EXHIBIT 2.1
RECITALS
WHEREAS, Oakwood Homes Corporation, et al., debtors and
debtors-in-possession in the above-captioned Chapter 11 cases (the "Debtors"),
filed with this Court the Supplemental Disclosure Statement For Second Amended
Joint Consolidated Plan Of Reorganization Of Oakwood Homes Corporation And Its
Affiliated Debtors And Debtors In Possession, dated February 6, 2004 (D.I. 3504)
(the "Disclosure Statement") pursuant to section 1125 of title 11 of the United
States Code (the "Bankruptcy Code") with respect to the Second Amended Joint
Consolidated Plan Of Reorganization Of Oakwood Homes Corporation And Its
Affiliated Debtors And Debtors In Possession, dated February 6, 2004 (D.I. 3503)
(the "Plan"), attached hereto as Exhibit A;(2) and
WHEREAS, the Plan contemplates, among other things,
authorization and approval for the Debtors to consummate the transactions
provided for in that certain Asset Purchase Agreement, dated as of November 24,
2003, as amended (as may be from time to time further amended, the "Purchase
Agreement"), by and among the Debtors, certain non-Debtor affiliates of the
Debtors, and the Buyer (specifically as defined in the Plan), a copy of which
was filed as Exhibit D to the Disclosure Statement and is attached hereto as
Exhibit B; and
WHEREAS, by an Order dated February 6, 2004 (the "Disclosure
and Solicitation Order") this Court, among other things, approved the Disclosure
Statement in all respects as to the Operating Debtors (as defined below), set a
date for the hearing to consider confirmation of the Plan, and established
certain procedures for soliciting and tabulating votes with respect to the Plan;
and
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(2) Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Plan.
WHEREAS, on March 16, 2004, this Court conditionally approved
the Disclosure Statement and deemed the Disclosure and Solicitation Order to
apply to the Small Business Debtors (as defined below), with the current
solicitation packages being sufficient to solicit acceptances of the Plan as it
applied to the Small Business Debtors; and
WHEREAS, the Debtors filed the affidavits of service (D.I.
3694) (the "Plan Mailing Affidavits"), showing that, in accordance with the
applicable Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and
the Disclosure and Solicitation Order, the notice of confirmation hearing, the
Disclosure Statement (and the Plan attached thereto), the Disclosure and
Solicitation Order and, to the extent required in the Disclosure and
Solicitation Order, an appropriate Ballot, were mailed and transmitted by United
States mail first class postage prepaid by February 17, 2004 to, as set forth in
the exhibits to the Plan Mailing Affidavits, (i) the Creditors' Committee and
the United States Trustee (excluding ballots); (ii) claimants holding Claims in
unimpaired classes: Class 1 (Priority Non-Tax Claims) (excluding Ballots); (iii)
claimants holding Claims designated as impaired and entitled to vote pursuant to
the Plan: Classes 2A through 2L, (Secured Claims), Class 3 (Convenience Claims),
Classes 4A through 4E (Unsecured Claims), and Class 6A (Non-Debtor-Held
Interests); and (iv) entities that requested notices under Bankruptcy Rule 2002
(excluding ballots); and
WHEREAS, on March 19, 2004 the Debtors filed (i) the affidavit
of Cheryl Rothlein of USA Today sworn to on February 20, 2004 (D.I. 3848) and
(ii) the affidavit Mike Henley of The Wall Street Journal sworn to on March 3,
2004 (D.I. 3849) (collectively, the "Publication Affidavits") setting forth the
time and manner of the publication of the notices approved by this Court in the
Disclosure and Solicitation Order for publication in The Wall
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Street Journal (national edition) and USA Today (national edition), and showing
that such notices were published in accordance with the Disclosure and
Solicitation Order; and
WHEREAS, the Debtors filed the affidavit of Cassandra Murray
of BSI (D.I. 3877), sworn to on March 22, 2004, attesting to the results of
voting on the Plan (the "Voting Results Report"); and
WHEREAS, the Debtors filed the declaration of Myles E.
Standish, the President and Chief Executive Officer of Oakwood Homes
Corporation, dated March 25, 2004 (D.I. 3908) (the "Standish Declaration"),
attesting to certain matters in connection with confirmation of the Plan; and
WHEREAS, the Debtors filed the declaration of George Nelson of
Deloitte & Touche LLP (D.I. 3903), dated March 25, 2004, attesting to the tax
implications of the ownership of the Reorganized Sale Debtor under the Sale
Option of the Plan (the "Nelson Declaration"); and
WHEREAS, on March 5, 2004, pursuant to the Plan, the Debtors
filed and served the Notice of Filing of Plan Supplement (D.I. 3713), which
included the Plan Supplement and indicated that the Debtors served the Notice of
Filing of Plan Supplement on, inter alia, (i) the United States Trustee, (ii)
counsel for the Creditors' Committee and (iii) those entities that have formally
requested receipt of pleadings in these cases pursuant to Bankruptcy Rule 2002;
and
WHEREAS, annexed hereto as Exhibit C is a schedule listing
certain executory contracts and unexpired leases to be rejected, assumed, or
assumed and assigned, relating to the Reorganized Sale Debtors and the
Reorganized Stand Alone Debtors, pursuant to the Plan as originally filed and
served with the Plan Supplement and amended and modified as of the Confirmation
Date (the "Executory Contract Schedule"); the executory contracts and unexpired
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leases assumed and assigned to the Buyer are governed by and set forth in the
Purchase Agreement; and
WHEREAS, the United States Trustee has not objected to
confirmation; and
WHEREAS, twenty parties formally filed objections to
confirmation (the "Objecting Parties"); and
WHEREAS, each of the Objecting Parties has elected to
withdraw its objection to confirmation or such objection has been resolved or
settled; and
WHEREAS, as described at the Confirmation Hearing (as defined
herein) and in the Revised Memorandum of Oakwood Homes Corporation and Its
Affiliated Debtors and Debtors-In-Possession in Support of Confirmation of the
Second Amended Joint Consolidated Plan of Reorganization, dated February 6, 2004
(D.I. 3885)(the "Memorandum"), to resolve the objections interposed to the Plan,
the Debtors have (i) agreed to modify the treatment provided for Secured Claims,
rendering them unimpaired, and (ii) resolved certain matters with respect to the
Claims or the purported Claims asserted by the Objecting Parties, as set forth
in this Order; and
WHEREAS, pursuant to section 1128(a) of the Bankruptcy Code,
this Court held a hearing commencing on March 24, 2004 and continuing thereafter
on March 26, 2004 (both hearings together, the "Confirmation Hearing"), to
consider confirmation of the Plan, including the settlements embodied therein;
and
NOW, THEREFORE, based upon this Court's review of the
affidavits and reports previously filed with this Court; and upon all of the
evidence proffered and adduced at, memoranda and objections filed in connection
with, and arguments of counsel made at the Confirmation Hearing to consider,
inter alia, confirmation of the Plan and issues pertaining to
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settlement of various issues regarding the Plan; and notice appearing to be
sufficient and in accordance with all applicable rules and law; and after due
deliberation; and upon the entire record of these Chapter 11 Cases;
FINDINGS OF FACTS AND CONCLUSIONS OF LAW(3)
I. IT IS HEREBY FOUND AND DETERMINED THAT
1. Core Proceeding (28 U.S.C. Section 157(B)(2)). This
is a core proceeding under 28 U.S.C. Section 157(b)(2).
2. Adequacy of the Disclosure Statement and
Solicitation of Votes as to the Small Business Debtors.
(a) The Disclosure Statement contains adequate
information regarding the Small Business Debtors within the meaning of section
1125 of the Bankruptcy Code.
(b) The period during which the Debtors
solicited votes to accept or reject the Plan for the Small Business Debtors, as
established by the Disclosure and Solicitation Order, provided sufficient time
for: (1) Holders of Claims and Interests to make informed decisions to accept or
reject the Plan and submit timely ballots; and (2) brokers, banks, dealers or
other agents or nominees for beneficial owners of Claims or Interests to
distribute ballots and complete and submit timely master ballots.
(c) The procedures for the solicitation and
tabulation of votes to accept or reject the Plan for the Small Business Debtors
provided a fair and equitable voting process and are consistent with section
1126 of the Bankruptcy Code.
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(3) Findings of fact shall be construed as conclusions of law and
conclusions of law shall be construed as findings of fact where
appropriate.
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(d) The contents of the Solicitation Packages
(as defined in the Disclosure and Solicitation Order) and the procedures for
providing notice of the Confirmation Hearing and the other matters set forth in
the Confirmation Hearing Notice complied with Bankruptcy Rules 2002 and 3017 and
constitute adequate information and sufficient notice to all interested parties
in accordance with the Bankruptcy Code, the Bankruptcy Rules and the Local Rules
of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for
the District of Delaware (the "Local Rules").
3. Transmittal and Mailing of Materials; Notice. The
Solicitation Packages were transmitted and served in compliance with the
Disclosure and Solicitation Order and the Bankruptcy Rules, and such transmittal
and service was adequate and sufficient. Adequate and sufficient notice of the
Confirmation Hearing and other bar dates and hearings described in the
Disclosure and Solicitation Order was given in compliance with the Bankruptcy
Rules and the Disclosure and Solicitation Order, and no further notice was
required. The solicitation of votes was made in good faith and in compliance
with the applicable provisions of the Bankruptcy Code and Bankruptcy Rules and
all other rules, laws and regulations.
4. Plan Compliance with Bankruptcy Code (11 U.S.C.
Section 1129(a)(1)). Article IV of the Plan adequately and properly identifies
and classifies all Claims and Interests. The Plan complies with the applicable
provisions of the Bankruptcy Code, thereby satisfying section 1129(a)(1) of the
Bankruptcy Code and, as required by Bankruptcy Rule 3016(a), is dated and
specifically identifies the Debtors as the proponents of the Plan.
(a) Proper Classification (11 U.S.C. Sections
1122, 1123(a)(1)). Article IV of the Plan adequately and properly identifies and
classifies all Claims and Interests. The Plan designates seventeen (17) Classes
of Claims and one (1) Class of Interests. The Claims or
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Interests placed in each Class are substantially similar to other Claims or
Interests, as the case may be, in each such Class, and such classification
satisfies section 1122 of the Bankruptcy Code. Valid business and legal reasons
exist for the various Classes of Claims and Interests created under the Plan,
and such Classes do not unfairly discriminate between holders of Claims or
Interests. Thus, the Plan satisfies section 1123(a)(1) of the Bankruptcy Code.
(b) Specified Treatment of Unimpaired Class (11
U.S.C. Section 1123(a)(2)). The Plan specifies in Article IV that Class 1 is not
impaired under the Plan, thereby satisfying section 1123(a)(2) of the Bankruptcy
Code. The Plan, as amended to obviate certain objections raised by the Objecting
Parties, also now specifies that Classes 2A through 2L are not impaired under
the Plan, thereby satisfying selection 1123(a)(2) with respect to those Classes.
(c) Specified Treatment of Impaired Classes (11
U.S.C. Section 1123(a)(3)). The Plan specifies the Classes of Claims and
Interests that are impaired and the treatment of the impaired Classes (Classes
3, 4A through 4E, and 6A) in Article IV of the Plan, thereby satisfying section
1123(a)(3) of the Bankruptcy Code.
(d) No Discrimination (11 U.S.C. Section
1123(a)(4)). Except as described herein, Article IV of the Plan provides for the
same treatment for each Claim or Interest in each respective Class unless the
holder of a particular Class or Interest has agreed to a less favorable
treatment of such Claim or Interest, thereby satisfying section 1123(a)(4) of
the Bankruptcy Code.
(e) Implementation of the Plan (11 U.S.C.
Section 1123(a)(5)). Article VI of the Plan provides adequate and proper means
for implementation of the Plan, thereby satisfying section 1123(a)(5) of the
Bankruptcy Code.
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(f) Nonvoting Equity Securities (11 U.S.C.
1123(a)(6)). Under the Sale Option of the Plan, the articles of incorporation
for the Reorganized Sale Debtors shall prohibit the issuance of nonvoting equity
securities, thereby satisfying section 1123(a)(6) of the Bankruptcy Code.
Pursuant to Section 6.2(b) of the Plan, under the Stand Alone Option of the
Plan, the Amended Bylaws and Amended Certificates of Incorporation of the
Debtors prohibit the issuance of nonvoting equity securities, thereby satisfying
section 1123(a)(6) of the Bankruptcy Code.
(g) Selection of Officers, Directors and Initial
Trustees (11 U.S. C. Section 1123(a)(7)). The provisions of the Plan,
Liquidation Trust Agreement, Amended Bylaws, Amended Certificates of
Incorporation and Stand Alone Voting Trust Agreement regarding the manner of
selection of officers and directors of the Reorganized Sale Debtors and the
Reorganized Stand Alone Debtors, as well as the selection of the Liquidation
Trustee, the members of the Liquidation Trust Advisory Committee and the Stand
Alone Voting Trustees, are consistent with the interests of creditors and equity
security holders and with public policy, thereby satisfying section 1123(a)(7)
of the Bankruptcy Code.
5. Compliance with the Bankruptcy Code (11 U.S.C.
Section 1129(a)(2)). The Debtors have complied with the applicable provisions of
the Bankruptcy Code, thereby satisfying section 1129(a)(2) of the Bankruptcy
Code.
(a) Each of the Debtors is a proper debtor under
section 109 of the Bankruptcy Code.
