to serve immediately after the Effective Date in
their respective capacities as officers of the Reorganized Debtors.
6.10 AMENDED ORGANIZATIONAL DOCUMENTS.
On the Effective Date, the Reorganized Debtors are authorized
to, and shall, without the need for any further corporate action, adopt and, as
applicable, file their respective Amended Organizational Documents with the
applicable Secretary of State. The Amended Organizational Documents shall
prohibit the issuance of nonvoting equity securities, as required by sections
1123(a) and (b) of the Bankruptcy Code, subject to further amendment as
permitted by applicable law.
6.11 INTENTIONALLY OMITTED
6.12 AUTHORIZATION OF NOTES.
On the Effective Date, the applicable Reorganized Debtors, the
Exit Financing Borrowers, and any other any newly created subsidiaries are
authorized to issue and execute and deliver all notes and related financing
documents expressly required under this Plan, including without limitation, any
such notes and documents relating to any Allowed Claims in Class 1-B without the
need for any further corporate action.
- ---------------
(1) There are no directors of Impac Hotels II, L.L.C. and Impac Hotels III,
L.L.C., as they are member-managed entities.
-16-
6.13 INTENTIONALLY OMITTED
SECTION 7. DISTRIBUTIONS
7.1 DISTRIBUTION RECORD DATE.
As of the close of business on the Distribution Record Date,
the applicable Debtor's books and records for each of the Classes of Claims as
maintained by such Debtor or its respective agent, shall be deemed closed, and
there shall be no further changes in the record holders of any of the Claims.
The applicable Debtor shall have no obligation to recognize any transfer of
Claims occurring on or after the Distribution Record Date. The applicable Debtor
shall be entitled to recognize and deal for all purposes hereunder only with
those record holders stated in the books and records of the applicable Debtor or
its respective agent, as of the close of business on the Distribution Record
Date, to the extent applicable.
7.2 DATE OF DISTRIBUTIONS.
Unless otherwise provided herein, any distributions and
deliveries to be made hereunder shall be made on the Effective Date or as soon
thereafter as is practicable. In the event that any payment or act under this
Plan is required to be made or performed on a date that is not a Business Day,
then the making of such payment or the performance of such act may be completed
on or as soon as reasonably practicable on the next succeeding Business Day, but
shall be deemed to have been completed as of the initial due date.
7.3 DISTRIBUTIONS TO CLASSES.
(a) The Disbursing Agent shall distribute to the applicable
agent and/or recordholder for the individual holders of the applicable Allowed
Claims 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 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 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 a 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.
-17-
7.4 DISBURSING AGENT.
(a) The source of the Cash to be distributed under this Plan
shall be either (i) the proceeds of the Exit Financing, or (ii) a capital
contribution from Lodgian, Inc. to each Debtor to allow such Debtor to discharge
the Claims against it.
(b) All distributions under this Plan shall be made by the
applicable Reorganized Debtor as Disbursing Agent (or such other entity
designated by the Reorganized Debtor as a Disbursing Agent on or after the
Effective Date).
(c) A Disbursing Agent shall not be required to give any bond
or surety or other security for the performance of its duties unless otherwise
ordered by the Bankruptcy Court, and, in the event that a Disbursing Agent is so
otherwise ordered, all costs and expenses of procuring any such bond or surety
shall be borne by the applicable Reorganized Debtor.
7.5 RIGHTS AND POWERS OF DISBURSING AGENT.
The Disbursing Agent shall be empowered to (i) effect all
actions and execute all agreements, instruments and other documents necessary to
perform its duties under this Plan, (ii) make all distributions contemplated
hereby, (iii) employ professionals to represent it with respect to its
responsibilities and (iv) exercise such other powers as may be vested in the
Disbursing Agent by order of the Bankruptcy Court, pursuant to this Plan, or as
deemed by the Disbursing Agent to be necessary and proper to implement the
provisions hereof.
7.6 INTENTIONALLY OMITTED
7.7 DELIVERY OF DISTRIBUTIONS.
Distributions to holders of Allowed Claims shall be made at
the address of each such holder as set forth on the Schedules filed with the
Bankruptcy Court unless superseded by the address as set forth on the proofs of
claim and equity interest filed by such holders or other writing notifying the
applicable Reorganized Debtor of a change of address. If any holder's
distribution is returned as undeliverable, notice shall be given to the
Committee and no further distributions to such holder shall be made unless and
until the applicable Reorganized Debtor is notified of such holder's then
current address, at which time all missed distributions shall be made to such
holder, without interest. All claims for undeliverable distributions shall be
made on or before one hundred and twenty (120) days after the date such
undeliverable distribution was initially made. After such date, all unclaimed
property shall, in the applicable Reorganized Debtor's discretion, be used to
satisfy the costs of administering and fully consummating this Plan or become
property of the applicable Reorganized Debtor, and the holder of any such Claim
shall
-18-
not be entitled to any other or further distribution under this Plan on account
of such Claim.
7.8 MANNER OF PAYMENT UNDER PLAN.
(a) All distributions of Cash to the holders of Allowed Claims
against each of the Debtors under this Plan shall be made by, or on behalf of,
the applicable Reorganized Debtor. Any distributions that revert to the
applicable Reorganized Debtor or are otherwise canceled (such as pursuant to
Section 7.7) shall revest solely in the applicable Reorganized Debtor.
(b) At the option of the applicable Reorganized Debtor, any
Cash payment to be made hereunder may be made by a check or wire transfer or as
otherwise required or provided in applicable agreements.
7.9 RETENTION OF EQUITY INTERESTS.
Upon the Effective Date, except as otherwise agreed by the
applicable Debtor, the Class 9 Equity Interests shall be automatically
reinstated as set forth in Section 4.8 above. As such, except as otherwise
agreed by the applicable Debtor, no actions need be taken to implement the
distributions of the reinstated Equity Interests of each of the Reorganized
Debtors.
