Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - MAGNA ENTERTAINMENT CORP | mm08-1110_8k.htm |
| EX-2.1 - EX.2.1 - JOINT PLAN - MAGNA ENTERTAINMENT CORP | mm08-1110_8ke021.htm |
| EX-99.2 - EX.99.2 - MAGNA ENTERTAINMENT CORP | mm08-1110_8ke992.htm |
EXHIBIT
99.1
IN
THE UNITED STATES BANKRUPTCY COURT
DISTRICT
OF DELAWARE
| In re | Chapter 11 | |
| MAGNA ENTERTAINMENT CORP., et al., | Case No. 09-10720 (MFW) | |
| Debtors. | Jointly Administered | |
| Re: Docket No. 2458 | ||
FINDINGS
OF FACT, CONCLUSIONS OF LAW, AND ORDER
CONFIRMING
SECOND MODIFIED THIRD AMENDED JOINT
PLAN
OF AFFILIATED DEBTORS, THE OFFICIAL COMMITTEE
OF
UNSECURED CREDITORS, MI DEVELOPMENTS INC., AND MI
DEVELOPMENTS
US FINANCING INC. PURSUANT TO CHAPTER 11
OF THE UNITED STATES
BANKRUPTCY CODE
Magna
Entertainment Corp. (“Magna Entertainment”)
and its affiliated debtors in the above-referenced chapter 11 cases, as debtors
and debtors in possession (collectively, the “Debtors”), the
statutory committee of unsecured creditors in these chapter 11 cases (the “Creditors’
Committee”), MI Developments Inc. (“MID”) and MI
Developments US Financing Inc. (“MID Financing”, and
collectively with the Debtors, Creditors’ Committee and MID, the “Plan Proponents”)
having jointly proposed and filed with the United States Bankruptcy Court for
the District of Delaware (the “Court”) (i) that
certain Second Modified Third Amended Joint Plan of Affiliated Debtors, The
Official Committee of Unsecured Creditors, MI Developments Inc., and MI
Developments US Financing Inc. Pursuant to Chapter 11 of the United States
Bankruptcy Code, dated April 28, 2010, as may be modified (the “Plan”)1
[Docket No. 2458] (a copy of which is annexed hereto as Exhibit “A”), (ii) the
Plan Supplement, dated April 21, 2010
_________________________
1 Capitalized terms used but not
otherwise defined shall have the meanings ascribed to them in the
Plan.
[Docket
No. 2401] and (iii) that certain Disclosure Statement for the Third Amended
Joint Plan of Affiliated Debtors, The Official Committee of Unsecured Creditors,
MI Developments Inc., and MI Developments US Financing Inc. Pursuant to Chapter
11 of the United States Bankruptcy Code, dated March 24, 2010 (the “Disclosure
Statement”) [Docket No. 2158]; and the appropriate ballots for voting on
the Plan, in the forms attached as Exhibit “B” to that certain Order (I)
Approving the Disclosure Statement, (II) Approving Notice of the Disclosure
Statement Hearing, (III) Fixing a Record Date, (IV) Approving Solicitation
Packages and Procedures for Distribution Thereof, (V) Approving Forms of Ballots
and Procedures for Tabulation of Votes on Plan of Reorganization and (VI)
Scheduling a Hearing and Approving Notice and Objection Procedures in Respect of
Confirmation of Plan of Reorganization, dated March 26, 2010 (the “Disclosure Statement
Order”) [Docket No. 2166], having been duly transmitted to holders of
Claims in compliance with the procedures (the “Solicitation
Procedures”) as set forth in the (i) Affidavit of Service of Kurtzman
Carson Consultants LLC (“KCC”) (and any
supplements thereto), dated April 8, 2010 (the “KCC Affidavit”)
[Docket No. 2267], and sworn to by Jonathan D. Carameros of KCC, and (ii)
Certification of Evan J. Gershbein With Respect to the Tabulation of Votes on
the Third Amended Joint Plan of Affiliated Debtors, The Official Committee of
Unsecured Creditors, MI Developments Inc., and MI Developments US Financing Inc.