(b) On November 15, 2002, Oakwood Homes
Corporation ("Oakwood"), New Dimension Homes, Inc., Dream Street Company, LLC,
Oakwood Shared Services, LLC, HBOS Manufacturing, LP, Oakwood MHD4, LLC, Oakwood
Acceptance
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Corporation, LLC, Oakwood Mobile Homes, Inc., Suburban Home Sales, Inc., FSI
Financial Services, Inc., Home Service Contract, Inc., Tri-State Insurance
Agency, Inc., Golden West Leasing, LLC, Crest Capital, LLC, and Preferred
Housing Services, LP (collectively, the "Operating Debtors") each filed a
voluntary Chapter 11 petition pursuant to section 301 of the Bankruptcy Code.
The Chapter 11 Cases of the Operating Debtors were consolidated for
administrative purposes only by Order dated November 19, 2002 (D.I. 44).
(c) On March 5, 2004, Oakwood Financial
Corporation, Oakwood Investment Corporation and Oakwood Servicing Holdings Co.,
LLC, (the "Small Business Debtors" and, collectively with the Operating Debtors,
the "Debtors") each filed a voluntary Chapter 11 petition pursuant to section
301 of the Bankruptcy Code. The Chapter 11 Cases of the Small Business Debtors
were consolidated for administrative purposes only with the Chapter 11 Cases of
the Operating Debtors by Order dated March 10, 2004 (D.I. 3759).
(d) This Court has jurisdiction over the
Debtors' Chapter 11 Cases pursuant to 28 U.S.C. Section 1334.
(e) Venue of these cases is proper in this
district pursuant to 28 U.S.C. Section 1408.
(f) The Debtors are the proper proponents of the
Plan pursuant to section 1121(a) of the Bankruptcy Code.
(g) The Debtors, as proponents of the Plan,
complied with all applicable provisions of the Bankruptcy Code, the Bankruptcy
Rules, the Local Rules and the Disclosure and Solicitation Order by transmitting
the Plan, the Disclosure Statement, the Ballots and related documents and
notices to all necessary and appropriate Persons and parties-in-interest and by
soliciting and tabulating votes on the Plan. Notwithstanding any adverse
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financial and other developments occurring subsequent to the mailing of the
Disclosure Statement, no resolicitation of votes is required because the
Disclosure Statement stated that it was accurate only as of the dates of its
preparation, and (i) warned of the risks of adverse changes in the Debtors'
prospects and (ii) stated that management did not intend to revise the
Disclosure Statement projections or advise its readers of any subsequent changes
or events.
6. Plan Proposed in Good Faith (11 U.S.C. Section
1129(a)(3)). The Debtors have proposed the Plan in good faith and not by any
means forbidden by law, thereby satisfying section 1129(a)(3) of the Bankruptcy
Code.
7. Payments for Services or Costs and Expenses (11
U.S.C. Section 1129(a)(4)). Any payment made or to be made pursuant to the Plan
by the Debtors, the Buyer or any other entity receiving property under the Plan
for services or for costs and expenses in or in connection with these Chapter 11
Cases, or in connection with the Plan and incident to these Chapter 11 Cases,
has been approved by, or is subject to the approval of, this Court as
reasonable, thereby satisfying section 1129(a)(4) of the Bankruptcy Code.
8. Directors, Officers and Trustees (11 U.S.C. Section
1129(a)(5)). The Debtors have complied with section 1129(a)(5) of the Bankruptcy
Code. Specifically:
(a) To the extent known at this time, the
Debtors have disclosed the identity and affiliations of any individual proposed
to serve, after confirmation of the Plan, as a director and/or officer of the
Reorganized Sale Debtors and the Reorganized Stand Alone Debtors, the
Liquidation Trustee, a member of the Liquidation Trust Advisory Committee and a
Stand Alone Voting Trustee, and the appointment to, or continuance in, such
office of such individual is consistent with the interests of Holders of Claims
and Interests and with public policy.
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(b) To the extent known at this time, the
Debtors have disclosed the identity of any insider that will be employed or
retained by any successor to the Debtors and such person's compensation.
9. No Rate Changes (11 U.S.C. Section 1129(a)(6)). No
governmental regulatory commission has jurisdiction over the rates charged by
the Debtors. Thus, the Plan does not provide for the change in any rates which
require regulatory approval, thereby satisfying section 1129(a)(6) of the
Bankruptcy Code.
10. Best Interests of Creditors Test (11 U.S.C. Section
1129(a)(7)). The Plan satisfies section 1129(a)(7) of the Bankruptcy Code.
Specifically:
(a) The liquidation analyses contained in the
Disclosure Statement and in other evidence presented at the Confirmation Hearing
have not been controverted by other evidence. The methodology used and
assumptions made in connection with the liquidation analysis, as supplemented by
other evidence at the Confirmation Hearing, are reasonable.
(b) Each Holder of a Claim or Interest in each
impaired Class either has accepted the Plan or will receive or retain under the
Plan on account of such Claim or Interest property of a value, as of the
Effective Date, that is not less than the amount that such Holder would receive
or retain if the Debtors were liquidated under Chapter 7 of the Bankruptcy Code
on such date. No Class has made an election under section 1111(b) of the
Bankruptcy Code.
11. Acceptance by Certain Classes (11 U.S.C. Section
1129(a)(8)). Except as set forth below, each Class of Claims or Interests
entitled to vote has accepted the Plan or is not impaired under the Plan. Since
not all impaired Classes of Claims or Interests have accepted the Plan, the
requirements of section 1129(a)(8) have not been met, thus requiring the
Debtors'
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compliance with section 1129(b) of the Bankruptcy Code with respect to such
nonaccepting classes.
12. Treatment of Administrative and Tax Claims (11 U.S.C.
Section 1129(a)(9)). The treatment of Administrative Claims, Fee Claims, OFC and
OIC Tax Claims, Priority Tax Claims, and Priority Non-Tax Claims under sections
3.1, 3.2, 3.3, 3.4 and 4.2 of the Plan satisfies the requirements of section
1129(a)(9)(A) and (B) of the Bankruptcy Code, and the treatment of Priority Tax
Claims and OFC and OIC Tax Claims under Sections 3.3 and 3.4 of the Plan
satisfies the requirements of section 1129(a)(9)(C) of the Bankruptcy Code.
13. Acceptance by Impaired Classes (11 U.S.C. Section
1129(a)(10)). At least one Class of Claims that is impaired under the Plan has
accepted the Plan, determined without including any acceptance of the Plan by
any insider of the Debtors holding a Claim in such Class, thereby satisfying
section 1129(a)(10) of the Bankruptcy Code.
14. Feasibility (11 U.S.C. Section 1129(a)(11)). Reliable
and credible evidence was presented at the Confirmation Hearing that the Plan is
feasible. Confirmation of the Plan, therefore, satisfies section 1129(a)(11) of
the Bankruptcy Code.
15. Payment of Fees (11 U.S.C. Section 1129(a)(12)). All
fees payable under 28 U.S.C. Section 1930, as determined by this Court at the
Confirmation Hearing, have been paid or will be paid as Administrative Claims on
the Effective Date pursuant to the Plan, thereby satisfying section 1129(a)(12)
of the Bankruptcy Code. From and after the Effective Date, the Liquidation Trust
shall assume responsibility for and shall pay all fees payable under 28 U.S.C.
Section 1930 for the Estate of each Debtor until the Chapter 11 Case of such
Debtor is dismissed, closed or converted.
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16. Continuation of Retiree Benefits (11 U.S.C. Section
1129 (a)(13)). The Debtors have no obligations constituting "retiree benefits"
as defined in section 1114 of the Bankruptcy Code. Therefore, section
1129(a)(13) of the Bankruptcy Code does not apply to the Plan and is satisfied.
17. Fair and Equitable; No Unfair Discrimination (11
U.S.C. Section 1129(b)). Classes 4C and 6A (the "Rejecting Classes") are treated
as impaired under the Plan and did not meet the requirements of sections 1126(c)
and (d) of the Bankruptcy Code; therefore, such Classes, and only such Classes,
have rejected the Plan. Pursuant to section 1129(b) of the Bankruptcy Code, this
Court finds that the Plan does not discriminate unfairly, and is fair and
equitable, with respect to each of the Rejecting Classes. Specifically, the
Holders of the Non-Debtor-Held Interests, which Holders comprise the most junior
Class under the Plan and the only Class junior to Class 4C, will not receive or
retain any property under the Plan on account of such Interests. The retention
by Holders of the Non-Debtor-Held Interests in Reorganized Sale OKWD under the
Sale Option of the Plan is necessary and appropriate under the circumstances in
that it serves to substantially increase, not diminish, the recovery to the
Holders of Allowed Unsecured Claims. Since the purpose of this continuing equity
ownership is the maximization of distributions to Holders of Allowed Unsecured
Claims, the Holders of Non-Debtor Held Interests are not, therefore, receiving
or retaining property "on account of their interests" in the Debtors or the
Reorganized Sale Debtors. Thus, the Plan satisfies section 1129(b) as to Classes
4C and 6A.
18. Principal Purpose of Plan (11 U.S.C. Section
1129(d)). The principal purpose of the Plan is not the avoidance of taxes or the
avoidance of the application of section 5 of the Securities Act of 1933 (15
U.S.C. Section 77e), and no Governmental Unit has requested that this
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Court not confirm the Plan for this reason. Therefore, the Plan satisfies the
requirements under section 1129(d) of the Bankruptcy Code.
19. Technical Amendments and Non-Material Modifications.
The modifications of the Plan (the "Modifications") set forth in the
Non-Material Amendments of and Revisions to Resolve Objections to the Second
Amended Joint Consolidated Plan of Reorganization of Oakwood Homes Corporation
and Its Affiliated Debtors and Debtors-in-Possession, as attached hereto as
Exhibit D, are technical and/or non-material changes to the Plan and shall be,
and hereby are, approved in their entirety. The Modifications do not constitute
material modifications to the Plan and, if they did, such modifications are
expressly permitted pursuant to section 11.3 of the Plan. Furthermore, the
Debtors have established that the Modifications will not alter the economic
effect of the distributions to Classes described in the Plan.
20. Objections. All objections to confirmation and
comments filed with this Court have been withdrawn or settled based upon the
representations made on the record and the Modifications of the Plan, as set
forth below:
(a) In regard to the objections to confirmation
filed with this Court by (1) the Texas Taxing Authorities (D.I. 3684 and 3716),
(2) County of Riverside, California (D.I. 3725), (3) Pima County, Arizona (D.I.
3727) and (4) the Second Texas Taxing Authorities (D.I. 3781), these parties
have agreed to withdraw their objections based on the following:
In resolution of the objections of Angelina County, Ben
Bolt-Palito Blanco ISD, Bexar County, Caldwell CAD, Cypress-Fairbanks
ISD, Dallas County, City of Denton, Dimmit County, Donna ISD, Duval
County, City of El Paso, Ellis County, Fort Bend County, Grayson
County, Gregg County, Harris Co. WCID #21, Harris County, Hays CISD,
Hidalgo County, City of Houston, Houston ISD, Hunt County, Ingram ISD,
City of Kilgore, Kilgore College, Kilgore ISD, Lamar CISD, Lampasas
CAD, Lavaca County CAD, Mathis ISD, McLennan County, Mildred ISD,
Montgomery County, Morris CAD, Navarro
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County, New Braunfels ISD, Nueces County, Orange County, Parker CAD,
Pharr-San Juan-Alamo ISD, Polk County, Premont ISD, Reagan County, City
of San Marcos, San Marcos CISD, San Patricio County, Smith County,
Stockdale ISD, Tarrant County, Tom Green CAD, Victoria County,
Washington CAD, Wilson County, Wise CAD and Wise County, Tax Appraisal
District of Bell County, County of Bowie, Bowie Central Appraisal
District, County of Brazos, Bryan Independent School District, Brazos
County Rural Fire Prevention District #2, Barbers Hill Independent
School District, County of Comal, County of Coryell, County of Denton,
Elgin Independent School District, White Oak Independent School
District, Longview Independent School District, County of Grimes, City
of Navasota, Navasota Independent School District, County of Guadalupe,
County of Hardin, County of Harrison, Marshall Independent School
District, Hallsville Independent School District, County of Hays,
County of Henderson, County of Hill, City of Hillsboro, Hillsboro
Independent School District, Itasca Independent School District,
Midland Central Appraisal District, County of Real, County of Van
Zandt, County of Williamson, Leander Independent School District,
Brazoria County, Barbers Hill ISD, City of Ennis, Ennis ISD, Cass
County, Greenville ISD, Boles ISD, City of Wolfe City, Burleson ISD,
Johnson County, Venus ISD, Hill County Jr. College, Cleburne ISD,
Wichita Falls ISD, Wichita County, City of Itasca, Maypearl ISD,
Waxahachie ISD, Eagle Mountain-Saginaw ISD, Channelview ISD, Fort Worth
ISD, City of Fort Worth, Olney ISD, Young County, Olney Hospital
District, Spring ISD, Tomball ISD, City of Tomball, Andrews ISD,
Andrews County, Midland County, Lubbock Central Appraisal District,
Quinlan ISD, Clark County (Nevada), County of Riverside (California),
and Pima County (Arizona) (collectively, the "Objecting AVTAs"), the
following shall apply, notwithstanding any provisions in the Plan, this
Confirmation Order, or in any loan documents authorizing, establishing,
or securitizing any Exit Facility herein:
1) All Claims of the Objecting AVTAs, to the extent
timely and properly filed under any relevant bar
date, or as allowed by the Court, for either
pre-petition or post-petition taxes, will retain any
and all statutory Liens (to the extent validly
perfected and otherwise unavoidable) they now hold
whether in the original collateral securing their
Claims, or in the proceeds of the sale thereof, for
both pre-petition and post-petition tax years, until
paid in full, and such Liens shall not be primed by
or subordinated to any Liens granted to, for the
benefit of, or in connection with the Exit Facility,
absent further Order of the Court after notice and a
hearing.