7.10 DE MINIMIS DISTRIBUTIONS.
The applicable Reorganized Debtor as Disbursing Agent or such
other entity designated by such Reorganized Debtor as a Disbursing Agent on or
after the Effective Date will not be required to distribute Cash to the holder
of an Allowed Claim in an impaired Class if the amount of Cash to be distributed
on any distribution date under the Plan (including the Effective Date and the
Final Distribution Date) on account of such Claim is less than $50. Any holder
of an Allowed Claim on account of which the amount of Cash to be distributed is
less than $50 will have its Claim for such distribution discharged and will be
forever barred from asserting any such Claim against the Reorganized Debtors or
their respective property. Any Cash not distributed pursuant to this Section
7.10 will become the property of the Reorganized Debtors, free of any
restrictions thereon, and any such Cash held by a third-party Disbursing Agent
will be returned to the Reorganized Debtors.
7.11 SETOFFS.
Each Debtor may, in accordance with the provisions of this
Plan, section 553 of the Bankruptcy Code and applicable non-bankruptcy law, set
off against any Allowed Claim and the distributions to be made pursuant to this
Plan on account of such Allowed Claim (before any distribution is made on
account of such Allowed Claim), the
-19-
Claims, rights and causes of action of any nature that such Debtor may hold
against the holder of such Allowed Claim; provided, however, that neither the
failure to effect such a setoff nor the allowance of any Claim hereunder shall
constitute a waiver or release by the applicable Debtor of any such Claims,
rights and causes of action that the applicable Debtor may possess against such
holder; and provided further, however, that any Claims of each Debtor arising
before the Commencement Date shall first be setoff against Claims against such
Debtor arising before the Commencement Date.
7.12 ALLOCATION OF PLAN DISTRIBUTION BETWEEN PRINCIPAL AND
INTEREST.
All distributions in respect of any Allowed Claim shall be
allocated first to the principal amount of such Allowed Claim, as determined for
federal income tax purposes, and thereafter, to the remaining portion of such
Allowed Claim, if any.
7.13 WITHHOLDING AND REPORTING REQUIREMENTS.
In connection with this Plan and all instruments issued in
connection therewith and distributed thereon, the applicable Debtor shall comply
with all applicable withholding and reporting requirements imposed by any
federal, state or local taxing authority, and all distributions under this Plan
shall be subject to any such withholding or reporting requirements.
7.14 TIME BAR TO CASH PAYMENTS.
Checks issued by the Reorganized Debtors in respect of Allowed
Claims shall be null and void if not negotiated within sixty (60) days after the
date of issuance thereof. Requests for reissuance of any check shall be made to
the applicable Reorganized Debtor by the holder of the Allowed Claim to whom
such check originally was issued. Any Claim in respect of such a voided check
shall be made on or before thirty (30) days after the expiration of the sixty
day period following the date of issuance of such check. After such date, all
funds held on account of such voided check shall, in the discretion of the
applicable Reorganized Debtor, be used to satisfy the costs of administering and
fully consummating this Plan or become property of the applicable Reorganized
Debtor, and the holder of any such Allowed Claim shall not be entitled to any
other or further distribution under this Plan on account of such Allowed Claim.
7.15 TRANSACTIONS ON BUSINESS DAYS.
If the Effective Date or any other date on which a transaction
may occur under this Plan shall occur on a day that is not a Business Day, the
transactions contemplated by this Plan to occur on such day shall instead occur
on the next succeeding Business Day.
-20-
7.16 CLOSING OF CHAPTER 11 CASES.
When all Disputed Claims filed against the Debtors have become
Allowed Claims or have been disallowed by Final Order, and all distributions in
respect of Allowed Claims have been made in accordance with this Plan, or at
such earlier time as the Reorganized Debtors deem appropriate, the Reorganized
Debtors shall seek authority from the Bankruptcy Court to close their respective
Chapter 11 Cases in accordance with the Bankruptcy Code and the Bankruptcy
Rules.
SECTION 8. PROCEDURES FOR RESOLVING AND TREATING
DISPUTED CLAIMS
8.1 PAYMENTS AND DISTRIBUTIONS WITH RESPECT TO DISPUTED
CLAIMS.
(a) Notwithstanding any other provision hereof, if any portion
of a Claim is a Disputed Claim, no payment or distribution provided hereunder
shall be made on account of such Claim unless and until such Disputed Claim
becomes an Allowed Claim.
(b) All Tort Claims are Disputed Claims. At the applicable
Debtor's option, any unliquidated Tort Claim as to which a proof of claim was
timely filed in the Chapter 11 Cases shall be determined and liquidated in the
administrative or judicial tribunal(s) in which it is pending on the Effective
Date or, if no action was pending on the Effective Date, in any administrative
or judicial tribunal of appropriate jurisdiction. Notwithstanding the foregoing,
at all times prior to or after the Effective Date, the Bankruptcy Court shall
retain jurisdiction relating to Tort Claims, including the applicable Debtor's
right to have such Claims determined and liquidated in the Bankruptcy Court. Any
Tort Claim determined and liquidated pursuant to a judgment obtained in
accordance with this Section 8.1(b) and applicable non-bankruptcy law which is
no longer appealable or subject to review shall be deemed an Allowed Claim in
Class 3 against the applicable Debtor in such liquidated amount, provided that
only the amount of such Allowed Claim that is less than or equal to the Debtor's
self-insured retention or deductible in connection with the applicable insurance
policy and is not satisfied from proceeds of insurance payable to the holder of
such Allowed Claim under the Debtors' insurance policies shall be treated as an
Allowed Claim for the purposes of distributions under this Plan. Nothing
contained in this Section 8.1(b) shall constitute or be deemed a waiver of any
Claim, right or cause of action that the applicable Debtor may have against any
Person in connection with or arising out of any Tort Claim, including, without
limitation, any rights under section 157(b)(5) of title 28 of the United States
Code. This entire Section 8.1(b) is subject to the applicable Debtor's right to
elect to follow the procedures provided for in Section 8.5.