Pursuant to Chapter 11 of the United States Bankruptcy Code, dated April 19,
2010 [Docket No. 2373], (the “Gershbein
Certification”, and together with the KCC Affidavit, the “Voting
Certification”); and the Court having approved the Solicitation
Procedures and the Disclosure Statement as containing “adequate information” (as
defined in section 1125 of the Bankruptcy Code) pursuant to the Disclosure
Statement Order; and the following documents having been filed in support of
confirmation of the Plan: (i) that certain
2
Affidavit
of Gregory F. Rayburn in Support of Confirmation of the Third Amended Joint Plan
of Affiliated Debtors, The Official Committee of Unsecured Creditors, MI
Developments Inc., and MI Developments US Financing Inc. Pursuant to Chapter 11
of the United States Bankruptcy Code, dated April 19, 2010 (the “Rayburn Affidavit”)
[Docket No. 2364], (ii) that certain Affidavit of Nicholas P. Leone in Support
of Confirmation of the Third Amended Joint Plan of Affiliated Debtors, The
Official Committee of Unsecured Creditors, MI Developments Inc., and MI
Developments US Financing Inc. Pursuant to Chapter 11 of the United States
Bankruptcy Code, dated April 19, 2010 (the “Leone Affidavit”)
[Docket No. 2367], (iii) that certain Affidavit of Marc D. Puntus in Support of
Confirmation of the Third Amended Joint Plan of Affiliated Debtors, The Official
Committee of Unsecured Creditors, MI Developments Inc., and MI Developments US
Financing Inc. Pursuant to Chapter 11 of the United States Bankruptcy Code,
dated April 19, 2010 (the “Puntus Affidavit”)
[Docket No. 2365], (iv) that certain Affidavit of Timothy P. Harkness in Support
of Confirmation of the Third Amended Joint Plan of Affiliated Debtors, The
Official Committee of Unsecured Creditors, MI Developments Inc., and MI
Developments US Financing Inc. Pursuant to Chapter 11 of the United States
Bankruptcy Code, dated April 19, 2010 (the “Harkness Affidavit”)
[Docket No. 2366], and (v) that certain Affidavit of Rocco Liscio in Support of
Confirmation of the Third Amended Joint Plan of Affiliated Debtors, The Official
Committee of Unsecured Creditors, MI Developments Inc., and MI Developments US
Financing Inc. Pursuant to Chapter 11 of the United States Bankruptcy Code,
dated April 19, 2010 (the “Liscio Affidavit”,
and together with the Rayburn Affidavit, Leone Affidavit, Puntus Affidavit,
Harkness Affidavit and Voting Certification, the “Supporting
Affidavits”) [Docket No. 2368]; and the following responses or objections
to confirmation of Plan having been filed: (i) Objection of the Michigan
Department of Treasury (“Michigan”),
3
dated
April 5, 2010 [Docket No. 2221]; (ii) Objection of the California Horse Racing
Board, dated April 13, 2010 [Docket No. 2291]; (iii) Objection of Texas
Comptroller of Public Accounts, dated April 14, 2010 [Docket No. 2297]; (iv)
Objection of Carol M. Curland (“Curland”), dated
April 14, 2010 [Docket No. 2298]; (v) Objection of Riverside Claims, LLC (“Riverside”), dated
April 15, 2010 [Docket No. 2306]; (vi) Objection of Certain Equity Holders,
dated April 15, 2010 [Docket No. 2310]; (vii) Objection of the Texas Racing
Commission, dated April 15, 2010 [Docket No. 2313]; (viii) Objection of Los
Angeles County Tax Collector (“L.A. County Tax”),
dated April 16, 2010 [Docket No. 2319]; (ix) Objection of the United States
Trustee, dated April 16, 2010 [Docket No. 2320]; (x) Objection of the Internal
Revenue Service (“IRS”), dated April
16, 2010 [Docket No. 2322]; (xi) Precautionary Objection of the Mayor & City
Council of Baltimore (“Baltimore”), dated
April 16, 2010 [Docket No. 2325]; (xii) Objection of the Florida Department of
Business & Professional Regulation, Division of Pari-Mutuel Wagering (“Florida Dept.”),
dated April 16, 2010 [Docket No. 2326]; (xiii) Objection of Santa Anita
Associates, LLC and its Managing Member Santa Anita Associates Holding Co. LLC,
dated April 16, 2010 [Docket No. 2329]; (xiv) Objection of FC Gulfstream Park,
Inc. (“FC
Gulfstream”), dated April 16, 2010 [Docket No. 2331]; (xv) Objection of
Maryland Race Track Employees Pension Fund, dated April 16, 2010 (“Maryland Pension
Fund”) [Docket No. 2333]; (xvi) Limited Objection of Grand Prairie Sports
Facilities Development Corporation, Inc. (“Grand Prairie”),
dated April 16, 2010 [Docket No. 2334]; (xvii) Objection of Rocco Belmonte
(“Belmonte”),
dated April 16, 2010 [Docket No. 2335]; (xviii) Objection of Greenlight Capital
Offshore Partners et al., dated April 16, 2010 (“Greenlight”) [Docket
No. 2336]; (xix) Limited Objection of Red Rock Administrative Services LLC,
Racing and Gaming Services, Ltd., Amwest Entertainment, LLC, Bettor Racing, Inc.
d/b/a Royal River Racing and The Elite Turf
4
Club,
N.V., dated April 16, 2010 [Docket No. 2337]; (xx) Objection of Westchester Fire
Insurance Company and ACE USA (“Westchester Fire”),
dated April 16, 2010 [Docket No. 2338]; (xxi) Limited Objection of PNC Bank,
National Association, dated April 16, 2010 [Docket No. 2339]; (xxii) Objection
of The Regents of the University of California, dated April 16, 2010 [Docket No.
