KEITH LUNDIN, Bankruptcy Judge
On August 12, 2003, Pen Holdings, Inc., et al. (the "Debtors"), the Official Committee of the Unsecured Creditors of Pen Coal Corporation (the "Creditors' Committee"), and Ableco Finance LLC, Wells Fargo Foothill, Inc. and Regiment Capital II, L.P. (the "Lender Group," referred to collectively with the Creditors' Committee and the Debtors, the "Plan Proponents") filed the Disclosure Statement to Accompany: Joint Plan of Reorganization filed by the Debtors, the Official Committee of Unsecured Creditors for Pen Coal Corp. and the Lender Group as Co — Proponents (the "Disclosure Statement") and the Joint Plan of Reorganization filed by the Debtors, the Official Committee of Unsecured Creditors for Pen Coal Corp. and the Lender Group as Co — Proponents (the "Plan"). The hearing on confirmation of the Plan and adequacy of the Disclosure Statement was scheduled for September 30, 2003. The Plan was amended on September 30, 2003. The amendment is not material and references to the Plan in this Order shall refer to the Plan as amended on September 30, 2003.
Having conducted the Confirmation Hearing, reviewed the evidence, any objections to confirmation, arguments of counsel, and otherwise being fully advised in premises, THE COURT HEREBY FINDS AS FOLLOWS:
1. The findings of fact and conclusions of law set forth herein constitute the Court's findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014.
2. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such.
3. All capitalized terms contained herein, not otherwise defined herein, shall have the meaning defined in the Plan.
Jurisdiction and Venue
4. This Court has jurisdiction to confirm the Plan pursuant to 28 U.S.C, § 1334.
5. Confirmation of the Plan is a core proceeding pursuant to 28 U.S.C. § 157(b) and this Court has jurisdiction to enter a final order.
6. Venue is proper pursuant to 28 U.S.C. § 1408 and 1409.
7. The Debtors are proper debtors under Section 109 of the Bankruptcy Code, and the Plan Proponents are proper proponents of the Plan under Section 1121 of the Bankruptcy Code.
Notice
8. All parties required to receive notice of the Plan and the Confirmation hearing have received due, proper, timely, and adequate notice in accordance with the Disclosure Statement Order, the Bankruptcy Code, the Bankruptcy Rules and the local bankruptcy rules, and have had an opportunity to appear and be heard with respect thereto. No other or further notice need be given.
Solicitation
9. All persons required to receive notice of the Confirmation Hearing have received due, proper, timely, and adequate notice in accordance with the Disclosure Statement Order and have had an opportunity to appear and be heard with respect thereto.
10. The Plan Proponents have solicited and tabulated votes on the Plan in good faith and in a manner consistent with the Bankruptcy Code, the Bankruptcy Rules and the local bankruptcy rules,
Plan Modifications
11. The Plan Proponents have complied with Section 1125 of the Bankruptcy Code with respect to the Plan. As set forth below, the Plan meets the requirements of Section 1122 and 1123 of the Bankruptcy Code. Modifications to the Plan do not adversely change the treatment of the claim of any creditors or the interest of any equity holder who has not accepted the modification in writing.
The Plan Satisfies the Requirements of the Bankruptcy Code
12. The Plan complies with all applicable provisions of the Bankruptcy Code.
13. The Plan is dated and identifies each of the Plan Proponents.
14. The Plan designates and classifies claims and equity interests. The classification of claims and equity interests under the Plan complies with Section 1122 of the Bankruptcy Code. Each claim and equity interest placed in a particular class pursuant to the Plan is substantially similar to the other claims or equity interests in such class. A reasonable basis exists for the classification of claims and equity interests in the Plan.
15. The Plan specifies each class of claims or equity interests that is not impaired under the Plan.
16. The Plan specifies the treatment of each class of claims or equity interests that is impaired under the Plan.
17. The Plan provides for the same treatment for each claim or equity interest of a particular class, unless the holder of a particular claim or equity interest has agreed to less favorable treatment of such claim or equity interest.
18. The Plan provides adequate means for its implementation.
19. The Plan does not provide for the issuance of nonvoting equity securities.
20. The Plan contains only provisions that are consistent with the interests of creditors and equity interest holders and with public policy with respect to the manner of selection of officers and directors under the Plan and any successor to such officers and directors.