-21-
8.2 PRESERVATION OF INSURANCE.
Nothing in this Plan, including the discharge and release of
the Debtors as provided in this Plan, shall diminish or impair the
enforceability of any insurance policies that may cover Claims against either of
the Debtors.
8.3 RESOLUTION OF DISPUTED CLAIMS.
(a) Unless otherwise ordered by the Bankruptcy Court after
notice and a hearing, and except as otherwise expressly provided for below, each
Debtor, in coordination and consultation with the Committee, shall have the
exclusive right (except as to applications for allowances of compensation and
reimbursement of expenses under sections 330 and 503 of the Bankruptcy Code) to
make and file objections to Claims and shall serve a copy of each objection upon
the holder of the Claim to which the objection is made as soon as practicable,
but in no event later than one hundred and twenty (120) days after the Effective
Date; provided, however, that such one hundred and twenty (120) day period may
be automatically extended by the applicable Debtor, without any further
application to, or approval by, the Bankruptcy Court, for an additional thirty
(30) days with the consent of the Committee (not to be unreasonably withheld).
The foregoing deadlines for filing objections to Claims shall not apply to Tort
Claims and, accordingly, no such deadline shall be imposed by this Plan.
Notwithstanding any authority to the contrary, an objection to a Claim shall be
deemed properly served on the holder thereof if the Debtors effect service in
any of the following manners: (i) in accordance with Federal Rule of Civil
Procedure 4, as modified and made applicable by Bankruptcy Rule 7004; (ii) to
the extent that counsel for the holder is unknown, by first class mail, postage
prepaid, on the signatory on the proof of claim or equity interest or other
representative identified in the proof of claim or equity interest or any
attachment thereto; or (iii) by first class mail, postage prepaid, on any
counsel that has appeared on the holder's behalf in the Chapter 11 Cases.
(b) Notwithstanding the foregoing, the Committee shall also
have the right to make and file objections to Claims filed against any Debtor,
which objections shall be made in consultation with such Debtor(s) and shall be
made within the time frames provided for in this Section 8.3. From and after the
Confirmation Date, subject to the Effective Date, all objections shall be
litigated to a Final Order except to the extent that the applicable Debtor (with
the consent of the Committee not to be unreasonably withheld) or the Committee
(with the consent of the applicable Debtor not to be unreasonably withheld), as
applicable, elects to withdraw any such objection or the applicable Debtor (with
the consent of the Committee not to be unreasonably withheld) or the Committee
(with the consent of the applicable Debtor not to be unreasonably withheld), as
applicable, and the holder of the Disputed Claim elects to compromise, settle or
otherwise resolve any such objection, in which event they may settle, compromise
or otherwise resolve any such Disputed Claim without approval of the
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Bankruptcy Court. At its option, upon the consent of the Committee, the
applicable Debtor may make a single, lump sum payment of the settlement amount
to the claimant. To the extent that an objection is filed by the Committee, at
its option, the Committee, upon the consent of the applicable Debtor, may make a
single, lump sum payment of the settlement amount to the claimant. The
applicable Debtor shall prepare, issue and deliver to the Committee, within
forty-five (45) days following the end of each month, a report with respect to
the status of the resolution of Disputed Claims, in a form to be agreed upon by
the professionals for the applicable Debtor and the Committee.
8.4 DISTRIBUTIONS AFTER ALLOWANCE.
If, on or after the Effective Date, any Disputed Claim
becomes, in whole or in part, an Allowed Claim, the applicable Reorganized
Debtor shall distribute to the holder thereof the distributions, if any, to
which such holder is then entitled under this Plan. Any Cash distributions shall
be made as soon as practicable after the date that the order or judgment of the
Bankruptcy Court allowing such Disputed Claim (or portion thereof) becomes a
Final Order, but in no event more than thirty (30) days thereafter. Any Pro Rata
Share of the Class 3 Cash Pool distributable to the holder of a Disputed Claim
which becomes an Allowed Claim (in whole or in part) as a result of the entry of
such order or judgment of the Bankruptcy Court allowing such Disputed Claim (or
portion thereof) shall be made in accordance with the next scheduled
distribution date to the holders of Allowed Claims.
8.5 RESERVE ACCOUNTS FOR CLASS 3 DISPUTED CLAIMS.
On and after the Effective Date, the Debtors shall hold in the
Disputed Claims Reserve, Cash in an aggregate amount sufficient to pay to each
holder of a Disputed Claim in Class 3 the amount of Cash that such holder would
have been entitled to receive under this Plan if such Claim had been an Allowed
Claim on the Effective Date. Cash withheld and reserved for payments to holders
of Disputed Claims in Class 3 shall be held and deposited by the Debtors in one
or more segregated interest-bearing reserve accounts, as determined by the Plan
Proponents, to be used to satisfy such Claims if and when such Disputed Claims
in Class 3 become Allowed Claims, net of any taxes payable on, or attributable
to, the interest income. To the extent that any portion of the net operating
losses of the Confirmed Debtors are used to offset or satisfy any taxes
otherwise attributable to any such interest, the Confirmed Debtors shall be
reimbursed in the amount of the reduction in such taxes from the Disputed Claims
Reserve. The amount of Cash to be held in the Disputed Claims Reserve shall not
exceed the amount of the Class 3 Cash Pool.
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8.6 INVESTMENT OF DISPUTED CLAIMS RESERVES.