2) To the extent any asserted Secured Claims of the
Objecting AVTAs for taxes for the 2003 tax year are
entitled to classification and treatment as
Administrative Claims under section 503 of the
Bankruptcy Code, they shall be paid pursuant to
Section 3.1 of the Plan. If the Plan is consummated
pursuant to the Sale Option, the AVTAs will have 60
days from entry of the Confirmation Order to file
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proofs of claim for the 2004 tax year. If the Plan is
consummated pursuant to the Stand Alone Option, the
Reorganized Stand Alone Debtors shall pay taxes for
the 2004 tax year in the ordinary course as
appropriate without the necessity of filing claims or
requests for payment in these Chapter 11 cases.
3) The Liquidation Trust (under the Sale Option) and the
Reorganized Stand Alone Debtors (under the Stand
Alone Option) shall have six (6) months from the
Effective Date (the "AVTA Claims Objection Deadline")
to file objections to claims filed by the Objecting
AVTAs; provided, however, that any objecting AVTA may
extend the AVTA Claims Objection Deadline with
respect to its Claim only.
A. Claims not objected to prior to the AVTA
Claims Objection Deadline shall be paid in
full within the following thirty days or as
soon as reasonably practicable thereafter,
including interest to the extent allowable
under section 506(b) of the Bankruptcy Code
(i) at the statutory rate for the period
from the Petition Date through the Effective
Date, and (ii) interest from the Effective
Date at the rate of 8% per annum until paid
in full.
B. To the extent any of the Claims of the
Objecting AVTAs are objected to by the AVTA
Claims Objection Deadline, payment in full
shall be made within thirty days or as soon
as reasonably practicable after such
Claim(s) become Allowed. To the extent any
Claim of the Objecting AVTAs is objected to
in part, the undisputed portion of such
Claim shall be paid within thirty days of
the AVTA Claims Objection Deadline or as
soon as reasonably practicable thereafter,
pending the resolution of the disputed
portion of their claim.
4) If the Plan is consummated pursuant to the Sale
Option, sufficient proceeds from the sale shall be
reserved by the Liquidation Trust to pay any
ultimately Allowed Claim(s) (including post-petition
interest) of the Objecting AVTA(s), with the Allowed
Claims retaining their priority of payment as if such
Liens continued in the proceeds and such amount shall
not be subject to distribution to any other party
unless and until all Allowed Claim(s) of the
Objecting AVTA(s) have been paid in full.
(b) The limited objection to confirmation (D.I.
3722) filed with this Court by Carolina First Bank ("CFB") is withdrawn.
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(c) Wachovia Bank, National Association
("Wachovia") has agreed to withdraw its limited objection (D.I. 3760) based on
the following:
Due to the nature of the cash management system operated by
Wachovia and the potential Allowed Claim arising therefrom, the bar
date for Wachovia to submit one or more proofs of an Administrative
Claim to the Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option) with
respect to any post-Effective Date chargebacks received and any expense
or liability that arises as a result of processing remittances to the
Lockbox (as defined in Wachovia's objection) or otherwise providing
cash management services to the Debtors during the pendancy of these
Chapter 11 Cases (any and all such claims, a "Cash Management
Administrative Claim") shall not be subject to the Administrative
Claims Bar Date but, with respect to each account maintained by the
Debtors prior to the Effective Date (each such account a "Wachovia
Account"), shall be filed by Wachovia no later than nine months after
the date on which such account with Wachovia has been closed (in each
case, the "Cash Management Administrative Claim Bar Date"). Until each
account has been closed, Wachovia shall continue to service such
account in accordance with the terms and conditions of that certain
Order Authorizing (i) Continued Use of Existing Business Forms and
Records and Management of Existing Bank Accounts and Cash Management
Systems and (ii) Continued Use of Intercompany Transaction, entered
November 19, 2002 (D.I. 28) (the "Cash Management Order").
Additionally, provided that the Liquidation Trust (under the Sale
Option) or the Reorganized Stand Alone Debtors (under the Stand Alone
Option) does not breach applicable deposit agreements, Wachovia will
not interrupt or otherwise interfere with ACH or other services that
Wachovia provided to the Debtors during the pendancy of these Chapter
11 Cases in the ordinary course of business until such time as each
Wachovia Account is closed.
The Liquidation Trust (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option) shall,
on or as soon as reasonably practicable after the Effective Date,
establish a reserve (the "Cash Management Reserve") to satisfy Allowed
Cash Management Administrative Claims. Such reserve shall be
established in the initial amount of five million dollars ($5,000,000),
and shall be supplemented from time to time by the actual amount of
unpaid Cash Management Administrative Claims asserted by Wachovia
through the thirtieth (30th) day following the date on which the
applicable Wachovia Account has been closed (the "Supplemental Reserve
Amount"), which Supplemental Reserve Amount shall be set forth in a
writing delivered by Wachovia to the Liquidation Trust (under the Sale
Option) or the Reorganized Stand Alone Debtors (under the Stand Alone
Option) no more than ten (10) days later.
Ten (10) days after the end of each month until the final Cash
Management Administrative Claims Bar Date respecting each particular
17
Wachovia Account, Wachovia shall submit to the Liquidation Trust (under
the Sale Option) or the Reorganized Stand Alone Debtors (under the
Stand Alone Option) its aggregate Cash Management Administrative Claims
for such month together with appropriate supporting documentation of
such Claims. The Liquidation Trustee (under the Sale Option) or the
Reorganized Stand Alone Debtors (under the Stand Alone Option) shall
have a period of thirty (30) days from the date of each such submission
to file an objection with the Bankruptcy Court to all or any portion of
a Cash Management Administrative Claim. The Liquidation Trustee (under
the Sale Option) or the Reorganized Stand Alone Debtors (under the
Stand Alone Option) shall pay the undisputed portion of any Cash
Management Administrative Claim within thirty (30) days of the date of
submission, and shall pay any disputed Cash Management Administrative
Claim within ten (10) days after the date such disputed Claim becomes
an Allowed Claim.
If, prior to the Effective Date, Wachovia has not entered into
an appropriate agreement with the Buyer regarding the continued
processing of remittances received in the Lockbox established by the
Debtors with Wachovia, and/or the provision of other post-Effective
Date cash management services, Wachovia is authorized and instructed to
terminate such services and to cause all Lockbox receipts to be
forwarded on a daily basis to the Buyer by overnight delivery, unopened
and unprocessed at an address designated in writing by the Buyer.
The Buyer shall reimburse Wachovia for its reasonable fees and
expenses for providing such services. Wachovia shall have no liability
to any party with respect to receipts in the Lockbox, other than those
arising from its own gross negligence or willful misconduct.
(d) The objection to confirmation (D.I. 3761)
filed by the Arkansas Class Action Plaintiffs (the "Plaintiffs") is withdrawn
with the clarification that neither the Plan nor this Order will in any way
affect the relief granted by this Court in the Order (D.I. 2374) entered on
November 13, 2003.
(e) The limited objection to confirmation (D.I.
3763) by Textron Financial Corporation ("Textron") is withdrawn based on the
following language:
Textron Financial Corporation ("Textron") filed a Limited
Objection to Second Amended Joint Consolidated Plan of Reorganization
(the "Textron Objection"). The Textron Objection has been resolved by
the Buyer's agreement that, notwithstanding anything to the contrary in
the Asset Purchase Agreement, (a) the Buyer will assume all of Debtors'
obligations and liabilities under (i) the
18
Repurchase Agreement Between HBOS Manufacturing L.P. and Textron dated
April 30, 2001, as amended on March 7, 2002, as amended by the Amended,
Re-Affirmation and Agreement dated January 30, 2003, and as amended by
the Amendment to Repurchase Agreement dated May 5, 2003, the latter of
which was also executed by Oakwood Homes Corporation and Oakwood Mobile
Homes, Inc. (collectively, the "Textron Repurchase Agreement") and (ii)
the Guaranty dated April 30, 2001 by and between Oakwood Homes
Corporation and Textron for the benefit HBOS (the "Oakwood Guaranty"),
the Guaranty dated May 6, 2002, by and between Oakwood Mobile Homes,
Inc. and Textron, for the benefit of New Dimension Homes of Long Neck,
LLC ("Long Neck") (the "OMH Guaranty") and the Guaranty dated May 6,
2002, by and between NDH and Textron, for the benefit of Long Neck (the
"New Dimension Guaranty") (collectively, with all amendments thereto,
the "Guaranties") and (b) the Buyer will not be permitted to assign,
transfer and/or delegate all or any portion of its duties or
obligations under the Textron Repurchase Agreement or Guaranties,
whether to an affiliate of the Buyer or otherwise, without the written
consent of Textron, whose consent shall not be unreasonably withheld as
long as the assignee's assumption of the obligations thereunder are
consistent with Textron's applicable underwriting criteria. The OMH
Guaranty and New Dimension Guaranty shall only be assumed if and when
the Buyer obtains direct or indirect ownership of either NDH or Long
Neck, and in any event such guarantees shall be released upon execution
by Long Neck, Robert W. Tunnell, Jr. ("Tunnell") and James C. Kuhn
("Kuhn") of documents satisfactory to Textron in its sole discretion
pursuant to which Long Neck, Tunnell and Kuhn (i) affirm their
obligations as to all existing and future obligations of Long Neck to
Textron, including those under the Tunnell and Kuhn guaranties, and
(ii) consent to the release of Oakwood Mobile Homes, Inc. and NDH from
liability under the OMH Guaranty and New Dimension Guaranty. The
release of the OMH Guaranty and New Dimension Guaranty shall not effect
Buyer's obligations under the Textron Repurchase Agreement and the
Oakwood Guaranty.
(f) The limited objection to confirmation (D.I.
3771) filed by Associates Housing Finance, LLC ("Associates") is withdrawn.
(g) The limited response (D.I. 3783) filed by
the Creditors' Committee is withdrawn.
(h) The objection (D.I. 3784) filed by the
Federal Housing Administration ("FHA") and the Government Mortgage National
Mortgage Association ("GNMA") is resolved based on the following:
19
Notwithstanding any provision in the Plan or this Order, the
treatment or transfer of any loans backing securities ("GNMA
Securities") by the Government National Mortgage Association ("GNMA")
and any loans ("FHA Loans") insured by the Federal Housing
Administration ("FHA") shall be in accordance with all applicable
federal statutes, regulations and the loan and guaranty agreements
governing such loans and securities. Any rights the GNMA and the FHA
have with respect to such treatment or transfer of the GNMA Securities
and FHA Loans or the prospective conduct by any issuer or servicer of
such GNMA Securities and FHA Loans pursuant to the National Housing
Act, 12 U.S.C. Sections 1701-1749, are specifically preserved, and
shall not be impaired or affected by the Plan or this Order; provided
however, that FHA or GNMA's entitlement to any claim against the
Debtors shall be determined in accordance with applicable law and rules
and all parties' rights with respect to such claim are preserved;
provided further, however, that nothing herein or in the Plan shall
alter (a) any existing rights of setoff or recoupment of GNMA or FHA as
to the Debtors under applicable law or rules or (b) their rights, if
any, under applicable law with respect to any non-debtor parties other
than the Buyer or Berkshire or any of their affiliates (against which
the injunction, releases and exculpation contained in the Plan and the
Order shall apply). The Court makes no ruling as to the terms of any
treatment or transfer of any GNMA Securities or FHA Loans or any rights
or assets associated therewith, and the rights of the GNMA and the FHA
to object to such treatment or transfer, or the terms thereof, is
specifically reserved as set forth herein and survives confirmation.
Notwithstanding the definitions and other provisions of the
Plan and this Order, the determination of whether any Allowed Claim of
FHA and GNMA includes "non-compensatory penalties, fines, punitive
damages, exemplary damages, multiple damages, treble damages or any
other claims or obligations that do not compensate for actual losses
incurred" is deferred, and, if necessary, will be determined by the
Bankruptcy Court in the context of the Claims resolution proceedings,
if any.
To the extent that the GNMA or FHA is, or becomes, entitled to
recover any amounts against the Debtors, any recovery of such amount
shall be limited to the GNMA/FHA Disputed Claim Reserve (as defined
below) of the Liquidation Trust established by the Plan. The amount to
be paid to GNMA or FHA from the Liquidation Trust shall be distributed
pro rata with the same proportion paid to GNMA and to FHA as is
distributed to other creditors of the same Class or Classes under the
Plan. The Liquidation Trust shall establish a reserve from the assets
of the Liquidation Trust in the amount of $70 million (the "GNMA/FHA
Disputed Claim Reserve"), which may be reduced or eliminated by
agreement between GNMA, FHA and the Debtors or the Liquidation Trust,
as applicable, or as a result of a final, unappealable decision on the
merits by a court of competent jurisdiction.
20
(i) The objection (D.I. 3535) filed by David L.
Babson & Company, Inc. ("Babson") is resolved by the establishment of a reserve
in the amount of seven million dollars ($7.0 million) (the "Babson Reserve") to
pay any Allowed Administrative or Cure Claims of Babson or any third-party to
which the Debtors may owe an indemnification or other obligation in connection
with Babson's disputed claim (the "Babson Disputed Claim"), to the extent any
such Claim becomes an Allowed Claim with the following conditions: (i) Babson,
the Debtors and any third-party retain whatever rights, claims and defenses they
have respecting the Babson Disputed Claim, provided however that if Babson
ultimately is determined to have an Allowed Claim against the Debtors, such
Allowed Claim will be governed by the Plan; (ii) no provisions of the Plan and
this Order affect whatever rights the Debtors may have against third parties
respecting the Babson Disputed Claim and do not affect whatever rights Babson
may have against any non-Debtor third parties respecting any claim; and (iii)
prior to the disbursement of any funds from the Babson Reserve, Babson shall
receive ten days written notice of such proposed disbursement. These terms of
settlement resolve Babson's objection to the Plan only, and do not otherwise
resolve the contested matter concerning Babson's Disputed Claim, which contested
matter remains unresolved as of the date of this Order. Notwithstanding anything
to the contrary in this Paragraph, in no event shall the Buyer be liable for
anything related to Babson's Disputed Claim to the extent it accrued prior to
the Effective Date. The remaining portions of Babson's objection have been
withdrawn. Nothing contained in this Paragraph shall affect the rights of
indemnification, insurance and exculpation of the officers and directors from
the Debtors.