21. Amounts necessary to cure defaults required to be cured under the Plan shall be determined in accordance with the underlying agreements and applicable nonbankruptcy law,
22. The Plan Proponents have complied with all applicable provisions of the Bankruptcy Code.
23. The Plan has been proposed in good faith and not by any means forbidden by law. The Plan Proponents and their respective officers, directors, representatives, and advisors have acted in good faith in the negotiation and formulation of the Plan.
24. The Plan is the product of arm's length negotiation among the Plan Proponents.
25. Any payment made or to be made by the Debtors or by a person issuing securities or acquiring property under the Plan, for services or for costs and expenses in or in connection with the Plan and incident to the Debtors' chapter 11 cases, has been approved by, or is subject to the approval of, the Court as reasonable.
26. The identities, qualifications, and affiliations of the individuals proposed to serve as directors or officers of the New Elk Horn as of the Effective Date have been fully disclosed, and the appointment to, or continuance in, such offices is consistent with the interests of creditors and equity interest holders and with public policy.
27. The identity of any insider proposed to be employed or retained by New Elk Horn as of the Effective Date and the nature of such insider's compensation have been fully disclosed.
28. No rate changes are provided for in the Plan that would require governmental regulatory commission approval.
29. With respect to each impaired class of claims or equity interests, each holder of a claim or equity interest has accepted the Plan or will receive or retain under the Plan on account of such claim or equity interest property of a value, as of the Effective Date, that is not less than the amount that such holder would so receive or retain if the Debtor were liquidated under chapter 7 of the Bankruptcy Code on the Effective Date.
30. Except to the extent that the holder of a particular claim has agreed to a different treatment of such claim, the Plan provides that, with respect to a claim of a kind specified in Section 507(a)(1) of the Bankruptcy Code, on the later of the Effective Date and the date on which such claim is allowed, the holder of such claim will receive on account of such claim cash equal to the allowed amount of such claim, except that such claims representing obligations incurred by the Debtors in the ordinary course of business or assumed by the Debtors pursuant to the Plan shall be paid in full or performed by New Elk Horn when due in the ordinary course of business in accordance with the agreements governing such obligations.
31. Except to the extent that the holder of a particular claim has agreed to a different treatment of such claim, the Plan provides that with respect to a claim of a kind specified in Section 507(a)(8) of the Bankruptcy Code, the holder of such claim will receive on account of such claim deferred cash payments, over a period not exceeding six years after the date of assessment of such claim, of a value, as of the Effective Date, equal to the allowed amount of such claim.
32. Class 1 is unimpaired by the Plan and is conclusively presumed to have accepted the Plan. Holders of equity interests in class 6 will not receive or retain any property under the Plan on account of such equity interests. Accordingly, class 6 is deemed to have rejected the Plan.
33. Classes 2, 3, 4, 5A and 5B are impaired by the Plan. The Plan has been accepted in writing by the holders of more than two-thirds in amount and one-half in number of allowed class 2 claims, allowed class 3 claims, allowed class 4 claims, allowed class 5A claims and allowed class 5B claims, respectively. Voting on the Plan was determined without including any acceptance of the Plan by any insider. Classes 2, 3, 4, 5A and 5B have accepted the Plan. However, even if all but one of the aforementioned classes has not accepted the Plan, the Plan is confirmable as set forth below.
34. Confirmation of the Plan is not likely to be followed by the liquidation or need for further financial reorganization of the Debtors or New Elk Horn.
35. The Plan provides for the payment, on the Effective Date, of all fees payable under section 1930 of title 28 of the United States Code.
36. All applicable requirements of Section 1129(a) of the Bankruptcy Code, other than the requirement in Section 1129(a)(8) that all impaired classes accept or be unimpaired under the Plan, have been met. The Plan Proponents have requested that the Court confirm the Plan under Section 1129(b) notwithstanding such requirement,
37. All applicable requirements of Section 1129(b) of the Bankruptcy Code have been met.
38. All conditions precedent to confirmation set forth in Section XI of the Plan have been satisfied.
39. The principal purpose of the Plan is neither the avoidance of taxes nor the avoidance of section 5 of the Securities Act of 1933.