The Plan Proponents shall be permitted, from time to time, in
their discretion to invest all or a portion of the Cash in the Disputed Claims
Reserve in United States Treasury Bills, interest-bearing certificates of
deposit, tax exempt securities or investments permitted by section 345 of the
Bankruptcy Code or otherwise authorized by the Bankruptcy Court, using prudent
efforts to enhance the rates of interest earned on such Cash without inordinate
credit risk or interest rate risk. All interest earned on such Cash shall be
held in the Disputed Claims Reserve and, after satisfaction of any expenses
incurred in connection with the maintenance of the Disputed Claims Reserve,
including taxes payable on, or attributable to, such interest income shall be
transferred out of the Disputed Claims Reserve and, in the discretion of the
Debtors (in consultation with the Committee), be used to satisfy the costs of
administering and fully consummating this Plan. To the extent that any portion
of the net operating losses of the Confirmed Debtors are used to offset or
satisfy any taxes otherwise attributable to any such interest, the Confirmed
Debtors shall be reimbursed in the amount of the reduction in such taxes from
the Disputed Claims Reserve.
8.7 RELEASE OF FUNDS FROM DISPUTED CLAIMS RESERVES.
If at any time or from time to time after the Effective Date,
there shall be Cash in the Disputed Claims Reserves in an amount in excess of
the Debtors' maximum remaining payment obligations to the then existing holders
of Disputed Claims in Class 3 against the Debtors under this Plan, such excess
funds shall revert back to the Debtors.
8.8 ESTIMATION OF CLAIMS.
The applicable Debtor or the Committee may, at any time, and
in consultation with each other, request that the Bankruptcy Court estimate any
contingent, unliquidated or Disputed Claim pursuant to section 502(c) of the
Bankruptcy Code, regardless of whether the applicable Debtor previously objected
to such Claim or whether the Bankruptcy Court has ruled on any such objection,
and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any
time during litigation concerning any objection to any Claim, including, without
limitation, during the pendency of any appeal relating to any such objection. In
the event that the Bankruptcy Court estimates any contingent, unliquidated or
Disputed Claim, the amount so estimated shall constitute either the allowed
amount of such Claim or a maximum limitation on such Claim, as determined by the
Bankruptcy Court. If the estimated amount constitutes a maximum limitation on
the amount of such Claim, the applicable Debtor or the Committee may pursue
supplementary proceedings to object to the allowance of such Claim. All of the
aforementioned objection, estimation and resolution procedures are intended to
be cumulative and not exclusive of one another. On and after the Confirmation
Date, subject to the Effective Date, Claims which have been estimated may be
subsequently
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compromised, settled, withdrawn or otherwise resolved without further order of
the Bankruptcy Court.
8.9 NO RECOURSE.
No holder of any Disputed Claim that becomes an Allowed Claim
in any applicable Class shall have recourse against any Disbursing Agent, the
Debtors, the Confirmed Debtors, the Committee, the Reorganized Debtors or any
other holder of an Allowed Claim in such Class, or any of their respective
professional consultants, officers, directors or members of their successors or
assigns, or any of their respective property, if the Cash allocated to such
Class and not previously distributed is insufficient to provide a distribution
to such holder in the same proportion to that received by other holders of
Allowed Claims in such Class. However, nothing in this Plan shall modify any
right of a holder of a Claim under section 502(j) of the Bankruptcy Code.
8.10 MEDIATION OF DISPUTED CLAIMS.
The automatic stay of section 362 of the Bankruptcy Code shall
remain in effect after the Effective Date with respect to all Disputed Claims.
All holders of Disputed Claims (other than Tort Claims) shall comply with the
following procedures:
(a) At its option, the applicable Debtor may (i) request that
the holder of a Disputed Claim provide documentation to evidence the validity
and amount of such Claim, and/or (ii) submit a written counter-proposal to the
holder of a Disputed Claim. In lieu of, or in addition to, the foregoing, the
applicable Debtor may file an objection to such Disputed Claim.
(b) The holder of a Disputed Claim may accept the applicable
Debtor's counter-proposal at any time within fourteen (14) days of the
applicable Debtor's mailing of such counter-proposal.
(c) If no settlement is reached pursuant to paragraphs (a) and
(b) above, the applicable Debtor, at its discretion (in consultation with the
Committee), shall have the option to require the holder of a Disputed Claim to
participate in a non-binding mediation process. All mediation pursuant to this
Section 8.7 shall be conducted at the applicable Debtor's option in either
Atlanta, Georgia or New York, New York, pursuant to the Local Bankruptcy Rules
of the Bankruptcy Court. In the event that a mediation is scheduled and the
holder of the Disputed Claim does not participate in the mediation, the Disputed
Claim shall be disallowed in its entirety.
(d) If the applicable Debtor and the holder of a Disputed
Claim are unable to reach an agreement on a Claim amount pursuant to the
procedures set forth above, the Disputed Claim shall be submitted to the
Bankruptcy Court for resolution. If it is determined that the United States
Bankruptcy Court for the Southern District of New
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York does not have jurisdiction to resolve any Disputed Claim, then the Disputed
Claim shall be submitted to the United States District Court for the Southern
District of New York for resolution.
(e) The applicable Debtor (with the consent of the Committee
not to be unreasonably withheld) and the holder of a Disputed Claim may seek to
settle, compromise or otherwise resolve any Disputed Claim at any time in
accordance with this Plan or any order of the Bankruptcy Court approving a
settlement procedure for Disputed Claims for the applicable Debtor and the
Committee.
(f) At its option, the applicable Debtor may require the
holder of a Disputed Tort Claim to either (i) comply with the mediation
procedures provided for in this Section 8.7 or (ii) comply with any other
separate mediation and/or arbitration procedures approved in the Chapter 11
Cases relating to Tort Claims.