(j) The objection (D.I. 3795) filed by National
Loan Investors, L.P. ("NLI") has been resolved by the Modifications and by the
Debtors' representation that the Plan
21
does not alter an oversecured creditor's rights under the Bankruptcy Code and
the Exit Facility does not prime any secured creditor that is not primed by the
current post-petition financing.
(k) Due to the objection (D.I. 3796) filed by
Tunnell Companies, L.P. ("Tunnell"), and notwithstanding anything in the Plan or
this Order (or any documents or agreements approved hereunder) to the contrary,
confirmation of the Plan and the consummation of the Purchase Agreement with the
Buyer shall not be approved by this Court with respect to: (a) Debtors' request
to sell, transfer, cancel or convey Debtors' stock ownership interest in NDH,
(b) the confirmation of the Plan with respect to NDH; and (c) any transactions
respecting NDH's rights, claims and its interests in New Dimension Homes of Long
Neck, L.C.C. (the "ND LLC") including, without limitation, the assumption,
rejection, assignment, sale or transfer of: (i) any membership or economic
interest in the ND LLC; or (ii) the New Dimension Homes of Long Neck, L.L.C.
Operating Agreement (collectively, the "Adjourned Transactions").
Notwithstanding anything in the Plan or this Order (or any documents or
agreements approved hereunder) to the contrary, the objection filed by Tunnell
to the Plan and the Purchase Agreement as it relates to the foregoing is
adjourned to the April 16, 2004 omnibus hearing date in these Chapter 11 Cases
or such other date as the parties agree (the "Adjourned NDH Hearing") and
pending the Adjourned NDH Hearing, the Debtors shall not enter into any of the
Adjourned Transactions absent further order of the Court. Notwithstanding the
foregoing, nothing contained herein shall prejudice the Debtors from seeking the
dismissal of NDH's Chapter 11 Case prior to the Adjourned NDH Hearing upon
notice and a hearing and nothing shall prejudice Tunnell from opposing such
dismissal. The Buyer has agreed to the foregoing and that the ultimate outcome
of this dispute in no way will otherwise affect the transaction
22
under the Purchase Agreement and will not constitute a default, breach or give
rise to a termination right under the Purchase Agreement.
(l) The objection (D.I. 3796) filed by IOS
Capital, LLC ("IOS") is withdrawn.
(m) The objection (D.I. 3800) filed by Gelco
Corporation d/b/a/ GE Fleet Services ("Gelco") is withdrawn.
(n) The objection (D.I. 3811) filed by Pacific
Employers Insurance Company, ACE American Insurance Company and ESIS, Inc. (the
"Insurance Companies") is resolved as set forth on the record.
(o) The objection (D.I. 3845) filed by ARC SPEI
I, L.L.C. ("ARC") is resolved.
(p) The objection (D.I. 3847) filed by The Bank
of New York (the "Bank") is withdrawn.
21. Successors of the Debtors. For purposes of sections
1125(e) and 1145 of the Bankruptcy Code, each of the Liquidation Trust, the
Reorganized Sale Debtors, the Reorganized Stand Alone Debtors, the DOF Escrow
Account, and the Stand Alone Voting Trust, when and if established as provided
in the Plan, will each be a newly organized successor of the Debtors under the
Plan within the meaning of section 1125(e) of the Bankruptcy Code and a
successor to the Debtors under the Plan within the meaning of section 1145(a) of
the Bankruptcy Code, but not for any other purpose, such as, but not limited to,
successor or other liability. The Liquidation Trust is not an insider of the
Debtors, the Reorganized Sale Debtors or the Reorganized Stand Alone Debtors
within the meaning of section 101(31) of the Bankruptcy Code. Except as
expressly assumed in the Purchase Agreement, the Buyer shall not be a
23
successor to the Debtors with respect to any liabilities or Claims, including
but not limited to, any and all OFC and OIC Tax Claims and any and all Future
Claims.
22. Exemption From Securities Laws (11 U.S.C. Section
1145(a)). To the extent, if any, that they constitute "securities," the issuance
and distribution of (i) the Debtors' New Common Stock and (ii) the beneficial
interests of the Liquidation Trust under the Plan have been duly authorized, and
when issued as provided in the Plan, will be validly issued, fully paid and
nonassessable. The offer and sale of the foregoing is in exchange for Claims, or
principally in exchange for Claims and partly for cash or property, within the
meaning of section 1145(a)(1) of the Bankruptcy Code. In addition, under section
1145 of the Bankruptcy Code, to the extent, if any, that the above-listed items
constitute "securities," the "offering" of such items is exempt and the issuance
and distribution of such items will be exempt from section 5 of the Securities
Act of 1933 and any state or local law requiring registration prior to the
offering, issuance, distribution or sale of securities.
23. Good Faith Solicitation; Good Faith Sale of
Securities (11 U.S.C. Section 1125(e)). The Debtors, the Buyer, Berkshire, the
Creditors' Committee, and their employees, directors, members, ex officio
members, agents, accountants, business consultants, representatives, attorneys
and advisors, through their participation in the negotiation, preparation and
confirmation of the Plan and the approval of the Disclosure Statement and their
efforts to confirm the Plan, have solicited acceptances and rejections of the
Plan (or supported the solicitation of acceptances and rejections of the Plan)
in good faith and participated in these Chapter 11 Cases in compliance with the
applicable provisions of the Bankruptcy Code. The Debtors, the Creditors'
Committee, the Buyer, the Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors, the Liquidation Trust, the DOF Escrow Account, Holders of Claims and/or
24
Interests receiving any distributions or other consideration under the Plan, and
their employees, directors, members, ex officio members, trustees, agents,
representatives, attorneys and advisors have participated or will have
participated in good faith and in compliance with the provisions of the
Bankruptcy Code, to the extent applicable, in the offer, sale, issuance and
purchase of the items described in this Order.
24. Assumption and Assignment Determinations.
(a) The Debtors' assumption and, as applicable,
assignment of contracts and leases, pursuant to Article IX of the Plan and
section 365 of the Bankruptcy Code, are authorized pursuant to section
1123(b)(2) of the Bankruptcy Code as reasonable exercises of sound business
judgment, maximize the value of the Debtors' businesses and are in the best
interests of the Estates and all of the Debtors' constituencies and, pursuant to
11 U.S.C. Section 365(k), the Debtors and their Estates shall be relieved of any
liability for any breach of any executory contract or unexpired lease that
occurs after such assignment and assumption by the Debtors on the Effective
Date, except as otherwise set forth in this Order.
(b) Subject to payment of the cure amounts for
the respective contracts and leases to be assumed and assigned, (i) the
contracts and leases assumed and assigned shall constitute valid and existing
contracts or unexpired lease interests in the property subject to such leases,
(ii) none of the Debtors' rights have been or shall be released or waived under
the contracts and leases assumed and assigned, (iii) the contracts and leases
assumed and assigned shall not be terminated and shall remain in full force and
effect, (iv) no default shall exist under the contracts and leases assumed and
assigned, nor shall there exist any event or condition that with the passage of
time or the giving of notice, or both, would constitute such a default, and (v)
the assignment and assumption of the contracts and leases assumed and assigned
in accordance
25
with the Plan shall not constitute a breach of or default under any of such
contracts and leases. The Buyer shall not be subject to or liable for any cure
amounts except as provided in the Plan or Purchase Agreement.
(c) Except to the extent provided herein, no
party to a contract or lease has objected to the ability of the Buyer, the
Reorganized Stand Alone Debtors and/or the Reorganized Sale Debtors to provide
adequate assurance of future performance of the contracts and leases to be
assumed and assigned to each of them within the meaning of section 365(b)(1)(C)
of the Bankruptcy Code with respect to such contracts and leases. Accordingly,
adequate assurance of future performance as to such leases and contracts has
been provided.
(d) No party to a contract or lease has objected
to the ability of the Liquidation Trust to provide adequate assurance of future
performance of the contracts and leases to be assumed and assigned to the
Liquidation Trust within the meaning of section 365(b)(1)(C) of the Bankruptcy
Code with respect to such contracts and leases, or any such objections have been
resolved. Accordingly, adequate assurance of future performance as to such
leases and contracts has been provided.
(e) This Paragraph 24 is subject to Paragraph
39(f) of this Order in its entirety.
25. Discharge, Release, Exculpation, Indemnification,
Injunction and Waiver. Each of the discharge, release, exculpation,
indemnification, injunction, and waiver provisions contained in Article VII of
the Plan:
(a) falls within the jurisdiction of this Court
under 28 U.S.C. Sections 1334(a), (b) and (d);
26
(b) is supported by more than sufficient
consideration and is an essential means of implementing the Plan pursuant to
section 1123(a)(5) of the Bankruptcy Code;
(c) is important to the overall objectives of
the Plan to finally resolve, except to the extent otherwise provided in the
Plan, claims among or against the parties in interest in these Chapter 11 Cases
with respect to the Debtors, their organization, capitalization, operation and
reorganization;
(d) is consistent with sections 105, 1123, 1129
and other applicable provisions of the Bankruptcy Code; and
(e) is necessary because the failure to effect
the discharge, release, injunction, exculpation and waiver provisions of the
Plan would seriously impair the Debtors' ability to confirm the Plan and
consummate the transactions thereunder.
26. Intent to Channel Undischarged and Unreleased OFC and
OIC Tax Claims and Future Claims. The evidence produced in connection with
confirmation of the Plan, the entire record of these Chapter 11 Cases, and the
arguments of counsel made at the Confirmation Hearing clearly establish that it
is the clear intent and expectation of all parties-in-interest, including the
Debtors, the Creditors' Committee, its members and ex officio member, Berkshire,
Holders of Claims or Interests, and the Buyer, that (i) any and all OFC and OIC
Tax Claims and Future Claims, to the extent not otherwise discharged and
released, shall be the sole responsibility and liability of the Reorganized Sale
Debtors (under the Sale Option) or the Reorganized Stand Alone Debtors (under
the Stand Alone Option) and shall not, under any circumstances, be the
responsibility or liability of the Liquidation Trust, Holders of Claims or
Interests, the Debtors or the Buyer; and (ii) all Persons, parties-in-interest,
and Governmental
27
Units (as such term is defined by section 101(27) of the Bankruptcy Code) shall
be forever stayed, restrained and enjoined from taking any action whatsoever
(under successor liability, fraudulent conveyance or any other theory) against
the Liquidation Trust, any Holders of Claims, the Debtors or the Buyer, which
has the purpose or effect of (directly or indirectly) collecting, recovering or
receiving payment of, on or with respect to any undischarged or unreleased OFC
or OIC Tax Claims or Future Claims. The evidence clearly establishes that all
parties-in-interest have relied to their detriment on the validity,
enforceability and effectuation of the foregoing and would not have proposed,
voted in favor of, approved or supported the Plan in the absence thereof.
27. Notice of Channeling Future Claims. The notices which
were transmitted and served by the Debtors in compliance with the Disclosure and
Solicitation Order (including, without limitation, the Solicitation Packages and
the notice by publication set forth in the Publication Affidavits) provided
adequate and sufficient notice to all Holders of undischarged and unreleased OFC
and OIC Tax Claims and Future Claims, if any, that (i) any and all undischarged
and unreleased OFC and OIC Tax Claims and Future Claims are the sole
responsibility and liability of the Reorganized Sale Debtors (under the Sale
Option) or the Reorganized Stand Alone Debtors (under the Stand Alone Option)
and not, under any circumstances, the responsibility or liability of the
Debtors, the Liquidation Trust, Holders of Claims or Interests, or the Buyer,
and (ii) all Persons, parties-in-interest and Governmental Units are forever
stayed, restrained and enjoined from taking any action whatsoever (under a
successor liability, fraudulent conveyance, or any other theory) against the
Liquidation Trust, Holders of Claims or Interests, the Debtors or the Buyer
having the purpose or effect of (directly or
28
indirectly) collecting, recovering or receiving payment of, on or with respect
to any OFC or OIC Tax Claim or Future Claim.
28. Adequate Capitalization of the Reorganized Sale
Debtors. The proposed capitalization of the Reorganized Sale Debtors, as set
forth in this Order and in the Plan, is adequate, reasonable, fair and equitable
and satisfies applicable law. The proposed capitalization of the Reorganized
Sale Debtors is adequate for all purposes, including, without limitation, the
resolution of any and all OFC and OIC Tax and Future Claims, to the extent not
otherwise discharged and released.
29. Cause for Substantive Consolidation. Cause exists for
the substantive consolidation of the Debtors, including, but not limited to, the
following facts: the Debtors have (i) shared a centralized cash management
system, (ii) common officers and directors and (iii) have shared key employees
and outside professionals, including, but not limited to, employees who perform
accounting, legal, human resource and risk management functions for all of the
Debtors, and law firms, accounting firms and consultants who also perform
services for all of the Debtors. The Debtors' request for such consolidation is
unopposed, with no opposition having been filed or otherwise raised.