For all of the foregoing reasons, and after due deliberation, the Court FINDS, ADJUDGES, AND DECREES THAT:
Approval of Disclosure Statement
1. The Disclosure Statement submitted by the Plan Proponents is hereby approved and the solicitation of acceptances is hereby determined to have been appropriate in all respects and fully consistent with the requirement of Section 1125 of the Bankruptcy Code. Objections to the Disclosure Statement were due on or before September 19, 2003. No objections have been received by the Court with respect to the Disclosure Statement.
Confirmation of the Plan
2. The Plan is confirmed. A copy of the confirmed Plan is attached as Exhibit A to this Order.
3. All objections to confirmation of the Plan that have not been withdrawn prior to the entry of this Order or are not cured by the relief granted herein are overruled in all respects for the reasons set forth by the Court in the record of the Confirmation Hearing. All withdrawn objections, if any, are deemed withdrawn with prejudice.
4. The Plan is the product of good faith, arms-length negotiations among the Plan Proponents, and is approved in all respects.
Executory Contracts and Unexpired Leases
5. The rejection and assumption of all executory contracts and unexpired leases pursuant to Article 10 of the Plan is approved.
Capital Structure
6. New Elk Horn is hereby authorized to incur obligations under the Senior Debt Loan Documents and the New Indenture established for the payment of Note A and Note B, The Senior Debt Loan Documents and the New Indenture have been negotiated in good faith and at arm's length and are consistent with market terms. All of the terms and conditions of the Senior Debt Loan Documents and the New Indenture are hereby approved. New Elk Horn is hereby authorized to incur, and shall take all acts necessary or appropriate to perform all of its obligations thereunder.
7. The terms and conditions of the Senior Debt Loan Documents and the New Indenture shall be in form and substance satisfactory to each of the Plan Proponents and such documentation is hereby approved and ratified.
8. On the Effective Date, New Elk Horn is hereby authorized to enter into the Senior Debt Loan Documents and to grant liens and security interests to the Lender Group in substantially all of its assets in accordance with the terms thereof, and such documents, liens, and security interests are hereby approved and perfected as of the Effective Date. The Lender Group may, but is not required to, file a copy of this Order in the appropriate filing offices as evidence of the perfection of their liens and security interests.
9. The Senior Debt Loan Documents shall be binding and enforceable against New Elk Horn on and after the Effective Date as if executed and delivered by New Elk Horn notwithstanding any provision of the Plan or this Order to the contrary.
Discharge and Injunctions
10. On the Effective Date:
(a) All provisions of the Plan bind the Debtors, any entity issuing securities under the Plan, any entity acquiring property under the Plan, and any creditor or equity interest holder of the Debtors, whether or not the claim or equity interest of such creditor or equity interest holder is impaired under the Plan and whether or not such creditor or equity interest holder has accepted the Plan;
(b) All property of the Debtors' estates and all property dealt with by the Plan is vested in New Elk Horn, free and clear of all liens, claims, charges, encumbrances, and interests of creditor and equity interest holders of the Debtors, except those held by the Lender Group that are specifically addressed in the Plan, and as otherwise provided in the Plan;
(c) The Debtors are hereby discharged from any and all debts and claims that arose before the date and time of entry of this Order;
(d) Nothing in this Order shall affect any litigation against the Debtors' directors or officers commenced by the Lender Group.
11. On the Effective Date, except as otherwise provided in the Plan, all persons and entities are permanently enjoined from enforcing or attempting to enforce any contractual, legal, or subordination rights satisfied, compromised, or settled pursuant to the Plan.
12. The limited release and exculpation provisions contained in the Plan and this Order are fair and equitable, are given for valuable consideration, and are in the best interest of the Debtors and their estates, and such provisions shall be effective and binding on all persons and entities.
Implementation
13. The Debtors are hereby authorized and directed to take all actions necessary or appropriate to implement their business plan, without further application to, or order of, this Court.
14. The Debtors are hereby authorized and directed to take all actions necessary or appropriate to consummate the transactions contemplated by the Plan.