SECTION 9. EXECUTORY CONTRACTS AND UNEXPIRED LEASES
9.1 GENERAL TREATMENT.
On the Effective Date, all executory contracts and unexpired
leases to which each 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 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 Bankrup tcy Code by the applicable Debtor on or before the Effective
Date.
9.2 CURE OF DEFAULTS.
(a) Except to the extent that a different treatment has been
agreed to by the non-Debtor party or parties to any executory contract or
unexpired lease to be assumed pursuant to Section 9.1 hereof, the applicable
Debtor shall, pursuant to the provisions of sections 1123(a)(5)(G) and
1123(b)(2) of the Bankruptcy Code and consistently with the requirements of
section 365 of the Bankruptcy Code, within thirty (30) days after the Effective
Date, file and serve a pleading 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 Debtor shall have fifteen (15) days from service to object to the
cure amounts listed by the applicable Debtor. If there are any objections filed,
the Bankruptcy Court
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shall hold a hearing. The applicable 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 Debtors shall have the right to reject
such executory contract or unexpired lease.
(b) Subject to Section 9.1 of this Plan, the executory
contracts and unexpired leases on the Schedule of Assumed Contracts shall be
assumed by the respective Debtors as indicated on such Schedule. Except as may
otherwise be ordered by the Bankruptcy Court, the Debtors shall have the right
to cause any assumed executory contract or unexpired lease to vest in the
Reorganized Debtor designated for such purpose by the Debtors.
9.3 ASSUMPTIONS AND ASSIGNMENTS OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES.
In furtherance of the Exit Financing Agreements, pursuant to
sections 365 and 1123(a)(5) of the Bankruptcy Code, the 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 this Plan. Entry of the 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 Debtors' Exit
Financing, such assumptions and assignments are in the best interests of the
Debtors and their Estates.
9.4 APPROVAL OF REJECTION OF EXECUTORY CONTRACTS AND
UNEXPIRED LEASES.
Entry of the Confirmation Order shall constitute the approval,
pursuant to section 365(a) of the Bankruptcy Code, of the rejection of any
executory contracts and unexpired leases to be rejected as and to the extent
provided in Section 9.1 of this Plan.
9.5 BAR DATE FOR FILING PROOFS OF CLAIM RELATING TO EXECUTORY
CONTRACTS AND UNEXPIRED LEASES REJECTED PURSUANT TO PLAN.
Claims arising out of the rejection of an executory contract
or unexpired lease pursuant to Section 9.1 of this Plan must be filed with the
Bankruptcy Court no later than twenty (20) days after the Effective Date. Any
Claims not filed within such time
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period will be forever barred from assertion against either of the applicable
Debtors and/or the Estates.
9.6 SURVIVAL OF DEBTORS' CORPORATE INDEMNITIES.
Any obligations of any of the Debtors pursuant to the
applicable 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 Debtor or such
Releasee, based upon any act or omission for or on behalf of such Debtor, shall
not be discharged or impaired by confirmation of this Plan. Such obligations
shall be deemed and treated as executory contracts to be assumed by the
applicable Debtor pursuant to this Plan, and shall continue as obligations of
the applicable Reorganized Debtor.
SECTION 10. CONDITIONS PRECEDENT TO EFFECTIVE DATE
10.1 CONDITIONS TO EFFECTIVE DATE.
The following are conditions precedent to the Effective Date:
(a) The Bankruptcy Court shall have entered the Confirmation
Order in form and substance satisfactory to the Plan Proponents;
(b) No stay of the Confirmation Order shall then be in
effect; and
(c) All documents, instruments and agreements, including,
without limitation, the Exit Financing Agreements, in form and substance
satisfactory to the Plan Proponents, provided for under or necessary to
implement this Plan shall have been executed and delivered by the parties
thereto, unless such execution or delivery has been waived by the parties
benefited thereby.
10.2 WAIVER OF CONDITIONS.
The Plan Proponents may waive the conditions to effectiveness
of this Plan set forth in Section 10.1(c) of this Plan without leave of or
notice to the Bankruptcy Court and without any formal action other than
proceeding with confirmation of this Plan
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SECTION 11. EFFECT OF CONFIRMATION
11.1 VESTING OF ASSETS.
Upon the Effective Date, pursuant to sections 1141(b) and (c)
of the Bankruptcy Code, except for leases and executory contracts that have not
yet been assumed or rejected (which leases and contracts shall be deemed vested
when and if assumed), all property of each Debtor's Estate shall vest in each of
the applicable Exit Financing Borrowers and any other newly created subsidiaries
of the Reorganized Debtors free and clear of all Claims, liens, encumbrances,
charges and other interests, except as provided herein. Each Reorganized Debtor
is authorized to execute the necessary documentation to effectuate the vesting
of property in the Exit Financing Borrowers or any other newly created
subsidiaries. Each Reorganized Debtor may operate its businesses and may use,
acquire and dispose of property free of any restrictions of the Bankruptcy Code
or the Bankruptcy Rules and in all respects as if there were no pending cases
under any chapter or provision of the Bankruptcy Code, except as provided
herein.
11.2 DISCHARGE OF CLAIMS.
Except as otherwise provided herein or in the Confirmation
Order, the rights afforded in this 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 Debtors or any of
their assets or properties to the fullest extent permitted by section 1141 of
the Bankruptcy Code. Except as provided in this Plan, on the Effective Date, all
existing Claims against each of the 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 then Reorganized 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.
11.3 DISCHARGE OF DEBTORS.
Upon the Effective Date and in consideration of the
distributions to be made hereunder, except as otherwise expressly provided
herein, 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 Debtors, to the fullest extent permitted by
section 1141 of the Bankruptcy Code, of and from any and all Claims, Equity
Interests, 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 Debtors.
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11.4 BINDING EFFECT.