2340]; (xxiii) Objection of the State of Maryland (“Maryland”), dated
April 16, 2010 [Docket No. 2343]; (xxiv) Objection of Zurich American Insurance
Company (“Zurich”), dated April
16, 2010 [Docket No. 2344]; (xxv) Objection of Dallas County, dated April 16,
2010 [Docket No. 2349]; and (xxvi) Supplement to Plan Objection of Santa Anita
Associates, LLC and its Managing Member, Santa Anita Associates Holding Co.,
LLC, dated April 21, 2010 [Docket No. 2398] (collectively, the “Objections”); and the
Plan having been modified to conform with the Court’s ruling on those Objections
that the Court sustained and the balance of the Objections having been resolved,
overruled, or withdrawn prior to or during the hearing to consider confirmation
of the Plan (the “Confirmation
Hearing”); and the Court having held the Confirmation Hearing on April
20, 2010, April 22, 2010 and April 26, 2010; and after due deliberation and
sufficient cause appearing therefor; the Court hereby FINDS, DETERMINES, AND
CONCLUDES that:
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
A. Findings and
Conclusions. The findings and conclusions set forth herein and
in the record of the Confirmation Hearing constitute the Court’s findings of
fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil
Procedure, as made applicable herein by Bankruptcy Rules 7052 and
9014. 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.
5
B. Jurisdiction, Venue, Core
Proceeding (28 U.S.C. §§ 157(b)(2), 1334(a)). The Court
has jurisdiction over the Debtors’ Chapter 11 Cases pursuant to 28 U.S.C.
§ 1334. Approval 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 with
respect thereto. The Debtors are eligible debtors under section 109
of the Bankruptcy Code. Venue is proper before this Court pursuant to
28 U.S.C. §§ 1408 and 1409. The Plan Proponents are proper plan
proponents under section 1121(a) of the Bankruptcy Code.
C. Chapter 11
Petitions. Commencing on March 5, 2009 (the “Petition Date”), each
of the Debtors filed voluntary petitions for relief under chapter 11, title 11
of the United States Code (the “Bankruptcy Code”)
with the Bankruptcy Court. The Debtors continue to operate their
businesses and manage their properties as debtors in possession pursuant to
sections 1107(a) and 1108 of the Bankruptcy Code. In accordance with
an Order of the Bankruptcy Court, the Debtors’ cases are being jointly
administered pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy
Procedure (the “Bankruptcy
Rules”). On March 18, 2009, the Office of the United States
Trustee for the District of Delaware (the “U.S. Trustee”)
appointed the Creditors’ Committee. No trustee or examiner has been
appointed in the Debtors’ Chapter 11 Cases.
D. Judicial
Notice. The Court takes judicial notice of the docket of the
Debtors’ cases maintained by the Clerk of the Court, including all pleadings and
other documents filed, all orders entered, and all evidence and arguments made,
proffered, or adduced at the hearings held before the Court during the pendency
of the Debtors’ cases.
6
E. Burden of
Proof. The Plan Proponents have the burden of proving the
elements of sections 1129(a) and (b) of the Bankruptcy Code by a preponderance
of the evidence. With respect to each Debtor, the Plan Proponents
have met their burden.
F. Adequacy of Disclosure
Statement. Pursuant to the Disclosure Statement Order, the
Court approved the Disclosure Statement and found, among other things, that the
Disclosure Statement contained “adequate information” within the meaning of
section 1125 of the Bankruptcy Code and authorized the Debtors to solicit
acceptances and rejections of the Plan as provided in the Solicitation
Procedures.
G. Voting. As
evidenced by the Voting Certification, votes to accept or reject the Plan have
been solicited and tabulated fairly, in good faith, and in a manner consistent
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”) and
applicable nonbankruptcy law.