15. On the Effective Date, except to the extent provided otherwise in the Plan, all notes, instruments, certificates, and other documents evidencing claims and all equity interests shall be cancelled and the obligations of the Debtors thereunder shall be discharged.
16. The issuance by New Elk Horn of New Elk Horn Membership Interests is hereby authorized without the need for any further corporate action by any of the Debtors or New Elk Horn.
17. The Debtors are hereby authorized and empowered to issue, execute, deliver, file, or record any document or instrument, including, without limitation, any agreements, bylaws, or charters, whether or not specifically referred to in the Plan or any exhibit or supplement to the Plan, and to take any action necessary or appropriate to implement, effectuate, and consummate the Plan in accordance with its terms, all without further application to, or order of, this Court.
18. The Objection of Petroleum Products, Inc. ("PPI") to Confirmation of Joint Plan of Reorganization Combined With Request for Relief has been resolved and is hereby withdrawn. This withdrawal is by virtue of the Court's approval, without creditor objection and after notice and opportunity for hearing, of a settlement of the parties by entry of the Agreed Order Approving Settlement and Stipulation Agreement Between Plaintiff, Debtors and Lender Defendants ("Agreed Order") in connection with the related adversary proceeding styled Petroleum Products, Inc., Plaintiff v. Abelco Finance, LLC, et. al., Defendants, A.P. No. 302-0888A. Under the terms of the Agreed Order, the Plan Proponents hereby amend the Plan, as a modification that does not adversely change the treatment of any creditor or equity security holder under the provisions of Bankruptcy Rule 3019 and Section 1127(a) of the Bankruptcy Code, to remove the designated plan treatment of PPI The treatment of PPI's claim under the Plan shall occur as provided in the Agreed Order. The parties further agree that the terms of the Agreed Order provide a global release of claims including a release of any and all Avoidance Actions that may exist against PPI. The Court hereby approves the stipulation and agreement of the parties under the terms of the Agreed Order. The Plan Proponents and PPI are authorized to perform under the terms of the Agreed Order.
19. On and after the Effective Date, the Debtors shall issue all securities, notes, instruments, certificates, and other documents required under the Plan and this Order. On the Effective Date, the Debtors are authorized and empowered to execute, deliver, file, and record any and all documents, instruments, and agreements, whether or not specifically referred to in the Plan or any exhibit or supplement to the Plan, and to take any action necessary or appropriate to obtain, implement, effectuate, and consummate the Plan and the transactions contemplated by the Plan and this Order, all without further application to, or order of, this Court. New Elk Horn shall execute and deliver such other agreements, documents, and instruments, as are required to be executed pursuant to the Plan and this Order, or are necessary or appropriate to implement, effectuate, and consummate the Plan in accordance with its terms, which shall be satisfactory in all material respects to the Plan Proponents.
20. To the maximum extent provided by operation of Section 1145 of the Bankruptcy Code, the distribution of the New Elk Horn Membership Interests and indebtedness under the New Indenture shall be exempt from registration under the Securities Act of 1933, as amended (the "Securities Act") or any other state or federal securities law, and any state or local law requiring registration for offer or sale of a security or registration or licensing of an issuer of, or broker or dealer in, a security. All such securities so issued shall be freely transferable by the initial recipients thereof (a) except for any restrictions set forth in Section 1145(b) of the Bankruptcy Code and (b) subject to any restrictions contained in the terms of such securities themselves, in the Plan, Disclosure Statement, or in any other documents relating to the Plan or executed in connection with the effectiveness thereof.
21. To the extent that the distribution of New Elk Horn Membership Interests and indebtedness under the New Indenture is not exempt under Section 1145(a) of the Bankruptcy Code, their distribution shall be exempt from the registration requirements of the Securities Act afforded by Section 4(2) thereof, regulations promulgated thereunder, and any comparable state securities or "blue sky" exemptions. All such securities so issued shall be freely transferable by the initial recipients thereof (a) except for any restrictions set forth in the Securities Act and (b) subject to any restrictions contained in the terms of such securities themselves, in the Plan, Disclosure Statement, or in any other documents relating to the Plan or executed in connection with the effectiveness thereof.