Except as otherwise provided in section 1141(d)(3) of the
Bankruptcy Code, on and after the Confirmation Date, and subject to the
Effective Date, the provisions of this Plan shall bind any holder of a Claim
against the applicable Debtor and its respective successors and assigns, whether
or not the Claim of such holder is impaired under this Plan and whether or not
such holder has accepted this Plan.
11.5 TERM OF INJUNCTIONS OR STAYS.
Unless otherwise provided herein, all injunctions or stays
arising 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.
11.6 INJUNCTION AGAINST INTERFERENCE WITH PLAN.
Upon the entry of the Confirmation Order, all holders of
Claims and other parties in interest, along with their respective present or
former employees, agents, officers, directors or principals, shall be enjoined
from taking any actions to interfere with the implementation or consummation of
this Plan.
11.7 EXCULPATION.
None of the Debtors nor any Releasee shall have or incur any
liability to any holder of a Claim or Equity Interest for any act or omission
(and in the case of any director, officer, agent or employee of any Debtor who
was employed or otherwise serving in such capacity on the Confirmation Date, any
claims against such Persons) in connection with, or arising out of, the Chapter
11 Cases, the pursuit of confirmation of this Plan, transactions or
relationships with the applicable Debtor (either prior to or after the
Commencement Date), the consummation of this Plan, the administration of this
Plan or the property to be distributed under this Plan, except for willful
misconduct or gross negligence, and, in all respects, the Plan Proponents and
such Persons shall be entitled to rely upon the advice of counsel with respect
to their duties and responsibilities during the Chapter 11 Cases and under this
Plan.
11.8 RIGHTS OF ACTION.
On and after the Effective Date, and except as may otherwise
be agreed to by the Plan Proponents, the Reorganized Debtors will retain and
have the exclusive right to enforce any and all present or future rights, claims
or causes of action against any Person and rights of the Reorganized Debtors
that arose before or after the Commencement Date, including, but not limited to,
rights, claims, causes of action,
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avoiding powers, suits and proceedings arising under sections 544, 545, 548,
549, 550 and 553 of the Bankruptcy Code. The Reorganized Debtors may pursue,
abandon, settle or release any or all such rights of action, as they deem
appropriate, without the need to obtain approval or any other or further relief
from the Bankruptcy Court. The Reorganized Debtors may, in their discretion,
offset any such claim held against a Person against any payment due such Person
under this Plan; provided, however, that any claims of any of the Reorganized
Debtors arising before the Commencement Date shall first be offset against
Claims against any of the Reorganized Debtors arising before the Commencement
Date.
11.9 RELEASE BY DEBTORS.
From and after the Effective Date, the Releasees shall be
released by each Debtor from any and all claims (as defined in section 101(5) of
the Bankruptcy Code), obligations, suits, judgments, damages, rights, causes of
action and liabilities whatsoever, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, in law, equity or otherwise, that any
Debtor is entitled to assert in its own right or on behalf of the holder of any
Claim or Equity Interest or other Person, based in whole or in part upon any act
or omission, transaction, agreement, event or other occurrence taking place on
or prior to the Effective Date in any way relating to any Debtor, the Chapter 11
Cases or the negotiation, formulation and preparation of this Plan or any
related document, except for (i) claims or causes of action against any Releasee
resulting from the willful misconduct or gross negligence of such Releasee and
(ii) claims against or liabilities of directors, officers or employees of any
Debtor in respect of any loan, advance or similar payment by any Debtor to any
such Person or any contractual obligation owed by such Person to any Debtor.
11.10 RELEASE OF RELEASEES BY OTHER RELEASEES.
From and after the Effective Date, the Releasees shall release
each other from any and all claims (as defined in section 101(5) of the
Bankruptcy Code), obligations, suits, judgments, damages, rights, causes of
action and liabilities whatsoever, whether known or unknown, foreseen or
unforeseen, existing or hereafter arising, in law, equity or otherwise, that any
Releasee is entitled to assert against any other Releasee, based in whole or in
part upon any act or omission, transaction, agreement, event or occurrence
taking place on or before the Effective Date in any way relating to any Debtor,
the Chapter 11 Cases or the negotiation, formulation and preparation of this
Plan or any related document, except for claims or causes of actions against any
Releasee resulting from the willful misconduct or gross negligence of such
Releasee.
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11.11 CLAIMS OF THE UNITED STATES GOVERNMENT.
Nothing in this Plan shall effect a release of any non-Debtor
from any claim by the United States Government or any of its agencies; nor shall
anything in this Plan enjoin the United States from bringing any claim, suit,
action or other proceeding against any non-Debtor; provided, however, that this
Section 11.11 shall in no way affect or limit the discharge granted to any
Debtor under Chapter 11 of the Bankruptcy Code.