H. Solicitation. The
Plan, the Disclosure Statement, the Disclosure Statement Order, the Ballots and
notice of the Confirmation Hearing were transmitted and served in compliance
with the Bankruptcy Rules, including Bankruptcy Rules 3017 and 3018, the Local
Rules, and the Confirmation Order. The forms of the Ballots
adequately address the particular needs of these Chapter 11 Cases and are
appropriate for holders of Class 2 (MID Claims), Class 3 (Wells Fargo Claim),
Class 5 (BMO Claim), Class 6 (Secured Claims), Class 7 (8.55% Note Claims),
Class 8 (7.25% Note Claims), Classes 9 through 26 (Non-MJC General Unsecured
Claims) and Class 35 (General Liability Insured Litigation Claims)– the Classes
of Claims entitled under the Plan to vote to accept or reject the
Plan. The period during which the Debtors solicited acceptances to
the Plan was a reasonable period of time for holders to make an
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informed
decision to accept or reject the Plan. The Debtors were not required
to solicit votes from the holders of Class 1 (Priority Non-Tax Claims), Class 4
(PNC Claim), and Classes 27 through 34 (MJC Claims) as each of these Classes is
unimpaired under the Plan, and thus, deemed to accept the Plan. The
Debtors also were not required to solicit votes from the holders of Classes 36
through 62 (Equity Interests), as these classes will not receive any recovery
under the Plan, and thus, are deemed to reject the Plan. As described
in and as evidenced by the Voting Certification, the transmittal and service of
the Plan, the Disclosure Statement, the Ballots, the notice of the Confirmation
Hearing and publication of such notice of the Confirmation Hearing (all of the
foregoing, the “Solicitation”) was
timely, adequate and sufficient under the circumstances. The
Solicitation also included a letter, dated March 26, 2010, from the Creditors’
Committee recommending that unsecured creditors vote to accept the
Plan. The Solicitation of acceptances and rejections with respect to
the Plan complied with the Solicitation Procedures, was appropriate and
satisfactory based upon the circumstances of the Debtors, was conducted in good
faith, and was in compliance with the provisions of the Disclosure Statement,
the Disclosure Statement Order, the Bankruptcy Code, the Bankruptcy Rules, and
the Local Rules, and any other applicable rules, laws and
regulations. The Debtors, Creditors’ Committee, MID, MID Financing
and their respective successors, predecessors, control persons, members,
officers, directors, employees and agents and their respective attorneys,
financial advisors, investment bankers, accountants, and other professionals
retained by such persons, the Reorganized Debtors, and any and all affiliates,
members, managers, shareholders, partners, employees, attorneys and advisors of
the foregoing are entitled to the protections of section 1125(e) of the
Bankruptcy Code.
8
I. Notice. As
is evidenced by the Voting Certification, the transmittal and service of the
Plan, the Disclosure Statement and Ballots were adequate and sufficient under
the circumstances, and all parties required to be given notice of the
Confirmation Hearing (including the deadline for filing and serving objections
to confirmation of the Plan) have been given due, proper, timely, and adequate
notice in accordance with the Confirmation Order and in compliance with the
Bankruptcy Code, the Bankruptcy Rules, and the Local Rules and applicable
nonbankruptcy law and such parties have had an opportunity to appear and be
heard with respect thereto. Moreover, as evidenced by that certain
Affidavit of Publication of the Notice of Confirmation Hearing in The Wall Street
Journal, dated April 8, 2010 [Docket No. 2266], and that certain
Affidavit of Publication of the Notice of the Confirmation Hearing in USA Today,
dated April 14, 2010 [Docket No. 2301], the Debtors published notice of the
Confirmation Hearing in The Wall Street Journal (National Edition) and USA Today on April 5,
2010 and April 6, 2010, respectively. No other or further notice or
re-solicitation is required.
J. Plan
Supplement. On April 7, 2010, the Debtors filed that certain
Schedule of Executory Contracts and Unexpired Leases Intended to be Assumed and
Assigned and Associated Cure Costs Related Thereto (the “Assumption Schedule”)
[Docket No. 2258]. On April 19, 2010, the Debtors filed the Plan
Supplement, which includes, among other things, the following documents: (i) the
Restated Certificates of Incorporation, (ii) the Restated By-laws, (iii) the
Operating Trust Agreement, (iv) the Plan Administration Agreement, (v) the MID
Asset Transfer Agreement, (vi) the Shared Insurance Policies and (vii) the
schedules listing the executory contracts and unexpired leases of MEC Lone Star
and Thistledown that shall be assumed and assigned upon consummation of the LSP
Sale and/or Thistledown Sale.
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K. Modifications of the
Plan. Modifications made to the Plan since the Solicitation,
including the modifications contained in the April 27, 2010 version of the Plan
attached hereto as Exhibit “A,” complied in all respects with section 1127 of
the Bankruptcy Code and Bankruptcy Rule 3019.
L. Acceptance of the
Plan. As evidenced by the Voting Certification, pursuant to
section 1124 and 1126 of the Bankruptcy Code, all Impaired Classes (as defined
herein) entitled to vote on the Plan have accepted the Plan.
M. Compromise and Settlement
Embodied in the Plan. The Plan embodies a Settlement of the
Committee Litigation (as those terms are defined in the Disclosure
Statement). In the absence of the Settlement, the Debtors would
likely not be able to confirm a plan and the Debtors would be forced to
liquidate their estates to the detriment of their estates, creditors, employees
and other parties in interest. Confirmation of the Plan ensures the
continued operation of the racetracks and other businesses currently owned,
operated or managed by the Debtors and safeguards the employment of thousands of
employees. The terms and provisions of the Plan reflect that the
Settlement is fair and equitable and within the range of
reasonableness.
