||Equitable Distribution of Voting Power |
On or before the Effective Date, pursuant to and only to the extent
required by section 1123(a)(6) of the Bankruptcy Code, the organizational documents for the Debtor will be amended as necessary to satisfy the provisions of the Bankruptcy Code and will include, among other things, pursuant to section 1123(a)(6) of
the Bankruptcy Code, (i) a provision prohibiting the issuance of non-voting equity securities and (ii) a provision setting forth an appropriate distribution of voting power among classes of equity
securities possessing voting power.
||Additional Requirements for Non-Consensual Confirmation |
event that any impaired Class of Claims or Interests does not accept or is deemed to reject the Plan, the Bankruptcy Court may still confirm the Plan at the request of the Debtor if, as to each impaired Class of Claims or Interests that
has not accepted the Plan, the Plan does not discriminate unfairly and is fair and equitable with respect to such Classes of Claims or Interests, pursuant to section 1129(b) of the Bankruptcy Code. Both of these requirements
are in addition to other requirements established by case law interpreting the statutory requirements.
||Unfair Discrimination Test |
The unfair discrimination test applies to Classes of Claims or
Interests that are of equal priority and are receiving different treatment under the Plan. A chapter 11 plan does not discriminate unfairly, within the meaning of the Bankruptcy Code, if the legal rights of a dissenting Class are treated in a
manner consistent with the treatment of other Classes whose legal rights are substantially similar to those of the dissenting Class and if no Class of Claims or Interests receives more than it legally is entitled to receive for its Claims
or Interests. This test does not require that the treatment be the same or equivalent, but that such treatment is fair.
The Debtor believes
the Plan satisfies the unfair discrimination test. Claims of equal priority are receiving comparable treatment and such treatment is fair under the circumstances.
||Fair and Equitable Test |
The fair and equitable test applies to classes of different priority and
status (e.g., secured versus unsecured) and includes the general requirement that no class of claims receive more than 100% of the allowed amount of the claims in such class. As to dissenting classes, the test sets different standards
depending on the type of claims in such class. The Debtor believes that the Plan satisfies the fair and equitable test as further explained below.
||Other Secured Creditors |
The Bankruptcy Code provides that each holder of an impaired secured claim either
(i) retains its liens on the property to the extent of the allowed amount of its secured claim and receives deferred cash payments having a value, as of the effective date, of at least the allowed amount of such claim, (ii) has the right
to credit bid the amount of its claim if its property is sold and retains its liens on the proceeds of the sale or (iii) receives the indubitable equivalent of its allowed secured claim.