22. Pursuant to Section 1146(c) of the Bankruptcy Code, the issuance, transfer, or exchange of any security under the Plan, or the making or delivery of an instrument of transfer under the Plan, shall not be taxed under any law imposing stamp or similar tax.
23. Each federal, state, and local governmental agency or department is hereby authorized to accept for filing any and all documents and instruments necessary and appropriate to consummate the Plan and the transactions contemplated thereby.
24. On the Effective Date, the officers and directors of New Elk Horn are hereby deemed elected, and those officers and directors of the Debtors not continuing in office are hereby deemed removed therefrom.
Professional Compensation and Reimbursement
25. Following the occurrence of the Effective Date, New Elk Horn shall file with the Court a notice of occurrence of the Effective Date, identifying the date on which the Effective Date occurred.
26. On or before sixty (60) days after the Effective Date, each professional and other entity requesting compensation or reimbursement of expenses pursuant to Sections 327, 328, 330, 503(b) and 1103 of the Bankruptcy Code for services rendered up to the date and time of entry of this Order (including compensation requested pursuant to Sections 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code by any professional or other entity for making substantial contributions in the Debtors' chapter 11 case) shall file an application for final allowance of compensation and reimbursement of expenses with the Court (a "Final Fee Application"), together with proof of service thereof, shall comply with LBR 2016-1 and 9013-1 and shall serve such Final Fee Application on the Debtors, the Assistant United States Trustee for the Middle District of Tennessee, and each of the Plan Proponents' counsel. Final Fee Applications shall show and reflect the application of any retainers received in connection with the Debtors' chapter 11 cases.
27. Objections, if any, to any Final Fee Applications shall be filed with the Court, together with proof of service thereof, and served upon the applicant and each of the parties identified in the preceding paragraph, consistent with LBR 9013-1.
28. Unless an objection to the Final Fee Application is timely filed and served, the Final Fee Application may be granted without further notice or hearing.
29. Administrative expenses incurred by the Debtors from and after the date and time of entry of this Order, including without limitation, claims for professional fees and expenses, shall not be subject to applications and may be paid by the Debtors in the ordinary course of business and without further order or approval of the Court, and the Debtors may engage professionals in the ordinary course of their business or to assist them in claims reconciliation without further order of the Court. Any unresolved dispute as to professional compensation and reimbursement of expenses shall be submitted to, and determined by, the Court.
Retention of Jurisdiction
30. The Court shall retain jurisdiction in accordance with Article XVI of the Plan and Section 1142 of the Bankruptcy Code.
Notice of Entry
31. On or before the date that is ten (10) days after the entry of this Order, the Debtors shall serve by hand delivery, first class, mail, or reputable overnight delivery service, a notice of this entry of this Order, substantially in the form annexed hereto as Exhibit B (the "Confirmation Notice") to each of the following at their respective addresses last known to the Debtors: (i) the Office of the Assistant United States Trustee of the Middle District of Tennessee, (ii) attorneys for the Lender Group, (iii) attorneys for the Creditors' Committee, (iv) the indenture trustee, (v) all parties having filed requests for notices in the Debtors' Chapter 11 cases pursuant to Bankruptcy Rule 2002, (vi) the Securities and Exchange Commission, (vii) the Internal Revenue Service, and (viii) all known record holders of claims against, and equity interests in, the Debtors. Such service, publication and posting shall constitute good and sufficient notice pursuant to Bankruptcy Rule 2002(f)(7) and 2002(i)-(1) of the confirmation of the Plan, and the entry of this Order, and pursuant to Bankruptcy Rule 2002(a)(6), of any hearing scheduled by the Court to consider Final Fee Applications, and no other or further notice need be given.
Efficacy of the Plan
32. The failure to specifically include any particular provision of the Plan in this Order shall not diminish or impair the efficacy of such provision, it being understood the intent of this Court that the Plan be confirmed and approved in its entirety.
33. Neither the Plan nor this Order shall be amended without the consent of the Plan Proponents. If in conflict, the provisions of this order shall prevail over the provisions of the attached plan.
34. This Amended and Restated Confirmation Order shall be deemed effective as of October 1, 2003.