N. Releases, Discharges,
Exculpations and Injunctions. Based upon the facts and
circumstances of these Chapter 11 Cases, the releases, discharges, exculpations
and injunctions set forth in Article 34 of the Plan are supported by good and
valuable consideration, the adequacy of which is hereby
confirmed. Moreover, this Court finds that such releases, discharges,
exculpations and injunctions are fair, equitable, reasonable and integral
elements of the resolution of these Chapter 11 Cases and the Committee
Litigation, are an essential component of the Settlement, and are in the best
interests of the Debtors and their estates.
10
Accordingly,
the releases, discharges, exculpations and injunctions embodied in Article 34 of
the Plan shall be effective and binding upon all Persons and Entities as
provided in the Plan, in accordance with and pursuant to sections 105, 524,
1123, 1129 and 1141 and all other applicable provisions of the Bankruptcy Code
and applicable non-bankruptcy law.
Compliance with the
Requirements of Section 1129 of the Bankruptcy Code
O. Plan Compliance with the
Bankruptcy Code (11 U.S.C. § 1129(a)(1)). The Plan
complies with the applicable provisions of the Bankruptcy Code and, as required
by Bankruptcy Rule 3016, the Plan is dated and identifies the Debtors,
Creditors’ Committee, MID and MID Financing as proponents, thereby satisfying
section 1129(a)(1) of the Bankruptcy Code.
(a) Proper Classification (11
U.S.C. §§ 1122, 1123(a)(1)). With the exception of
Administrative Expense Claims and Priority Tax Claims, which need not be
classified, Articles V through XVII of the Plan classify sixty-two (62) Classes
of Claims and Equity Interests for the Debtors. The Claims and Equity
Interests placed in each Class are substantially similar to the other Claims and
Equity Interests, as the case may be, in each such Class. Valid
business, factual, and legal reasons exist for separately classifying the
various Classes of Claims and Equity Interests created under the Plan, and such
Classes do not unfairly discriminate between holders of Claims and Equity
Interests. The Plan therefore satisfies sections 1122 and
1123(a)(1) of the Bankruptcy Code. See Rayburn Affidavit ¶
10.
(b) Specified Treatment of
Unimpaired Classes (11 U.S.C. § 1123(a)(2)). Articles V, VIII
and XIV of the Plan specify that Class 1 (Priority Non-Tax Claims), Class 4 (PNC
Claim) and Classes 27 through 34 (MJC Claims) (collectively, the “Unimpaired Classes”),
respectively, are unimpaired under the Plan within the meaning of section 1124
of the
11
Bankruptcy
Code, thereby satisfying section 1123(a)(2) of the Bankruptcy
Code. See
Rayburn Affidavit ¶ 10.
(c) Specified Treatment of
Impaired Classes (11 U.S.C. § 1123(a)(3)). Articles VI,
VII, IX through XIII, XV and XVII of the Plan designate Class 2 (MID Claims),
Class 3 (Wells Fargo Claim), Class 5 (BMO Claim), Class 6 (Secured Claims),
Class 7 (8.55% Note Claims), Class 8 (7.25% Note Claims), Classes 9 through 26
(Non-MJC General Unsecured Claims), Class 35 (General Liability Insured
Litigation Claims), Class 36 (Subordinated Claims) and Classes 37 through 62
(Equity Interests) (collectively, the “Impaired Classes”),
respectively, as impaired within the meaning of section 1124 of the Bankruptcy
Code and specify the treatment of the Claims and Equity Interests in those
Classes, thereby satisfying section 1123(a)(3) of the Bankruptcy
Code. See
Rayburn Affidavit ¶ 10.
(d) No Discrimination (11 U.S.C.
§ 1123(a)(4)). The Plan provides for the same treatment for
each Claim or Equity Interest in each respective Class unless the holder of a
particular Claim or Equity Interest has agreed to a less favorable treatment of
such Claim or Equity Interest, thereby satisfying section 1123(a)(4) of the
Bankruptcy Code. See Rayburn Affidavit ¶
10.
(e) Implementation of the Plan
(11 U.S.C. § 1123(a)(5)). The Plan and the various documents
and agreements set forth in the Plan Supplement provide adequate and proper
means for the implementation of the Plan, thereby satisfying section 1123(a)(5)
of the Bankruptcy Code, including (i) all corporate action as set forth more
fully in Article XXXIII of the Plan, including the adoption and filing of the
Reorganized Debtors Certificates of Incorporation and the Reorganized Debtors
By-laws, (ii) the issuance of Equity Interests in the Reorganized Debtors, (iii)
the cancellation of the 7.25% Indenture, 7.25% Notes, 8.55%
12
Indenture,
8.55% Notes and the Equity Interests, except as provided in Section 33.4 of the
Plan and (iv) the surrender of each of the 8.55% Note Claims and 7.25% Note
Claims to the Indenture Trustee. See Rayburn Affidavit ¶
10.