30. Transfers of Property.
(a) The transfers of property by the Debtors to
the Buyer (i) are or shall be legal, valid and effective transfers of property,
(ii) vest or shall vest the transferee with good title to such property free and
clear of all liens, charges, claims, encumbrances or interests, except as
expressly provided in the Plan, the Purchase Agreement or this Order, (iii) do
not and shall not constitute avoidable transfers under the Bankruptcy Code or
under applicable bankruptcy or nonbankruptcy law, and (iv) do not and shall not
subject the Buyer to any liability
29
by reason of such transfer under the Bankruptcy Code or under applicable
nonbankruptcy law, including, without limitation, any laws affecting successor
or transferee liability.
(b) The transfer of property of the Debtors to
the Liquidation Trust, the Reorganized Sale Debtors, the Reorganized Stand Alone
Debtors, the DOF Escrow Account, the Stand Alone Voting Trust and/or Holders of
Claims or Interests under the Plan (i) are or shall be legal, valid and
effective transfers of property, (ii) vest or shall vest the transferee with
good title to such property free and clear of all liens, charges, claims,
encumbrances or interests, except as expressly provided in the Plan or this
Order, (iii) do not and shall not constitute avoidable transfers under the
Bankruptcy Code or under applicable bankruptcy or nonbankruptcy law, and (iv) do
not and shall not subject the transferee (direct or indirect) to any liability
by reason of such transfer under the Bankruptcy Code or under applicable
nonbankruptcy law, including, without limitation, any laws affecting successor
or transferee liability.
31. Factual Basis for Approval of Rule 9019(a)
Settlements. The Plan as modified by the Modifications and by the provisions of
this Order reflects and incorporates a number of consensual resolutions and
settlements. In addition, this Court has taken into consideration the fact that
the Debtors, as debtors-in-possession, and the Creditors' Committee, Berkshire
and the Buyer all support the settlements embodied in the Plan. This Court has
found that the settlements embodied in the Plan will save the Debtors (and their
creditors) the cost and expense of litigating various disputes, the outcome of
which is not guaranteed and the litigation of which is likely to consume
substantial resources and may require several years to adjudicate. This Court
has also found that the settlements have facilitated the creation and
implementation of the Plan, are thus integral to consummation of the Plan, and
benefit the Holders of all Claims or Interests, creditors and equity holders of
the Consolidated Estate of the Debtors.
30
32. Discharge. Good and sufficient evidence has been
introduced to support the finding that the Debtors and their successors qualify
under section 1141 of the Bankruptcy Code for a discharge as described in
section 7.1 of the Plan.
33. Conditions To Confirmation. Each of the conditions to
confirmation set forth in Section 5.1 of the Plan has been satisfied.
34. Jurisdiction. This Court may properly retain
jurisdiction over each of the matters set forth in Section 11.1 of the Plan and
all determinations regarding the DOF Escrow Account.
II. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
35. Disclosure Statement. The Disclosure Statement as it
relates to the Small Business Debtors is hereby approved.
36. Confirmation. The Plan, as amended by the
Modifications and modified by this Order, is hereby approved and confirmed as to
the Debtors, and all acceptances and rejections previously cast for or against
the Plan are hereby deemed to constitute acceptances or rejections of the Plan
as modified by this Order; provided, however, that the Plan is not confirmed as
to Debtor NDH, and this Order does not bind or otherwise affect NDH or its
Estate except to the extent provided for in this Order.
37. Objections. Each and every objection to the adequacy
of the information contained in the Disclosure Statement has been withdrawn,
waived or settled. Each of the objections to confirmation of the Plan has been
withdrawn, waived or settled. To the extent that pleadings filed by individuals
or entities constitute objections to confirmation of the Plan, such pleadings
have been withdrawn, waived or settled. As set forth in this Order, the
agreements that have been reached to satisfy, resolve and settle the objections
to confirmation of the Plan are
31
hereby approved in accordance with Bankruptcy Rule 9019 and made a decretal part
of this Order.
38. Provisions of Plan and Order Nonseverable and
Mutually Dependent. The provisions of the Plan and this Order, including the
findings of fact and conclusions of law set forth herein, are nonseverable and
mutually dependent.
39. Executory Contracts and Unexpired Leases.
(a) This Confirmation Order shall constitute an
Order of the Court granting the motion by the Debtors contained in the Plan to
assume, assume and assign, or reject as of the Effective Date, all executory
contracts and unexpired leases to which the Debtors are a party in accordance
with Article IX of the Plan and section 365 of the Bankruptcy Code. The Court
hereby authorizes the assumption, assumption and assignment, or rejection of
such executory contracts and unexpired leases as set forth in the Plan.
(b) Each assumed and assigned executory contract
and unexpired lease of the Debtors that relates to the use or occupancy of real
property shall include (i) all modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract
or unexpired lease, and (ii) all executory contracts or unexpired leases
appurtenant to the premises, including all easements, licenses, permits, rights,
privileges, immunities, options, rights of first refusal, powers, uses,
usufructs, reciprocal easement agreements, vaults, tunnel or bridge agreements,
or franchises, and any other interests in real estate or rights in rem related
to such premises, unless any of the foregoing agreements previously has been
rejected pursuant to a Final Order of the Court.
32
(c) All executory contracts or unexpired leases
assumed by the Debtors and assigned during the Chapter 11 Cases or under the
Plan shall remain in full force and effect for the benefit of the assignee
thereof notwithstanding any provisions in any contract or lease (including
provisions of the kinds described in Bankruptcy Code section 365(b)(2) and (f))
that prohibit assignment or transfer thereof or that enable or require
termination or modification of such contract or lease upon assignment thereof
and the respective assignee's undertaking to perform thereunder shall constitute
"adequate assurance of future performance" as required by Bankruptcy Code
section 365(f)(2)(B). Accordingly, such executory contracts, unexpired leases
and other obligation shall survive and remain unaffected by this Order.
(d) The fact that any contract or lease is
listed on the Executory Contract Schedule shall not constitute or be construed
to constitute an admission that such contract or lease is an executory contract
or unexpired lease within the meaning of section 365 of the Bankruptcy Code or
that the Debtors or any successor in interest to the Debtors (including the
Buyer, the Reorganized Sale Debtors, the Reorganized Stand Alone Debtors, the
Liquidation Trust or any other entity created by the Plan) has any liability
thereunder and the Debtors and the successor thereto expressly reserves all
rights with respect thereto.
(e) Unless otherwise noted in the Executory
Contract Schedule or the Purchase Agreement, or any schedule thereto, the cure
amount pursuant to section 365(b)(1) of the Bankruptcy Code for any executory
contracts or unexpired leases is fixed at $0.00, and no other action needs to be
taken in connection with the assumption of such contracts and leases under
section 365(b) of the Bankruptcy Code.
(f) The findings, conclusions and orders of the
Court concerning the (i) Order Pursuant to Sections 105, 363 and 365 of the
Bankruptcy Code Authorizing Certain Debtors
33
to (I) Enter Into or Assume the Asset Purchase Agreement with Clayton Homes,
Inc., (II) Assume and Assign Servicing Agreements, (III) Reject Certain
Subservicing Agreements, and (IV) Sell Related Advance Receivables Free and
Clear of Any Liens, Claims, Encumbrances, Rights of Offset and Recoupment, and
Other Defenses and the (ii) Order Pursuant to Sections 105 and 363 of the
Bankruptcy Code Authorizing Sale of Certain REMIC Securities Free and Clear of
Liens, Claims, Encumbrances, Rights of Offset and Recoupment, and Other Defenses
(collectively, the "SPE Orders") are hereby incorporated into this Order in
their entirety; provided, however, that to the extent the SPE Orders are
inconsistent with this Order, the SPE Orders shall hereby control.
(g) The Buyer shall not be liable for any cure
amounts except as provided in the Plan and Purchase Agreement.
40. The Liquidation Trust.
(a) The creation of the Liquidation Trust, in
accordance with the Plan, the Liquidation Trust Agreement and this Order, is
hereby authorized and approved. The Liquidation Trust shall be created pursuant
to the Plan for the primary purpose of liquidating all of the assets of the
Debtors and the Estates that the Plan provides will be transferred or
distributed to the Liquidation Trust (the "Liquidation Trust Assets") for
distribution to Holders of Allowed Claims in Class 4A, Class 4B, Class 4C, Class
4D and Class 4E (collectively the "Beneficiaries" and each individually, a
"Beneficiary") and creditors of the Liquidation Trust, pursuant to and in
accordance with the Liquidation Trust Agreement, the Plan and the Confirmation
Order, in an expeditious but orderly manner for the benefit of the Beneficiaries
(and the creditors of the Liquidation Trust) and at the direction of the
Beneficiaries, as a liquidating trust in accordance with Treasury Regulation
Section 301.7701-4(d), with no
34
objective to continue or engage in the conduct of a trade or business except, to
the extent reasonably necessary to, and consistent with, the liquidating purpose
of the Liquidation Trust and the Plan.
(b) The Debtors and the Liquidation Trustee,
pursuant to the Plan and the Confirmation Order, and in accordance with the
Bankruptcy Code and applicable tax statutes, rules and regulations, shall create
the Liquidation Trust for the purpose of liquidating the Liquidation Trust
Assets in an expeditious but orderly manner with no objective to continue or
engage in the conduct of a trade or business Section In particular, the
Liquidation Trustee shall (i) make continuing efforts to collect and reduce the
Liquidation Trust Assets to Cash (other than Liquidation Trust Assets, if any,
that are distributed in kind under the Plan); (ii) make timely distributions on
account of Allowed Claims with respect to the Liquidation Trust Assets pursuant
to the Plan and the Liquidation Trust Agreement and not unduly prolong the
duration of the Liquidation Trust; and (iii) take such steps as are reasonably
necessary to accomplish such purpose, all as more fully provided in, and subject
to the terms and provisions of, the Plan, the Confirmation Order and the
Liquidation Trust Agreement, including, without limitation, entering into escrow
and other agreements to satisfy all obligations under the Plan, this Order and
the Liquidation Trust Agreement.
(c) Notwithstanding any provision of Delaware
law or any other applicable law to the contrary, the Liquidation Trustee shall
not have authority to engage in any trade or business, and no portion of the
Liquidation Trust Assets shall be used in the conduct of a trade or business,
except as is reasonably necessary for the prompt and orderly collection and
reduction to Cash of the Liquidation Trust Assets.
35
(d) The provisions of the Liquidation Trust
Agreement providing for the indemnification of the Liquidation Trustee by the
Liquidation Trust are reasonable and appropriate and such provisions are hereby
approved.
(e) The Liquidation Trust shall provide
reasonable non-economic assistance to the Reorganized Sale Debtors, including
reasonable access to employees and books and records and reasonable assistance
in connection with the preparation of tax returns.
(f) Furthermore, to the extent it deems it
necessary or appropriate, the Liquidation Trust is authorized to expend funds
from its administrative expense reserve to assist the Reorganized Sale Debtors
on matters that are of reasonable benefit to the Liquidation Trust's
Beneficiaries. The Reorganized Sale Debtors shall help facilitate the
Liquidation Trust becoming a co-insured under any policies of insurance retained
or purchased by the Reorganized Sale Debtors, to the extent that (i) the
Liquidation Trust desires becoming a co-insured entity under such policies and
(ii) it is reasonable for the Reorganized Sale Debtors to do so.
(g) Rights of the Liquidation Trust to abandon
or otherwise not accept any Excluded Sale Trust Assets in accordance with
Section 6.1(c) of the Plan are hereby approved.
41. Trust as Grantor Trust. The Debtors, the Reorganized
Sale Debtors, Liquidation Trust and the creditors receiving interests in the
Liquidation Trust will, for U.S. federal income tax and corporate law purposes,
treat the transfer of any assets to the Liquidation Trust as a transfer by the
Debtors to the creditors receiving interests in the Liquidation Trust in respect
of their Claims followed by a transfer of the assets by those creditors to the
Liquidation Trust. Consistent with such treatment, the creditors will be treated
as the grantors and initial beneficiaries of the Liquidation Trust. The Debtors,
the Reorganized Sale Debtors, the
36
Liquidation Trustee and the creditors receiving interests in the Liquidation
Trust will, for U.S. federal income tax purposes, treat the Liquidation Trust as
a grantor trust and apply consistent valuations to the property transferred to
the Liquidation Trust in accordance with the terms of the Liquidation Trust
Agreement.
42. The Stand Alone Voting Trust. Under the Stand Alone
Option of the Plan, the creation of the Stand Alone Voting Trust, in accordance
with the provisions of the Plan, the Stand Alone Voting Trust Agreement and this
Order, is hereby authorized and approved. The purpose of the Stand Alone Voting
Trust shall be to hold the New Common Stock in reserve for Disputed Claims for
each of the relevant Classes (or group of Classes in the case of Class 4), as
necessary pursuant to the Plan. The Reorganized Stand Alone Debtors shall be
responsible for and shall indemnify the Stand Alone Voting Trust for any
reasonable costs of administration, including, without limitation, the payment
of fees earned by the Stand Alone Voting Trustees under the Stand Alone Voting
Trust Agreement and reasonable professional costs.
43. Discharge, Injunction, Release, and Exculpation.
(a) Discharge. Pursuant to section 1141 of the
Bankruptcy Code, confirmation of the Plan shall discharge parties as set forth
in Section 7.1 of the Plan, except as otherwise provided herein. Confirmation of
the Plan shall also operate as a discharge of (i) with respect to the
Liquidation Trust, the Buyer and Holders of Claims or Interests, all OFC and OIC
Tax Claims, and (ii) with respect to Buyer and all other transferees of assets
of the Estates under the Plan, all Future Claims.
