UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Transcription

1 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MI PUEBLO SAN JOSE, INC., Debtor, CASE NO ASW CHAPTER NUMBER: 11 BALLOT FOR ACCEPTING OR REJECTING DEBTOR S FIRST AMENDED PLAN OF REORGANIZATION PURSUANT TO CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE CLASS 4 (GENERAL UNSECURED CLAIMS) THE VOTING DEADLINE TO ACCEPT OR REJECT THE PLAN IS MAY 5, 2014 at 4:00 P.M. (PREVAILING PACIFIC TIME). Mi Pueblo San Jose, Inc. ( Mi Pueblo or the Debtor ) is soliciting votes with respect to the Debtor s First Amended Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket No. 739] (as modified, amended, or supplemented from time to time, the Plan ) and the Disclosure Statement for the Debtor s First Amended Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket No. 740] (as modified, amended, or supplemented from time to time, the Disclosure Statement ). The Disclosure Statement has been tentatively approved by the United States Bankruptcy Court for the Northern District of California (the Bankruptcy Court ). Capitalized terms used in this Ballot and the attached instructions that are not otherwise defined have the meanings given to them in the Plan. Please review the Disclosure Statement and Plan before you vote. You may wish to seek legal, financial, and other advice concerning the Plan and your classification and treatment of your Claim(s) under the Plan. If the Court confirms the Plan, it will be binding on you whether or not you vote. Please review the attached Voting Information and Instructions carefully. If your Ballot is not actually received by Rust Consulting Omni Bankruptcy (the Voting Agent ) no later than May 5, 2014 at 4:00 p.m. (prevailing Pacific Time), your vote will not count as an acceptance or rejection of the Plan, unless the Debtor, in writing, grants an extension of such date with respect to a Ballot. The Bankruptcy Court s provisional approval of the Disclosure Statement does not indicate Bankruptcy Court approval of the Plan. The Plan can be confirmed by the Bankruptcy Court and thereby made binding on you and others if the Plan (i) is accepted by the holders of at least two-thirds in amount and more than one-half in number of the Claims in each impaired Class of Claims who vote on the Plan and (ii) otherwise satisfies the applicable requirements of section 1129(a) of the Bankruptcy Code. If the requisite acceptances are not obtained, the Bankruptcy Court nonetheless may confirm the Plan if it finds that the Plan (i) provides fair and equitable treatment to, and does not unfairly discriminate against, the Class or Classes rejecting the Plan and (ii) otherwise satisfies the requirements of section 1129(b) of the Bankruptcy Code. PLEASE BE ADVISED THAT ARTICLE VIII OF THE PLAN CONTAINS CERTAIN RELEASE, EXCULPATION, AND INJUNCTION PROVISIONS. YOU ARE ADVISED AND 1

2 ENCOURAGED TO CAREFULLY REVIEW AND CONSIDER THE PLAN, INCLUDING THE RELEASE, EXCULPATION, AND INJUNCTION PROVISIONS, AS YOUR RIGHTS ARE AFFECTED. The Plan provides that any holder of an Allowed Claim in any Voting Class consents to provide and does provide a discharge and release in accordance with the Third Party Release provision if such holder (a) submits its Ballot in compliance with the Solicitation Procedures Order and votes to accept the Plan or (b) abstains from voting on the Plan and does not submit its Ballot in compliance with the Solicitation Procedures Order and opt-out of the Third Party Release. Any holder of an Allowed Claim in any Voting Class that does not want to consent or be deemed to consent to the Third Party Release must submit its Ballot in compliance with the Solicitation Procedures Order and (a) vote to reject the Plan or (b) abstain from voting on the Plan and opt-out of the Third Party Release. The Third Party Release is a discharge and release of the claims, interests, obligations, debts, rights, suits, damages, remedies, causes of action, and liabilities whatsoever described in the Third Party Release against (a) the Reorganized Debtor, its estate, its property, and the Debtor s and the Reorganized Debtor s current and former Affiliates (as defined in section 101(2) of the Bankruptcy Code), subsidiaries, officers, directors, principals, partners, members, managers, employees, agents, financial and other advisors, attorneys, accountants, investment bankers, consultants, representatives, and other Professionals (as defined in the Plan); (b) the Existing Shareholders (as defined in the Plan); (c) the DIP Facility Lenders and the DIP Facility Administrative Agent (as defined in the Plan); (d) the Exit Facility Lenders and the Exit Facility Administrative Agent (as defined in the Plan); (e) Cha Cha Enterprises, LLC; and (f) with respect to each of the foregoing Entities in clauses (b) through (e), their respective current and former parents, Affiliates, subsidiaries, officers, directors, principals, employees, members, managers, agents, partners, professionals, financial and other advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, in their capacities as such. ACCEPTANCE OR REJECTION OF THE PLAN Item 1. Voting Amount of Class 4 (General Unsecured Claims). The undersigned certifies that, as of April 24, 2014, it is a holder of a General Unsecured Claim in Class 4 of the Plan in the following aggregate amount: $ [amount to be inserted by Voting Agent] Item 2. Vote to Accept or Reject the Plan. The undersigned, a holder of the Class 4 (General Unsecured Claim) set forth in Item 1 votes as follows (check only one box): ACCEPT the Plan. REJECT the Plan. A VOTE TO ACCEPT THE PLAN CONSTITUTES AN ACCEPTANCE AND CONSENT TO THE RELEASES, EXCULPATIONS, AND INJUNCTIONS SET FORTH IN ARTICLE VIII OF THE PLAN. A VOTE TO REJECT THE PLAN INCLUDES A REJECTION OF ANY THIRD PARTY RELEASES SET FORTH IN THE PLAN. IF YOU ABSTAIN (CHOOSE NOT TO VOTE), PLEASE SEE ITEM 3 BELOW. 2