(f) Prohibition of Issuance of
Non-Voting Securities (11 U.S.C. § 1123(a)(6)). Section 33.1
of the Plan provides that, on or before the Effective Date, the Debtors will
file the Reorganized Debtors Certificates of Incorporation and the Reorganized
Debtors By-laws under the supervision of the Office of the Attorney General and
the Reorganized Debtors shall not issue any non-voting equity securities,
thereby satisfying section 1123(a)(6) of the Bankruptcy Code. See Rayburn Affidavit ¶
10.
(g) Designation of Directors and
Officers (11 U.S.C. § 1123(a)(7)). Article XXXII of the Plan
contains provisions with respect to the manner of selection of directors and
officers of the Reorganized Debtors that are consistent with the interests of
creditors, equity security holders, and public policy, thereby satisfying
section 1123(a)(7) of the Bankruptcy Code. See Rayburn Affidavit ¶
10.
(h) Impairment/Unimpairment of
Classes of Claims and Equity Interests (11 U.S.C. §
1123(b)(1)). Pursuant to Articles V, VIII and XIV of the Plan,
Class 1 (Priority Non-Tax Claims), Class 4 (PNC Claim) and Classes 27 through 34
(MJC Claims) are unimpaired, as contemplated by section 1123(b)(1) of the
Bankruptcy Code, and, pursuant to Articles VI, VII, IX through XIII, XV through
XVII of the Plan, Class 2 (MID Claims), Class 3 (Wells Fargo Claim), Class 5
(BMO Claim), Class 6 (Secured Claims), Class 7 (8.55% Note Claims), Class 8
(7.25% Note Claims), Classes 9 through 26 (Non-MJC General Unsecured Claims),
Class 35 (General Liability Insured Litigation Claims), Class 36 (Subordinated
Claims) and Classes 37 through 62 (Equity Interests) are impaired or may be
impaired. See Rayburn Affidavit ¶
9.
13
(i) Assumption and Rejection (11
U.S.C. § 1123(b)(2)). Article XXVI of the Plan, the Assumption
Schedule and any amendment thereto addresses the assumption and rejection of
executory contracts and unexpired leases, and meets the requirements of section
365(b) of the Bankruptcy Code. The deadline to object to any cure
amount in connection with the Debtors’ assumption of executory contracts and
unexpired leases pursuant to Article XXVI of the Plan has yet to
expire. Additionally, the Plan Supplement sets forth the executory
contracts and unexpired leases that will be assumed and assigned upon
consummation of the LSP Sale and/or Thistledown Sale. See Rayburn Affidavit ¶
41.
(j) Additional Plan Provisions
(11 U.S.C. § 1123(b)(6)). The provisions of the Plan are
appropriate and consistent with the applicable provisions of the Bankruptcy
Code, thereby satisfying section 1123(b)(6) of the Bankruptcy
Code. See
Rayburn Affidavit ¶ 11-13.
(k) Cure of Defaults (11 U.S.C.
§ 1123(d)). Section 26.2 of the Plan provides for the
satisfaction of default claims associated with each executory contract and
unexpired lease to be assumed pursuant to the Plan in accordance with section
365(b)(1) of the Bankruptcy Code. All cure amounts will be determined
in accordance with the underlying agreements and applicable bankruptcy and
nonbankruptcy law. In the event of a dispute regarding (a) the amount
of any cure payment, (b) the ability of MID Transferee to provide “adequate
assurance of future performance” (within the meaning of section 365 of the
Bankruptcy Code) under the contract or lease to be assumed or (c) any other
matter pertaining to assumption arises, the cure payments required by section
365(b)(1) of the Bankruptcy Code shall be subject to the jurisdiction of the
Bankruptcy Court and made following the entry of a Final Order resolving such
dispute; provided, however, that any
objections to the cure amount listed on the Assumption Schedule must be filed on
the later of (i) thirty (30) days after any amendment to the
Assumption
14
Schedule
has been filed and served on all affected parties or (ii) thirty (30) days after
the Effective Date. With respect to the executory contracts and
unexpired leases that will be assumed and assigned upon the consummation of the
LSP Sale and/or the Thistledown Sale, any objections to cure amounts, must be in
writing and filed with the Court and served on the Reorganized Debtors Plan
Administrator no later than thirty (30) days after the Effective
Date. Thus, the Plan complies with section 1123(d) of the Bankruptcy
Code.
P. The Plan Proponents’
Compliance with the Bankruptcy Code (11 U.S.C.
§ 1129(a)(2)). The Plan Proponents have complied with the
applicable provisions of the Bankruptcy
Code. Specifically:
(a) Each of
the Debtors is an eligible debtor under section 109 of the Bankruptcy Code;
and
(b) The Plan
Proponents have complied with applicable provisions of the Bankruptcy Code,
except as otherwise provided or permitted by orders of the Bankruptcy Court, and
in transmitting the Plan, the Plan Supplement, the Disclosure Statement, the
Ballots, and related documents and notices and in soliciting and tabulating the
votes on the Plan, the Debtors have complied with the applicable provisions of
the Bankruptcy Code, including sections 1125 and 1126(b), the Bankruptcy Rules,
the Local Rules, applicable nonbankruptcy law, the Confirmation Order, and all
other applicable law. See Rayburn Affidavit ¶
14.