(b) Injunction. Confirmation of the Plan shall
enjoin any Person or Governmental Unit as set forth in Sections 7.6 and 7.8 of
the Plan, except as otherwise provided herein. Confirmation of the Plan shall
also operate to enjoin the prosecution of (i) with respect to
37
the Liquidation Trust, the Buyer and Holders of Claims or Interests, all OFC and
OIC Tax Claims, and (ii) with respect to Buyer and all other transferees of
assets of the Estates under the Plan, all undischarged and unreleased Future
Claims.
(c) Release of Collateral. Confirmation of the
Plan shall release the liens in the manner set forth in Section 7.11 of the
Plan, except as otherwise provided herein.
(d) Treatment of Intercompany Claims.
On the Effective Date, the following shall occur in the order prescribed:
(i) The Claims of any Debtor against
any other Debtor or any non-Debtor affiliate and Claims of any non-Debtor
affiliate against such Debtor shall be set off against each other in accordance
with section 553 of the Bankruptcy Code and any applicable nonbankruptcy law.
(ii) If, after giving effect to the
setoff described in clause (i) of this Subparagraph, any non-Debtor affiliate
has any remaining Intercompany Claim against any Debtor, that Claim shall be
transferred by such non-Debtor Affiliate to such Debtor and extinguished.
(iii) All Intercompany Claims held by
Oakwood (including for this purpose any Claims held by Oakwood against any
non-Debtor affiliate) shall be contributed to the capital of the obligor of such
Claims.
(iv) All other Intercompany Claims not
so setoff or contributed in accordance with clauses (i) - (iii) of this
Subparagraph (d) shall be extinguished, and no distribution shall be made under
the Plan with respect to such Claim.
38
Nothing in this Confirmation Order shall be construed to authorize any treatment
of the Intercompany Claims or any other intercompany obligations that is
inconsistent with or would violate the Purchase Agreement.
(e) Avoidance and Recovery Actions. Any and all
Causes of Action shall be preserved in accordance with Section 7.2 of the Plan,
except as otherwise provided herein or the Order approving the settlement
agreement between JPMorgan, the Debtors, U.S. Bank National Association and
National Indemnity Company (D.I. 3898).
(f) Exculpation. Confirmation of the Plan shall
operate to exculpate those parties as set forth in Section 7.7 of the Plan,
except as otherwise provided herein.
(g) Officers and Directors. Notwithstanding
anything to the contrary in the Plan or this Order, any rights of
indemnification of the Debtors' officers and directors shall continue
unaffected, so long as they timely file claims in respect thereof.
(h) Channeling of Undischarged and Unreleased
OFC and OIC Tax Claims and Future Claims. All OFC and OIC Tax Claims and Future
Claims, to the extent not otherwise discharged or released under the Plan and/or
this Order, shall be solely the responsibility and liability of the Reorganized
Sale Debtors (under the Sale Option) or the Reorganized Stand Alone Debtors
(under the Stand Alone Option) and shall not, under any circumstances, be the
responsibility or liability of the Debtors, the Liquidation Trust, Holders of
Claims or Interests, or the Buyer. All Persons, parties-in-interest and
Governmental Units are hereby forever stayed, restrained and enjoined from
taking any action whatsoever (under successor liability, fraudulent conveyance
or any other theory) against the Debtors, the Liquidation Trust, Holders of
Claims or Interests, or the Buyer having the purpose or effect of
39
(directly or indirectly) collecting, recovering or receiving payment of, on or
with respect to any OFC or OIC Tax Claims or Future Claim, including, without
limitation:
(i) Commencing, conducting, or continuing in any manner,
directly or indirectly, any suit, action or other
proceeding (including, without limitation any thereof
in a judicial, arbitral, administrative or other
forum) against or affecting the Debtors, the
Liquidation Trust, Holders of Claims or Interests,
the Buyer or any of their property;
(ii) Enforcing, levying, attaching (including, without
limitation, any pre-judgment attachment), collecting
or otherwise recovering by any means or in any
manner, whether directly or indirectly, any judgment,
award, decree or other order against the Debtors, the
Liquidation Trust, Holders of Claims or Interests,
the Buyer or any of their property;
(iii) Creating, perfecting or otherwise enforcing in any
manner, directly or indirectly, any Liens or
encumbrance against the Debtors, the Liquidation
Trust, Holders of Claims or Interests, the Buyer or
any of their property;
(iv) Setting-off, seeking reimbursement of, contribution
from or subrogation against or otherwise recouping in
any manner, directly or indirectly, any amount
against any liability owed to the Debtors, the
Liquidation Trust, Holders of Claims or Interests,
the Buyer or any of their property; and
(v) Proceeding in any manner and any place with regard to
any undischarged and unreleased OFC or OIC Tax Claims
or Future Claims that are to be dealt with by the
Reorganized Sale Debtors or Reorganized Stand Alone
Debtors,
40
except by proceeding against the Reorganized Sale
Debtors or Reorganized Stand Alone Debtors in
accordance with the Plan.
44. Release of the Debtors' Claims. As of the Effective
Date, the Debtors shall be deemed to have waived and released any and all Causes
of Action of the Debtors (including claims which the Debtors otherwise have
legal power to assert, compromise or settle in connection their Chapter 11
Cases) arising on or before the Effective Date as provided by and subject to
Section 7.5 of the Plan, unless otherwise provided herein.
45. Approval of Rule 9019(a) Settlements. The settlements
embodied in the Plan and this Order are approved in all respects pursuant to
Bankruptcy Rule 9019(a).
46. Approval of Initial Members of the Liquidation Trust
Advisory Committee, the Liquidation Trust, the Stand Alone Voting Trust, and the
Officers and Directors of the Reorganized Sale Debtors and Stand Alone Debtors.
The appointment of Joseph Mullin, James Baskin, Brad Scher, Alan Halperin and
Kaliel Isaza Tuzman as the initial members of the Liquidation Trust Advisory
Committee is approved. The appointment of Alvarez & Marsal, LLC as the
Liquidation Trustee is approved. The appointment of Richard M. Hutson, II, as
the sole officer, director or other such responsible person of the Reorganized
Sale Debtors is approved. The appointment of Brad Scher, Alan Halperin and
Kaliel Isaza Tuzman as the Stand Alone Voting Trustees is approved. The
appointment of Anthony Schnelling, Daniel Crowley, Martin Mand, Donald Thomas
and Myles Standish (as Chief Executive Officer) as the members of the board of
directors of the Reorganized Stand Alone Debtors is approved. The Liquidation
Trust Advisory Committee, the Liquidation Trustee, the initial board of
directors of the Reorganized Stand Alone Debtors, the Stand Alone Voting
Trustees and the sole officer, director or other such responsible person of the
Reorganized Sale Debtors are authorized to carry out all
41
duties as set forth in the Plan, the Liquidation Trust Agreement, amended
articles of incorporation, amended bylaws, and the Stand Alone Voting Trust
Agreement, as appropriate.
47. Environmental Laws. In no event will the Liquidation
Trust or the Reorganized Sale Debtors have liability for any obligations that
arise after the Effective Date related to property owned or operated by the
Buyer or its successor under the Plan so long as, after the Effective Date, it
is neither an owner or operator of such property and does not arrange for the
disposal of hazardous substances on such property. Furthermore, in no event will
the Liquidation Trust or the Reorganized Sale Debtors have liability arising
from events or circumstances occurring prior to the Effective Date of the Plan
and related to property owned or operated by the Debtors or their successors
after the Effective Date of the Plan, except to the extent that any such
liability of the Debtors or its successors described herein could not have been
discharged under bankruptcy law in these Chapter 11 Cases.
48. General Authorizations. The Debtors, the Liquidation
Trust, the Reorganized Sale Debtors, and the Reorganized Stand Alone Debtors are
hereby authorized and empowered pursuant to section 1142(b) of the Bankruptcy
Code to implement the Plan in accordance with its terms, including (to the
extent not inconsistent with the Plan):
(a) Execute and deliver, and take such action as
is necessary to effectuate the terms of, the all notes, instruments, securities,
agreements and documents in substantially the form of such notes, instruments,
securities, agreements or documents attached as exhibits to the Plan, the Plan
Supplement, the Disclosure Statement or to be filed with this Court on or before
Effective Date, including all annexes and exhibits attached thereto, and any
other documents delivered in connection with those exhibits.
42
(b) Issue, execute, deliver, file and record any
documents, Bankruptcy Court papers or pleadings, and to take any and all actions
that are necessary or desirable to implement, effect or consummate the
transactions contemplated by the Plan, including, without limitation, actions
take to effectuate the Purchase Agreement, whether or not specifically referred
to in the Plan or related documents.
(c) Issue the notes, securities and other
instruments contemplated by the Plan, including, but not limited to, the New
Common Stock and Liquidation Trust beneficial interests.
(d) File with the appropriate Secretaries of
State the Amended Certificates of Incorporation, if necessary, and, if
appropriate, other documents required to implement the Plan and this Order.
(e) Make the transfers, contributions, setoffs
and other matters and execute and deliver such instruments (including as
required to issue evidence of intercompany liabilities among the Reorganized
Sale Debtors or Reorganized Stand Alone Debtors), required to give effect to the
provisions of the Plan.
(f) Make transfers of assets among the Debtors,
provided such transfers are not inconsistent with the Plan to give effect to the
Purchase Agreement, and to transfer Excluded Assets to the appropriate entity
under the Plan.
49. Recapitalization and Restructuring of the Reorganized
Sale Debtors. In accordance with the Plan, (a) the Residual REMIC Certificates
and all insurance policies shall constitute the Excluded Sale Debtor Assets and
(b) $5,000,000.00, $4,000,000.00 of which shall be transferred to the DOF Escrow
Account on the Effective Date, shall constitute the Reorganized Sale Debtors
Capitalization Amount. Additionally, consistent with Section 6.1(d)
43
of the Plan, on the Effective Date each of the Affiliate Debtors under this
Plan, other than OFC, OIC, and NDH (pending the resolution of the objection
referenced in Paragraph 20(k) herein), will merge with and into Oakwood or
otherwise be dissolved as determined by the Debtors.
50. Authorization of the Sole Officer and Director of the
Reorganized Sale Debtors. Pursuant to the Plan and to applicable state law
governing reorganizations of corporations and other business organizations under
the provisions of statutes of the United States relating to the reorganization
of corporations and such other business organizations (including, without
limitation, N.C.G.S. Section 55-14A-01, N.R.S. Section 78.622(l); M.C.L.S.
Section 450.1861; 8 Del C. Section 303; collectively, the "State Laws"), as of
the Effective Date, Richard M. Hutson, II (a) shall be appointed to serve as the
sole officer and director with authority to govern those Reorganized Sale
Debtors which are corporations without further approval or any corporate action
by the board of directors or shareholders of such corporation; (b) shall have
the authority to act on behalf of the Reorganized Sale Debtors which are the
members of those Reorganized Sale Debtors which are limited liability companies;
(c) shall have the authority to act on behalf of the general partners and the
limited partners of those Reorganized Sale Debtors which are partnerships and
which have Reorganized Sale Debtors as their general and limited partners; (d)
in each such capacity, Richard M. Hutson, II shall have the authority to approve
and file any article or certificate of merger or plan of merger or article or
certificate of liquidation or dissolution and to execute, deliver and record any
document or take any other action necessary or desirable to effect the merger,
liquidation or dissolution of any Reorganized Sale Debtor with and into any
other Reorganized Sale Debtor in order to ultimately effect the merger,
liquidation or dissolution of all Reorganized Sale Debtors into Reorganized Sale
OKWD, with the exception of Oakwood Investment Corporation and Oakwood Financial
44
Corporation; and (e) in each such capacity, shall have the authority to approve
and file any documents and take all actions necessary to effect the dissolution
and liquidation of any of the Reorganized Sale Debtors, including Reorganized
Sale OKWD (including the limitation on the transferability of shares of
Reorganized Sale OKWD). The sole officer and director shall have authority to
act on behalf of any entity without further approval of such action by corporate
directors, shareholders, equity holders, limited partners or any other
constituencies. In their capacity as proponents of the Plan, each Reorganized
Sale Debtor has evidenced both its approval of the appointment of Richard M.
Hutson, II as a single disinterested individual to serve as the sole officer and
director or in similar appropriate capacity for other types of business
organizations with all of the powers authorized by the State Laws and its
approval of any merger, liquidation or dissolution transaction.
51. Disputed Ownership Fund Escrow Agreement.
(a) In order to provide for resolution of
conflicting claims of ownership of certain funds, the Reorganized Sale Debtors
and the Liquidation Trust shall become parties to the Disputed Ownership Fund
Escrow Agreement (the "Escrow Agreement"), pursuant to which the Reorganized
Sale Debtors shall fund an escrow account (the "DOF Escrow Account") with
$4,000,000 in cash (the "Disputed Funds", the Disputed Funds, plus all interest
thereon received by the escrow agent, less the amount of any funds distributed
or paid in accordance with the Escrow Agreement, collectively, the "Escrowed
Property"). Disbursements from the DOF Escrow Account to the Reorganized Sale
Debtors or at the direction of the Reorganized Sale Debtors are hereby approved
(i) for the payment of reasonable attorneys fees, consultation fees, experts
fees, and Future Claims administration costs incurred by the Reorganized Sale
Debtors in administering and defending claims asserted against the
45
Reorganized Sale Debtors after the Effective Date; and (ii) for the payment of
settlement amounts up to and including $5,000 in any one matter.
(b) The foregoing authorization of disbursement
to the Reorganized Sale Debtors may be modified or withdrawn, in any specific
instance, upon motion of the Liquidation Trust and Order of this Court upon a
showing that the expenditures are not reasonable or that the settlement amounts
do not represent a reasonable business judgment on the part of the Reorganized
Sale Debtors or are not otherwise appropriate.