3 Item 3. Releases. COMPLETE THIS ITEM 3 ONLY IF YOU DID NOT VOTE TO EITHER ACCEPT OR REJECT THE PLAN IN ITEM 2 ABOVE. The holder of the Class 4 Claims set forth in Item 1 elects to: Reject the Release Provisions in Article VIII.E of the Plan Item 4. Acknowledgments. By signing this Ballot, the undersigned acknowledges receipt of the Disclosure Statement and the other applicable solicitation materials and certifies that the undersigned is the claimant or has the power and authority to vote to accept or reject the Plan on behalf of the claimant. The undersigned understands that, if this Ballot is otherwise validly executed but does not indicate either acceptance or rejection of the Plan, this Ballot will be counted as having been cast to accept the Plan. Name Social Security or Federal Tax I.D. No. Signature If by Authorized Agent, Name and Title Street Address City, State, ZIP Code Telephone Number Date Completed 3

4 VOTING INFORMATION AND INSTRUCTIONS FOR COMPLETING THE BALLOT 1. This Ballot is submitted to you to solicit your vote to accept or reject the Plan. You should read the Plan and Disclosure Statement carefully before completing the Ballot. 2. Review the information contained in Item 1 and make sure that it is correct. 3. Vote to accept or reject the Plan in Item You must vote the full amount of your Claim represented by this Ballot to accept or reject the Plan. You may not split your vote. If you hold any portion of a single Claim, you and all other holders of any portion of such Claim will be (a) treated as a single creditor for voting purposes and (b) required to vote every portion of such Claim collectively to either accept or reject the Plan. In the event a group of Ballots received from the various holders of multiple portions of a single Claim partially accepts and partially rejects the Plan, such Ballots shall be treated as having been cast to accept the Plan. 5. Any executed Ballot received by the Voting Agent that either (a) does not indicate an acceptance or rejection of the Plan or (b) indicates both an acceptance and rejection of the Plan, will be deemed a vote to accept the Plan. 6. Complete Item 3 only if you did not vote to either accept or reject the Plan in Item 2. Pursuant to the Plan, if you return a Ballot and vote to accept the Plan, you are automatically deemed to have accepted the release provisions in Article VIII.E of the Plan (the Third Party Release ). Pursuant to the Plan, if you return a Ballot and vote to reject the Plan, you are automatically deemed to have rejected the Third Party Release. If you do not cast a vote, you are also deemed to have accepted the Third Party Release; however, in this instance only, you may check the box in Item 3 to reject the Third Party Release. The Confirmation Hearing Notice you received with the Ballot includes the Third Party Release contained in Article VIII.E of the Plan. 7. Review the certifications and acknowledgements in Item Sign the Ballot. Your Ballot must be fully executed to be counted. If you are completing this Ballot on behalf of another Entity, indicate your relationship with such Entity and the capacity in which you are signing and submit satisfactory evidence of your authority to do so (i.e., a power of attorney). 9. Return the signed Ballot by (i) first-class mail, overnight courier, or hand delivery, in the return envelope provided with the Ballot, (ii) facsimile, or (iii) electronic mail, to: Rust Consulting Omni Bankruptcy Attn: Mi Pueblo Ballot Processing 5955 Desoto Avenue, Suite 100 Woodland Hills, California Telephone: (818) Facsimile: (818) MiPuebloballoting@omnimgt.com Ballots should not be sent to the Debtor or the Bankruptcy Court. 10. Ballots must be received by the Voting Agent by 4:00 p.m. (prevailing Pacific Time) on May 5, 2014 (the Voting Deadline ). If a Ballot is received after the Voting Deadline, it will not be counted. An envelope addressed to the Voting Agent is enclosed for your convenience. 11. If you hold Claims in more than one Voting Class under the Plan, or if you hold multiple Claims within the same Voting Class under the Plan, you may receive a separate Ballot for each such Claim, coded by Class number and description, and a set of solicitation materials. Each Ballot you receive is for voting only those Claims described on the Ballot. Please complete and return each 4

5 Ballot you receive. 12. Your Claim has been temporarily allowed solely for purposes of voting to accept or reject the Plan in accordance with certain tabulation rules approved by the Bankruptcy Court (the Tabulation Rules ). The Tabulation Rules are set forth in the Solicitation Procedures Order, which is enclosed with the solicitation materials you received along with this Ballot. The temporary allowance of your Claim for voting purposes does not constitute an allowance of your Claim for purposes of distribution under the Plan and is without prejudice to the rights of the Debtor in any other context (including the right of the Debtor to contest the amount or validity of any Claim for purposes of allowance under the Plan). 13. Do not return any securities, instruments, or other documentation with your Ballot. 14. The Ballot does not constitute and shall not be deemed a proof of Claim or Interest or an assertion of a Claim or Interest. 15. If you have received a damaged Ballot or have lost your Ballot, or if you have any questions concerning this Ballot or the voting procedures, please contact the Voting Agent, Rust Consulting Omni Bankruptcy, at (818)