Q. Plan Proposed in Good Faith
(11 U.S.C. § 1129(a)(3)). The Plan Proponents have
proposed the Plan (including all documents necessary to effectuate the Plan) in
good faith and not by any means forbidden by law, thereby satisfying section
1129(a)(3) of the Bankruptcy Code. The Plan Proponents’ good faith is
evident from the facts and record of these Chapter 11 Cases, the Disclosure
Statement, and the record of the Confirmation Hearing and
15
other
proceedings held in these Chapter 11 Cases. The Plan was proposed
with the legitimate and honest purpose of maximizing the value of the Debtors’
estates and to maximize distributions to all creditors. The Plan,
including all documents necessary to effectuate the Plan, was negotiated at
arms’ length among the Debtors, Creditors’ Committee, MID, MID Financing, and
their respective professionals. The Creditors’ Committee, MID and MID
Financing, as well as the individual signatories to the Plan Support Agreement,
support confirmation of the Plan. Further, the Plan’s classification,
indemnification, exculpation, release, and injunction provisions have been
negotiated in good faith and at arms’ length, are consistent with sections 105,
1122, 1123(b)(3)(A), 1123(b)(6), 1129, and 1142 of the Bankruptcy Code, and each
are integral to the Plan and supported by valuable
consideration. See Rayburn Affidavit ¶
16.
R. Payment for Services or
Costs and Expenses (11 U.S.C. § 1129(a)(4)).
(a) Any
payment made or to be made by the Debtors for services or for costs and expenses
of the Debtors’ professionals 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, the Court as reasonable, thereby
satisfying section 1129(a)(4) of the Bankruptcy Code. See Rayburn Affidavit ¶
17.
(b) All fees
and expenses, as well as other accrued fees and expenses of professionals
through the Effective Date remain subject to final review by the Court for
reasonableness under sections 327, 328, 330, 331, 363(b) and 503(b) of the
Bankruptcy Code. See Rayburn Affidavit ¶
17.
S. Directors, Officers, and
Insiders (11 U.S.C. § 1129(a)(5)). The Plan Proponents
have complied with section 1129(a)(5) of the Bankruptcy Code. The
identity and affiliations of the persons proposed to serve as the initial
directors and officers of the
16
Reorganized
Debtors after confirmation of the Plan have been fully disclosed to the extent
such information is available, and the appointment to, or continuance in, such
offices of such persons is consistent with the interests of holders of Claims
against and Equity Interests in the Debtors and with public
policy. As set forth in the Plan, on the Effective Date, the new
board of directors of the Reorganized Debtors shall be initially comprised of
two (2) members, William G. Ford and Blake Tohana. Each such member
will serve in accordance with the terms and subject to the conditions of the
Reorganized Debtors Certificates of Incorporation, the Reorganized Debtors
By-Laws, and other relevant organizational documents, each as
applicable. The identity of any insider that will be employed or
retained by the Reorganized Debtors and the nature of such insider’s
compensation have also been disclosed, to the extent necessary. On
the Effective Date, the new board of directors of MID Transferee, an affiliate
of the Debtors, shall be initially comprised of three (3) members, Dennis Mills,
Vice-Chairman & Chief Executive Officer of MID, Don Cameron, Chief Operating
Officer of MID, and Rocco Liscio, Executive Vice-President and Chief Financial
Officer of MID. Thus, the identity and affiliations of the persons
proposed to serve as the initial directors and officers of the Debtors and MID
Transferee, an affiliate of the Debtors, after confirmation of the Plan have
been fully disclosed, and the appointment to, or continuance in, such offices of
such persons is consistent with the interests of holders of Claims against and
Equity Interests in the Debtors and with public policy. See Rayburn Affidavit ¶
18.
T. No Rate Changes (11 U.S.C.
§ 1129(a)(6)). The Plan does not provide for rate changes
by any of the Reorganized Debtors. Thus, section 1129(a)(6) of the
Bankruptcy Code is not applicable in these Chapter 11 Cases. See Rayburn Affidavit ¶
19.