(c) Disbursements from the DOF Escrow Account to
the Reorganized Sale Debtors or at the direction of the Reorganized Sale Debtors
for the payment of settlement amounts in excess of $5,000 shall be made only
pursuant to further Order of this Court, entered upon the motion of the
Reorganized Sale Debtors, after appropriate notice to the Liquidation Trust.
(d) When the Liquidation Trust is prepared to
make a final distribution to its Beneficiaries, it shall give 30 days notice to
the Reorganized Sale Debtors of the Liquidation Trusts' intention to withdraw
the balance of the DOF Escrow Account (or such portion of the balance as may be
specified in such notice). The Liquidation Trust's withdrawal of the balance of
the DOF Escrow Account (or such portion of the balance as may be specified in
such notice) is hereby approved without further order of the Court, provided
that the Reorganized Sale Debtors have not filed a motion for an order
prohibiting such withdrawal within 30 days after receipt of the withdrawal
notice. If the Reorganized Sale Debtors shall file a motion opposing such
disbursement, the Court shall hear and determine the motion as expeditiously as
possible. All burdens of proof and persuasion with respect to such motion shall
be borne by the Reorganized Sale Debtors.
46
(e) The Debtors, the Reorganized Sale Debtors,
the Liquidation Trust and the beneficiaries of the Liquidation Trust will, for
U.S. federal income tax purposes treat the DOF Escrow Account (A) as a "disputed
ownership fund" (within the meaning of United States Proposed Treasury
Regulations section 1.468B-9) that is taxable in accordance with United States
Proposed Treasury Regulations section 1.468B-9(c) and (B) as the owner of the
Escrow Property.
52. Cancellation of Interests. Under the Stand Alone
Option, effective as of one Business Day after the Effective Date, except as
provided in the Plan or in Paragraph 20(k) of this Order, the Interests shall be
cancelled and be deemed null and void and worthless and the Reorganized Stand
Alone Debtors shall have no further obligations respecting such Interests.
53. Limitation on Dividends. Under the Sale Option of the
Plan, the Reorganized Sale Debtors shall file appropriate amendments to their
articles of incorporation prohibiting the payment of dividends or other
distributions to shareholders except for any final distribution payable to
shareholders upon the completion of the Reorganized Sale Debtors dissolution and
wind-down operations.
54. Exemption From Stamp Taxes.
(a) Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance, transfer, or exchange of any security, or the
making, delivery, filing, or recording of any instrument of transfer under the
Plan shall not be taxed under any law imposing a stamp tax, or similar tax.
(b) Without limiting the generality of
Subparagraph (a) of this Paragraph, the making, delivery, filing, or recording
at any time of any deed, bill of sale, mortgage, leasehold mortgage, deed of
trust, leasehold deed of trust, memorandum of lease,
47
notice of lease, assignment, leasehold assignment, security agreement, financing
statement, or other instrument of absolute or collateral transfer required by,
or deemed necessary or desirable by the parties to, the mergers contemplated in
the Plan or the parties to the Purchase Agreement, and other agreements or
instruments related thereto shall not be so taxed.
(c) All filing or recording officers, wherever
located and by whomever appointed, are hereby directed to accept for filing or
recording, and to file or record immediately upon presentation thereof, all such
deeds, bills of sale, mortgages, leasehold mortgages, deeds of trust, leasehold
deeds of trust, memoranda of lease, notices of lease, assignments, leasehold
assignments, security agreements, financing statements, and other instruments of
absolute or collateral transfer without payment of any stamp tax, or similar tax
imposed by federal, state, or local law. Notice in the form annexed hereto as
Exhibit E, (i) shall have the effect of an Order of this Court, (ii) shall
constitute sufficient notice of the entry of this Order to such filing and
recording officers, and (iii) shall be a recordable instrument notwithstanding
any contrary provision of nonbankruptcy law. This Court specifically retains
jurisdiction to enforce the foregoing direction, by contempt or otherwise.
55. Treatment of New Common Stock and Beneficial
Interests. To the extent, if any, that they constitute "securities," the
issuance and distribution of (i) the New Common Stock (including distributions
into and out of the Stand Alone Voting Trust) and (ii) the beneficial interests
in the Liquidation Trust under the Plan have been duly authorized, and when
issued as provided in the Plan, will be validly issued, fully paid and
nonassessable. In addition, under section 1145 of the Bankruptcy Code, to the
extent, if any, that the above-listed items constitute "securities," the
offering of such items is exempt and the issuance and distribution of
48
such items will be exempt from section 5 of the Securities Act of 1933 and any
state or local law requiring registration prior to the offering, issuance,
distribution or sale of securities.
56. Conflicts. In the event of any conflict or
inconsistency between the terms of the Plan, this Order, the Disclosure
Statement, the Purchase Agreement or any other documents or agreements
authorized or controlled by the Plan or this Order, Section 11.8 of the Plan
shall control.
57. Recoupment. Nothing in the Plan or this Confirmation
Order shall bar assertion of any recoupment claim or defense. Without limiting
the generality of the foregoing, nothing in the Plan or this Confirmation Order
shall in any way bar a consumer from asserting a recoupment claim or defense
against a holder of a loan contract pursuant to applicable Federal or state
truth-in-lending laws or similar consumer credit protection laws, including, but
not limited to, recoupment under FTC Trade Regulation Rule 433.2, CFR 433.2, or
15 U.S.C. Sections 1601, et seq.
58. Dissolution of the Official Committee of Unsecured
Creditors. On the Effective Date, the Creditors' Committee shall be deemed
dissolved in accordance with and subject to Section 6.3(h) of the Plan.
59. Privileges. The Liquidation Trust, the Reorganized
Sale Debtors (under the Sale Option) and the Reorganized Stand Alone Debtors
(under the Stand Alone Option) shall constitute successors of the Debtors for
purposes of continuing the privileged nature of any such communications shared
with them.
60. Sale of Assets to the Buyer. The sale of the Debtors'
assets to the Buyer pursuant to the Sale Option of the Plan and the Order
Approving and Confirming Results of Auction with Respect to Proposed Sale
Pursuant to Plan of Reorganization (D.I. 3449) is
49
approved pursuant to Bankruptcy Code sections 363, 365, 1123, and 1129. The
Buyer and Berkshire have acted in good faith for the purposes of Bankruptcy Code
section 363(m) with respect to the Purchase Agreement and the sale of the
Debtors' Assets.
61. Approval of Plan-Related Documents. The Purchase
Agreement, including all other documents attached thereto and incorporated
therein, and all other documents necessary to consummate the Purchase Agreement
with the Buyer and all documents necessary to consummate the Stand Alone Option
under the Plan, are approved in all respects and all parties thereto are
authorized and directed to perform all of their obligations thereunder. All
documents in the Plan Supplement, which are in substantially final form, are
approved; such documents may be modified or amended as necessary to implement
the Plan in accordance with this Order and the Plan. The Debtors, the
Reorganized Sale Debtors, the Liquidation Trust and the Buyer are authorized to
enter into any other such agreement or make amendments to the Purchase Agreement
or Plan Supplement documents as necessary to implement the Plan in accordance
with this Order and the Plan.
62. Revesting and Transfers of Property.
(a) Pursuant to section 1141(b) of the
Bankruptcy Code, the assets and property of the Estates and of the Debtors shall
vest, revest or be transferred in accordance with Section 6.1(c) of the Plan
under the Sale Option of the Plan and Section 6.2(a) of the Plan under the Stand
Alone Option of the Plan.
(b) Each of the transfers of property by the
Debtors to the Buyer shall be made by Debtors and transferred to the Buyer on
the Effective Date. Each of the transfers of property by Debtors to the Buyer
(i) are or shall be legal, valid and effective transfers of property, (ii) vest
or shall vest the Buyer with good title to such property free and clear of all
50
liens, charges, claims, encumbrances or interests, except as expressly provided
in the Plan, the Purchase Agreement or this Order (including without limitation
any and all OFC and OIC Tax Claims and Future Claims), (iii) do not and shall
not constitute avoidable transfers under the Bankruptcy Code or under applicable
bankruptcy or nonbankruptcy law, and (iv) do not and shall not subject the Buyer
to any liability by reason of such transfer under the Bankruptcy Code or under
applicable nonbankruptcy law, including, without limitation, any laws affecting
successor or transferee liability.
(c) Each of the transfers of property by the
Debtors to the Liquidation Trust, the Reorganized Sale Debtors, the Reorganized
Stand Alone Debtors, the DOF Escrow Account, the Stand Alone Voting Trust and/or
Holders of Claims or Interests shall be made by Debtors and transferred to the
transferee on the Effective Date. Each of the transfers of property by the
Debtors to the Liquidation Trust, the Reorganized Sale Debtors, the Reorganized
Stand Alone Debtors, the DOF Escrow Account, the Stand Alone Voting Trust and/or
Holders of Claims or Interests under the Plan (i) are or shall be legal, valid
and effective transfers of property, (ii) vest or shall vest the transferee with
good title to such property free and clear of all liens, charges, claims,
encumbrances or interests, except as expressly provided in the Plan or this
Order (including without limitation any and all OFC and OIC Tax Claims and
Future Claims), (iii) do not and shall not constitute avoidable transfers under
the Bankruptcy Code or under applicable bankruptcy or nonbankruptcy law, and
(iv) do not and shall not subject the transferee (direct or indirect) to any
liability by reason of such transfer under the Bankruptcy Code or under
applicable nonbankruptcy law, including, without limitation, any laws affecting
successor or transferee liability.
51
63. Termination of the Final DIP Agreement. Subject to
the payment in full of all amounts owed under the Final DIP Agreement or other
such treatment as agreed to by the Debtors and the DIP Lenders, on the Effective
Date, the obligations arising under the Final DIP Agreement shall be deemed to
have terminated. Notwithstanding any provision of the Plan to the contrary,
under the Sale Option, the Debtors are authorized to pay all amounts due and
owing, if any, under the Final DIP Agreement, and such amounts shall be paid in
full from the Purchase Consideration on or as soon as reasonably practicable
after the Effective Date as Allowed Administrative Claims, and upon such payment
in full all liens, mortgages and security interests granted under the Final DIP
Agreement shall automatically be extinguished without the need for any filings
or further actions under the state or federal laws, and all authorities shall be
authorized to accept the Confirmation Order and notice of Effective Date as a
release or satisfaction of all such liens, mortgages and security interests. To
the extent any further obligations are presented for payment as obligations
under the Final DIP Agreement, such obligations will be paid by the Liquidation
Trust as Administrative Claims to the extent such obligation are valid Allowed
Administrative Claims. Under the Stand Alone Option, the Debtors and the
Reorganized Stand Alone Debtors are authorized to pay all amounts due and owing,
if any, under the Final DIP Agreement, and such amounts shall be paid in full on
or as soon as reasonably practicable after the Effective Date as Allowed
Administrative Claims, and upon such payment in full all liens, mortgages and
security interests granted under the Final DIP Agreement shall automatically be
extinguished without the need for any filings or further actions under the state
or federal laws, and all authorities shall be authorized to accept the
Confirmation Order and notice of Effective Date as a release or satisfaction of
all such liens, mortgages and security interests.
52
64. Approval of the Exit Facility Agreement. Under the
Stand Alone Option, the Exit Facility Agreement, including all other documents
attached thereto and incorporated therein, including those documents in the Plan
Supplement, are approved in all respects and all parties thereto are authorized
and directed to perform all of their obligations thereunder.
65. Substantive Consolidation of Consolidating Debtors.
Pursuant to sections 105 and 1123 of the Bankruptcy Code and Section 6.3 of the
Plan, on the Effective Date, the Estates of the Debtors shall be substantively
consolidated solely as and to the extent set forth in Section 6.3 of the Plan.
66. Plan and Confirmation Order Binding. Pursuant to
section 1141 of the Bankruptcy Code, subject to the occurrence of the Effective
Date, and except as expressly provided in the Plan or this Order, the provisions
of the Plan, the Purchase Agreement, and this Order shall be binding upon (a)
the Debtors, (b) the Reorganized Sale Debtors, (c) the Reorganized Stand Alone
Debtors, (d) the DOF Escrow Account, (e) the Stand Alone Voting Trust, (f) the
Liquidation Trust, (g) all Holders of Claims against or Interests in the
Debtors, whether or not impaired under the Plan and whether or not, if impaired,
such holders accepted the Plan, (h) the Buyer and any other Person acquiring
property under the Plan, (i) any other party in interest, (j) any Person or
Governmental Unit making an appearance in these Chapter 11 Cases, and (k) each
of the foregoing's respective heirs, successors, assigns, trustees, executors,
administrators, affiliates, officers, directors, agents, representatives,
attorneys, beneficiaries or guardians.
67. Supremacy of Confirmation Order. Except as otherwise
set forth herein, this Confirmation Order shall supersede any Orders of the
Court issued prior to the Confirmation Date to the extent that those prior
Orders may be inconsistent with the Confirmation Order.
53
68. Plan Provisions to Be Given Effect. The failure
specifically to include or reference any particular provision of the Plan in
this Order shall not diminish or impair the effectiveness of such provision, it
being the intent of the Court that the Plan be confirmed in its entirety.
69. Plan Classification Controlling. The classification
of Claims for purposes of payment of the Distributions to be made under the Plan
is governed solely by the terms of the Plan. The classifications set forth on
the Ballots tendered to or returned by the creditors of the Debtors in
connection with voting on the Plan (a) were set forth thereon solely for
purposes of voting on the acceptance or rejection of the Plan, (b) do not
necessarily represent and in no event shall be deemed to modify or otherwise
affect the actual classification of such claims under the terms of the Plan for
distribution purposes, and (c) may not be relied upon by any creditor as
actually representing the actual classification of such claims under the terms
of the Plan for distribution purposes.