SECTION 12. RETENTION OF JURISDICTION
On and after the Effective Date, the Bankruptcy Court shall
retain jurisdiction over all matters arising in, arising under, or related to
the Chapter 11 Cases and this Plan for, among other things, the following
purposes:
(a) To hear and determine motions for the assumption or
rejection of executory contracts or unexpired leases and the allowance of Claims
resulting therefrom;
(b) To hear and determine motions for the sale of all or any
part of the Debtors' or Reorganized Debtors' assets, free and clear of all
liens, claims and encumbrances in accordance with sections 363 and 1123(a)(5) of
the Bankruptcy Code;
(c) To determine any motion, adversary proceeding,
application, contested matter, and other litigated matter pending on or
commenced after the Confirmation Date;
(d) To ensure that distributions to holders of Allowed Claims
are accomplished as provided herein;
(e) To consider Claims or the allowance, classification,
priority, compromise, estimation or payment of any Claim, Administrative Expense
Claim, or Disputed Claim;
(f) To enter, implement or enforce such orders as may be
appropriate in the event that the Confirmation Order is for any reason stayed,
reversed, revoked, modified or vacated;
(g) To issue injunctions, enter and implement other orders,
and take such other actions as may be necessary or appropriate to restrain
interference by any Person with the consummation, implementation or enforcement
of this Plan, the Confirmation Order or any other order of the Bankruptcy Court;
(h) To hear and determine any application to modify this Plan
in accordance with section 1127 of the Bankruptcy Code, to remedy any defect or
omission or reconcile any inconsistency in this Plan, the disclosure statement
for this Plan, or any
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order of the Bankruptcy Court, including the Confirmation Order, in such a
manner as may be necessary to carry out the purposes and effects thereof;
(i) To hear and determine all applications under sections 330,
331 and 503(b) of the Bankruptcy Code for awards of compensation for services
rendered and reimbursement of expenses incurred prior to the Confirmation Date;
(j) To hear and determine disputes arising in connection with
the interpretation, implementation or enforcement of this Plan, the Confirmation
Order, any transactions or payments contemplated hereby, or any agreement,
instrument, or other document governing or relating to any of the foregoing;
(k) To take any action and issue such orders as may be
necessary to construe, enforce, implement, execute and consummate this Plan or
to maintain the integrity of this Plan following consummation;
(l) To hear any disputes arising out of, and to enforce, the
order approving alternative dispute resolution procedures to resolve personal
injury, employment litigation and similar Claims pursuant to section 105(a) of
the Bankruptcy Code;
(m) To determine such other matters and for such other
purposes as may be provided in the Confirmation Order;
(n) To hear and determine matters concerning state, local, and
federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy
Code (including any requests for expedited determinations under section 505(b)
of the Bankruptcy Code filed, or to be filed, with respect to tax returns for
any and all taxable periods ending after the Commencement Date through, and
including, the Final Distribution Date);
(o) To hear and determine any other matters related hereto and
not inconsistent with the Bankruptcy Code and title 28 of the United States
Code;
(p) To recover all assets of any of the Debtors and property
of the applicable Debtor's Estate, wherever located; and
(q) To enter a final decree closing the Chapter 11 Cases.
SECTION 13. MISCELLANEOUS PROVISIONS
13.1 RETIREE BENEFITS.
On and after the Effective Date, pursuant to section
1129(a)(13) of the Bankruptcy Code, the applicable Reorganized Debtors shall
continue to pay any applicable retiree benefits of such Debtors (within the
meaning of section 1114 of the
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Bankruptcy Code), at any such level established in accordance with section 1114
of the Bankruptcy Code, at any time prior to the Confirmation Date, for the
duration of the period for which the applicable Debtor had obligated itself to
provide any such benefits.
13.2 DELETION OF CLASSES AND SUBCLASSES.
Any Class or Subclass of Claims that does not contain as an
element thereof an Allowed Claim or a Claim temporarily allowed under Bankruptcy
Rule 3018 as of the date of the commencement of the confirmation hearing shall
be deemed deleted from this Plan for purposes of voting to accept or reject this
Plan and for purposes of determining acceptance or rejection of this Plan by
such Class or Subclass under section 1129(a)(8) of the Bankruptcy Code.
13.3 ADDITION OF CLASSES AND SUBCLASSES.
In the event that Class 1-B would contain as elements thereof
two or more Secured Claims collateralized by different properties or interests
in property or collateralized by liens against the same property or interest in
property having different priority, such Claims shall be divided into separate
Subclasses of Class 1-B.
13.4 COMMITTEE.
(a) The Committee shall continue in existence from and after
the Effective Date. In addition to the powers and duties ascribed to the
Committee in this Plan, from and after the Effective Date, the Committee may
perform such other functions as are consistent with discharging its duties to
the holders of General Unsecured Claims.
(b) References herein to the "Committee" shall include the
Committee from and after the Effective Date.
13.5 EXEMPTION FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, neither
(i) the issuance, transfer or exchange of any security under, in furtherance of,
or in connection with, this Plan, nor (ii) the assignment or surrender of any
lease or sublease, or the delivery of any deed or other instrument of transfer
or of any mortgage, deed of trust or other instrument of encumbrance under, in
furtherance of, or in connection with, this Plan, including any deeds, bills of
sale or assignments executed in connection with any disposition of assets
contemplated by this Plan (including real and personal property) or the
disposition and/or encumbrance of assets in connection with the Exit Financing
Agreements (including any subsequent sale of property under section 6.1 of this
Plan), shall be subject to any stamp, real estate transfer, mortgage recording
sales, use or other similar tax.
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13.6 SUBSTANTIAL CONSUMMATION.
On the Effective Date, this Plan shall be deemed to be
substantially consummated under sections 1101 and 1127(b) of the Bankruptcy
Code.
13.7 PAYMENT OF STATUTORY FEES.
All fees payable pursuant to chapter 123 of title 28, United
States Code, as determined by the Bankruptcy Court on the Confirmation Date,
shall be paid on the Effective Date. Any statutory fees accruing after the
Confirmation Date shall constitute Administrative Expense Claims and be paid in
accordance with SECTION 2.1 of this Plan.
13.8 AMENDMENTS.
The Plan Proponents reserve the right, in accordance with the
Bankruptcy Code and the Bankruptcy Rules, to amend or modify this Plan at any
time prior to the entry of the Confirmation Order. After the entry of the
Confirmation Order, the Plan Proponents may, upon order of the Bankruptcy Court,
amend or modify this Plan, in accordance with section 1127(b) of the Bankruptcy
Code, or remedy any defect or omission or reconcile any inconsistency in this
Plan in such manner as may be necessary to carry out the purpose and intent of
this Plan. A holder of an Allowed Claim that is deemed to have accepted this
Plan shall be deemed to have accepted this Plan as modified if the proposed
modification does not materially and adversely change the treatment of the Claim
of such holder.
13.9 REVOCATION OR WITHDRAWAL OF PLAN.
The Plan Proponents may withdraw or revoke this Plan at any
time prior to the Confirmation Date. If the Plan Proponents revoke or withdraw
this Plan prior to the Confirmation Date, or if the Confirmation Date does not
occur, then this Plan shall be deemed null and void. In such event, nothing
contained herein shall be deemed to constitute a waiver or release of any Claim
by or against the respective Debtor or any other Person or to prejudice in any
manner the rights of the respective Debtor or any other Person in any further
proceedings involving the respective Debtor.
13.10 CRAMDOWN.
The Plan Proponents request confirmation of the Plan under
section 1129(b) of the Bankruptcy Code with respect to any Class that is deemed
to have not accepted this Plan pursuant to section 1126(g) of the Bankruptcy
Code. The Plan Proponents reserve the right to (i) request confirmation of this
Plan under section 1129(b) of the Bankruptcy Code with respect to any Class or
Subclass that does not accept this Plan pursuant to section 1126 of the
Bankruptcy Code and (ii) to modify this Plan to the
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extent, if any, that confirmation of this Plan under section 1129(b) of the
Bankruptcy Code requires modification.
13.11 SEVERABILITY.
In the event that the Bankruptcy Court determines, prior to
the Confirmation Date, that any provision of this Plan is invalid, void or
unenforceable, the Bankruptcy Court shall, with the consent of the Plan
Proponents, have the power to alter and interpret such term or provision to make
it valid or enforceable to the maximum extent practicable, consistently with the
original purpose of the term or provision held to be invalid, void or
unenforceable, and such term or provision shall then be applicable as altered or
interpreted. Notwithstanding any such holding, alteration or interpretation, the
remainder of the terms and provisions of this Plan shall remain in full force
and effect and shall in no way be affected, impaired or invalidated by such
holding, alteration or interpretation. The Confirmation Order shall constitute a
judicial determination and shall provide that each term and provision of this
Plan, as it may have been altered or interpreted in accordance with the
foregoing, is valid and enforceable pursuant to its terms.
13.12 REQUEST FOR EXPEDITED DETERMINATION OF TAXES.
Each Debtor shall have the right to request an expedited
determination under section 505(b) of the Bankruptcy Code with respect to tax
returns filed, or to be filed, for any and all taxable periods ending after the
Commencement Date through and including the Final Distribution Date.
13.13 COURTS OF COMPETENT JURISDICTION.
If the Bankruptcy Court abstains from exercising, or declines
to exercise, jurisdiction or is otherwise without jurisdiction over any matter
arising out of this Plan, such abstention, refusal or failure of jurisdiction
shall have no effect upon and shall not control, prohibit or limit the exercise
of jurisdiction by any other court having competent jurisdiction with respect to
such matter.
13.14 GOVERNING LAW.
Except to the extent that the Bankruptcy Code or Bankruptcy
Rules are applicable, or to the extent that an Exhibit hereto or a Schedule in
the Plan Supplement provides otherwise, the rights, duties and obligations
arising under this Plan shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without giving effect to the
principles of conflict of laws thereof.
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13.15 TIME.
In computing any period of time prescribed or allowed by this
Plan, unless otherwise set forth herein or determined by the Bankruptcy Court,
the provisions of Bankruptcy Rule 9006 shall apply.
13.16 HEADINGS.
Headings are used in this Plan for convenience and reference
only and shall not constitute a part of this Plan for any other purpose.
13.17 EXHIBITS.
All Exhibits and Schedules to this Plan are incorporated into
and are a part of this Plan as if set forth in full herein.
13.18 NOTICES.
Any notices to or requests of the Plan Proponents by parties
in interest under or in connection with this Plan shall be in writing and served
either by (i) certified mail, return receipt requested, postage prepaid, (ii)
hand delivery or (iii) reputable overnight delivery service, all charges
prepaid, and shall be deemed to have been given when received by the following
parties:
Impac Hotels II, L.L.C.
Impac Hotels III, L.L.C.
c/o Lodgian, Inc.
3445 Peachtree Road - Suite 700
Atlanta, Georgia 30326
Attn: Daniel E. Ellis, Esq.
with copies to:
CADWALADER, WICKERSHAM & TAFT LLP
Attorneys for the Debtors and Debtors-In-Possession
100 Maiden Lane
New York, New York 10038
(212) 504-6000
Attn: Adam C. Rogoff, Esq.
-and-
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CURTIS, MALLET-PREVOST, COLT & MOSLE, LLP
Co-Attorneys for the Debtors and Debtors-In-Possession
101 Park Avenue
New York, New York 10178
(212) 696-6000
Attn: Steven J. Reisman, Esq.
-and-
DEBEVOISE & PLIMPTON
Attorneys for the Official Committee of Unsecured
Creditors
919 Third Avenue
New York, New York 10022
(212) 909-6000
Attn: George E.B. Maguire, Esq.
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Dated: New York, New York
As of March 3, 2003
Respectfully submitted,
IMPAC HOTELS II, L.L.C.
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Authorized Officer
IMPAC HOTELS III, L.L.C.
By: /s/ Daniel E. Ellis
--------------------------------------
Name: Daniel E. Ellis
Title: Authorized Officer
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
By: Debevoise & Plimpton, its counsel
By: /s/ George E.B. Maguire
--------------------------------------
Name: George E.B. Maguire
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EXHIBIT A
<Table>
<Caption>
CLASS 3 SUBCLASS DEBTOR CASE NO.
----------------------- --------
Impac Hotels II, L.L.C. 01-16367
Impac Hotels III, L.L.C. 01-16375
</Table>