70. The Record. Except for any orders issued in aid of
confirmation at the request of the Debtors or the Creditors' Committee, the
record of the Confirmation Hearing is closed. The findings of fact and
conclusions of law of this Court set forth herein and at the Confirmation
Hearing shall constitute findings of fact and conclusions of law pursuant to
Bankruptcy Rule 7052, as made applicable herein by Bankruptcy Rule 9014, and the
findings of fact and conclusions of the Court at the Confirmation Hearing are
incorporated herein by reference. To the extent necessary to address and resolve
the objection of Tunnell discussed in Paragraph 20(k) above, the Record may be
supplemented solely as to Debtor NDH or with respect to the stock of Debtor NDH,
and such supplementation shall in no way impact or effect the closing of the
record of the Confirmation Hearing as to the remaining Debtors, nor shall it
54
impact the closing of the Purchase Agreement or consummation of the Plan with
respect to the assets of the Debtors other than NDH, except that such closing or
consummation shall not result in or cause: (i) the confirmation of the Plan with
regard to NDH; (ii) a disposition of any of the assets of NDH; or (iii) a
disposition of any of the stock of NDH.
71. Final Fee Application for Professional Fees. Unless
otherwise Ordered by the Court, all final applications for payment of Fee Claims
shall be filed and served in accordance with Section 2.9 of the Plan. The Court
shall retain jurisdiction to determine such fee requests, and the right to
extend or change the timetables established herein.
72. Failure to Consummate Plan. If the Effective Date
does not occur, then: (a) this Order shall be vacated and shall be of no further
force and effect, (b) no distributions under the Plan shall be made, (c) the
Debtors and all holders of Claims and Interests shall be restored to the status
quo ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date never occurred, and (d) the Debtors' obligations with respect
to Claims and Interests shall remain unchanged. In such event, nothing contained
in this Order, any Order in aid of consummation of the Plan, or the Plan, and no
acts taken in preparation for consummation of the Plan, (a) shall be deemed to
constitute a waiver or release of any Claims or Interests by or against any
member of the Debtors or any other Person, to prejudice in any manner the rights
of the Debtors or any Person or entity in any further proceedings involving the
Debtors, or to constitute an admission of any sort by the Debtors or any other
Person as to any issue, including, without limitation, issues relating to the
ownership by or the rights of the Debtors in all or any part of the property
(including inventory) owned, sold, held by or in the possession of any Debtors
or (b) shall be construed as a finding of fact or conclusion of law in respect
thereof.
55
73. Retention of Jurisdiction. This Court shall retain
jurisdiction in accordance with the terms of Section 11.1 of the Plan, the other
provisions of this Order, and section 1142 of the Bankruptcy Code.
74. Notice of Entry of Confirmation Order. In accordance
with Bankruptcy Rules 2002 and 3020(c), on or before the Effective Date, the
Debtors (or its successors or agents) shall give notice of the entry of this
Order, in substantially the form of the proposed notice attached as Exhibit E
hereto (the "Notice of Confirmation"), which is hereby approved, by United
States first class mail postage prepaid, by hand or by overnight courier service
to, without duplication, (a) the United States Trustee, (b) counsel for the
Committee, (c) counsel for DIP Lenders, (d) the Securities and Exchange
Commission, (e) the entities that requested notice of amendments to the Plan,
the Disclosure Statement and other documents or who objected to the Disclosure
Statement or confirmation of the Plan, (f) entities that requested notices under
Bankruptcy Rule 2002, (g) the Internal Revenue Service, (h) the United States
Attorney for the District of Delaware, (i) counsel to GNMA and FHA and (j) all
creditors that have filed proofs of claim in these Chapter 11 Cases or that are
scheduled in the Debtors' schedules of assets and liabilities, or any amendment
or modification thereto. The Debtors shall also publish the Notice of
Confirmation in a national daily newspaper of their choosing. The Debtors are
hereby empowered to make conforming changes to the Notice of Confirmation prior
to its distribution for the purposes of conforming it to the Plan and this
Order.
75. Returned Mail. Notwithstanding anything to the
contrary herein, no notice or service of any kind will be required to be mailed
or made upon any person to whom the Debtors mailed a notice of the hearing on
the Disclosure Statement or the various packages containing, among other things,
notice of the date for the Confirmation Hearing, but received any
56
of such notices returned by the United States Postal Service marked
"undeliverable as addressed," "moved - left no forwarding address" or
"forwarding Order expired," or similar reason, unless the Debtors has been
informed in writing by such person of that person's new address.
76. Effective Date. The Plan will become effective on the
Effective Date as provided in the Plan.
77. Authorization to Close. This Court directs that
Bankruptcy Rule 3020(e) shall not apply to this Order and authorizes the plan
proponents to consummate the Plan immediately after entry of this Order, except
as otherwise provided in this Order.
78. Sufficiency of Notice of Confirmation. Mailing and
publication of the Notice of Confirmation in the time and manner as set forth in
this Order is adequate to bind all Holders of Claims and Interests, and all
other parties in interest, to this Order, the Plan and all other related
documents, and satisfies the requirements of Bankruptcy Rules 2002 and 3020(c).
No further notice is necessary.
Dated: Wilmington, Delaware
March ____, 2004
______________________________________
THE HONORABLE PETER J. WALSH
UNITED STATES BANKRUPTCY JUDGE
57
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ) Chapter 11
)
OAKWOOD HOMES CORPORATION, ) Case No. 02-13396 (PJW)
et al.,(4) )
Debtors. ) Jointly Administered
)
) Related to Docket Nos. 3503, 3504 & 3759
______________________________)
FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO, AND ORDER UNDER 11 U.S.C.
SECTIONS 1129(A) AND (B) CONFIRMING, SECOND AMENDED JOINT CONSOLIDATED PLAN OF
REORGANIZATION OF OAKWOOD HOMES CORPORATION AND ITS AFFILIATED
DEBTORS AND DEBTORS IN POSSESSION, DATED FEBRUARY 6, 2004
Dated: March ___, 2004
- ------------------------
(4) The Plan is being confirmed with regard to the following debtor
entities: Oakwood Homes Corporation, Dream Street Company, LLC, Oakwood
Shared Services, LLC, HBOS Manufacturing, LP, Oakwood MHD4, LLC,
Oakwood Acceptance Corporation, LLC, Oakwood Mobile Homes, Inc.,
Suburban Home Sales, Inc., FSI Financial Services, Inc., Home Service
Contract, Inc., Tri-State Insurance Agency, Inc., Golden West Leasing,
LLC, Crest Capital, LLC, Preferred Housing Services, LP., Oakwood
Financial Corporation, Oakwood Investment Corporation, and Oakwood
Servicing Holdings Co., LLC. As noted herein, New Dimension Homes, Inc.
("NDH") has elected to not seek entry of an order of confirmation of
the Plan (as defined hereto) at this time. Notwithstanding this, these
findings of fact and conclusions of law apply to all of the Debtors,
including NDH. NDH is not seeking entry of a confirmation order as it
has agreed to adjourn the objection of Tunnell (as defined herein) and
the effect of confirmation as to NDH until the next omnibus hearing in
these Chapter 11 Cases.
TABLE OF CONTENTS
Page
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RECITALS 1
FINDINGS OF FACTS AND CONCLUSIONS OF LAW 5
I. IT IS HEREBY FOUND AND DETERMINED THAT 5
1. CORE PROCEEDING (28 U.S.C. Section 157(B)(2)) 5
2. ADEQUACY OF THE DISCLOSURE STATEMENT AND SOLICITATION OF VOTES AS TO THE
SMALL BUSINESS DEBTORS. 5
3. TRANSMITTAL AND MAILING OF MATERIALS; NOTICE 6
4. PLAN COMPLIANCE WITH BANKRUPTCY CODE (11 U.S.C. Section 1129(A)(1)) 6
5. COMPLIANCE WITH THE BANKRUPTCY CODE (11 U.S.C. Section 1129(A)(2)) 8
6. PLAN PROPOSED IN GOOD FAITH (11 U.S.C. Section 1129(A)(3)) 10
7. PAYMENTS FOR SERVICES OR COSTS AND EXPENSES (11 U.S.C. Section 1129(A)(4)) 10
8. DIRECTORS, OFFICERS AND TRUSTEES (11 U.S.C. Section 1129(A)(5)) 10
9. NO RATE CHANGES (11 U.S.C. Section 1129(A)(6)) 11
10. BEST INTERESTS OF CREDITORS TEST (11 U.S.C. Section 1129(A)(7)) 11
11. ACCEPTANCE BY CERTAIN CLASSES (11 U.S.C. Section 1129(A)(8)) 11
12. TREATMENT OF ADMINISTRATIVE AND TAX CLAIMS (11 U.S.C. Section 1129(A)(9)) 12
13. ACCEPTANCE BY IMPAIRED CLASSES (11 U.S.C. Section 1129(A)(10)) 12
14. FEASIBILITY (11 U.S.C. Section 1129(A)(11)) 12
i
15. PAYMENT OF FEES (11 U.S.C. Section 1129(A)(12)) 12
16. CONTINUATION OF RETIREE BENEFITS (11 U.S.C. Section 1129 (A)(13)) 13
17. FAIR AND EQUITABLE; NO UNFAIR DISCRIMINATION (11 U.S.C. Section 1129(B)) 13
18. PRINCIPAL PURPOSE OF PLAN (11 U.S.C. Section 1129(D)) 13
19. TECHNICAL AMENDMENTS AND NON-MATERIAL MODIFICATIONS 14
20. OBJECTIONS 14
21. SUCCESSORS OF THE DEBTORS 23
22. EXEMPTION FROM SECURITIES LAWS (11 U.S.C. Section 1145(A)) 24
23. GOOD FAITH SOLICITATION; GOOD FAITH SALE OF
SECURITIES (11 U.S.C. Section 1125(E)) 24
24. ASSUMPTION AND ASSIGNMENT DETERMINATIONS 25
25. DISCHARGE, RELEASE, EXCULPATION, INDEMNIFICATION, INJUNCTION AND WAIVER 26
26. INTENT TO CHANNEL UNDISCHARGED AND UNRELEASED OFC AND OIC TAX AND FUTURE
CLAIMS. 27
27. NOTICE OF CHANNELING FUTURE CLAIMS. 28
28. ADEQUATE CAPITALIZATION OF THE REORGANIZED SALE DEBTORS 29
29. CAUSE FOR SUBSTANTIVE CONSOLIDATION 29
30. TRANSFERS OF PROPERTY 29
31. FACTUAL BASIS FOR APPROVAL OF RULE 9019(A) SETTLEMENTS 30
32. DISCHARGE 31
33. CONDITIONS TO CONFIRMATION 31
ii
34. JURISDICTION 31
II. NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 31
35. DISCLOSURE 31
36. CONFIRMATION 31
37. OBJECTIONS 31
38. PROVISIONS OF PLAN AND ORDER NONSEVERABLE AND MUTUALLY DEPENDENT 32
39. EXECUTORY CONTRACTS AND UNEXPIRED LEASES 32
40. THE LIQUIDATION TRUST 34
41. TRUST AS GRANTOR TRUST 36
42. THE STAND ALONE VOTING TRUST 37
43. DISCHARGE, INJUNCTION, RELEASE, AND EXCULPATION 37
44. RELEASE OF THE DEBTORS' CLAIMS 41
45. APPROVAL OF RULE 9019(A) SETTLEMENTS 41
46. APPROVAL OF INITIAL MEMBERS OF THE LIQUIDATION TRUST ADVISORY COMMITTEE,
THE LIQUIDATION TRUST, THE STAND ALONE VOTING TRUST, AND THE OFFICERS
AND DIRECTORS OF THE REORGANIZED SALE DEBTORS AND STAND ALONE DEBTORS 41
47. ENVIRONMENTAL LAWS 42
48. GENERAL AUTHORIZATIONS 42
49. RECAPITALIZATION AND RESTRUCTURING OF THE REORGANIZED SALE DEBTORS. 43
50. AUTHORIZATION OF THE SOLE OFFICER AND DIRECTOR OF THE REORGANIZED SALE
DEBTORS. 44
51. DISPUTED 45
52. CANCELLATION OF INTERESTS 47
iii
53. LIMITATION 47
54. Exemption From Stamp Taxes 47
55. TREATMENT OF NEW COMMON STOCK AND BENEFICIAL INTERESTS 48
56. CONFLICTS 49
57. RECOUPMENT 49
58. DISSOLUTION OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS 49
59. PRIVILEGES. 49
60. SALE OF ASSETS TO THE BUYER 49
61. APPROVAL OF PLAN-RELATED DOCUMENTS 50
62. REVESTING AND TRANSFERS OF PROPERTY 50
63. TERMINATION OF THE FINAL DIP AGREEMENT 52
64. APPROVAL OF THE EXIT FACILITY AGREEMENT 53
65. SUBSTANTIVE CONSOLIDATION OF CONSOLIDATING DEBTORS 53
66. PLAN AND CONFIRMATION ORDER BINDING 53
67. SUPREMACY OF CONFIRMATION ORDER 53
68. PLAN PROVISIONS TO BE GIVEN EFFECT 54
69. PLAN CLASSIFICATION CONTROLLING 54
70. THE RECORD 54
71. FINAL FEE APPLICATION FOR 55
72. FAILURE TO CONSUMMATE PLAN 55
73. RETENTION OF JURISDICTION 56
74. NOTICE OF ENTRY OF CONFIRMATION ORDER 56
75. RETURNED MAIL 56
iv
76. EFFECTIVE DATE. THE PLAN WILL BECOME EFFECTIVE ON THE EFFECTIVE DATE AS
PROVIDED IN THE PLAN. 57
77. AUTHORIZATION TO CLOSE 57
78. SUFFICIENCY OF NOTICE OF CONFIRMATION 57
v