17
U. Best Interest of Creditors
(11 U.S.C. § 1129(a)(7)). The Plan satisfies section
1129(a)(7) of the Bankruptcy Code. The liquidation analyses provided
in the Disclosure Statement and other evidence proffered or adduced at the
Confirmation Hearing (i) are persuasive and credible, (ii) have not
been controverted by other evidence, and (iii) establish that each holder
of an impaired Claim or Equity Interest either 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 receive or retain if the Debtors were liquidated under
chapter 7 of the Bankruptcy Code on such date. See Rayburn Affidavit ¶
20-24. The liquidation analyses, provided in the Disclosure
Statement, including the methodology used and estimations and assumptions made
therein, and the evidence related thereto that was proffered at the Confirmation
Hearing, (a) are persuasive and credible as of the dates such evidence was
prepared, presented or proffered, (b) either have not been controverted by other
persuasive evidence or have not been challenged, (c) are based upon reasonable
and sound assumptions, and (d) provide a reasonable estimate of the liquidation
value of the Debtors’ estates upon a conversion to a chapter 7
proceeding. Therefore, the Plan satisfies the requirements of section
1129(a)(7) of the Bankruptcy Code.
V. Acceptance by Certain
Classes (11 U.S.C. § 1129(a)(8)). Each Impaired Class has
voted to accept the Plan in accordance with sections 1126(b) and (c) of the
Bankruptcy Code, without regard to the votes of insiders of the
Debtors. See
Rayburn Affidavit ¶ 25 and Gershbein Certification ¶ 11.
W. Treatment of Administrative
Expense Claims, Priority Tax Claims, and Other Priority Claims (11 U.S.C.
§ 1129(a)(9)). The treatment of Allowed Administrative
Expense Claims pursuant to Section 3.1 of the Plan satisfies the requirements of
section
18
1129(a)(9)(A)
of the Bankruptcy Code. The treatment of Priority Non-Tax Claims
pursuant to Section 5.1 of the Plan satisfies the requirements of section
1129(a)(9)(B) of the Bankruptcy Code. The treatment of Priority Tax
Claims pursuant to Section 3.2 of the Plan satisfies the requirements of section
1129(a)(9)(C) of the Bankruptcy Code. See Rayburn Affidavit ¶
26-30. Pursuant to the Notice of Payment of Priority Tax Claims filed
on April 19, 2010, to the extent any claimant is determined to hold an Allowed
Priority Tax Claim, such holder shall receive, on the Effective Date: (i) the
payment of such holder’s Allowed Priority Tax Claim in full, in Cash; (ii) in
accordance with section 1129(a)(9)(C) of the Bankruptcy Code, in full, in Cash,
in equal quarterly installments, commencing on the first (1st) Business Day
following the Effective Date and ending on the fifth (5th) anniversary of the
commencement of the Chapter 11 Cases, together with interest accrued thereon at
a rate of 4.25% per annum; or (iii) such other distribution as determined by
mutual agreement of the holder of such Allowed Priority Tax Claim and the
Debtors or Reorganized Debtors (as directed by MID or MID
Transferee).
X. Acceptance by Impaired Class
(11 U.S.C. § 1129(a)(10)). Classes 3, 5 through 26 and
Class 35 voted to accept the Plan by the requisite majorities, determined
without including any acceptance of the Plan by any insider, thereby satisfying
the requirements of section 1129(a)(10) of the Bankruptcy Code. See Rayburn Affidavit ¶
31. The Ballot submitted by Wells Fargo Bank N.A. shall be treated as
an acceptance of the Plan.
Y. Feasibility (11 U.S.C.
§ 1129(a)(11)). The information in the Disclosure
Statement, the Supporting Affidavits, and the evidence proffered or adduced at
the Confirmation Hearing (i) is persuasive and credible, (ii) has not
been controverted by other evidence, and (iii) establishes that the Plan is
feasible because, in the context of the Plan where there will be no ongoing
business for the Reorganized Debtors, the Plan Proponents have the ability to
satisfy the
19
conditions
precedent to the Effective Date and otherwise have sufficient funds to meet
their post-confirmation obligations to pay for the costs of administering and
fully consummating the Plan because the Reorganized Debtors Plan Administrator
will implement and consummate the transactions contemplated pursuant to the Plan
and will be compensated from Creditor Cash and/or by MID Transferee pursuant to
a budget to be agreed upon by the Creditors’ Committee and MID Transferee,
thereby satisfying the requirements of section 1129(a)(11) of the Bankruptcy
Code. See
Rayburn Affidavit ¶ 32-33; Liscio Affidavit ¶ 14-19.
Z. Payment of Fees (11 U.S.C.
§ 1129(a)(12)). All fees currently payable under section
1930 of title 28, United States Code, as determined by the Bankruptcy Code, have
been or will be paid on or before the Effective Date pursuant to Section 35.12
of the Plan, thereby satisfying the requirements of section 1129(a)(12) of the
Bankruptcy Code. See Rayburn
Affidavit ¶ 34.
AA. Continuation of Retiree
Benefits (11 U.S.C. § 1129(a)(13)). Section 35.13 of the
Plan provides that, from and after the Effective Date, all retiree benefits,
subject to sections 1114 and 1129(a)(13) of the Bankruptcy Code, and Pension
Plans shall be treated as if they were executory contracts that are to be
assumed by the MID Transferee under the Plan. The Plan satisfies the
requirements of section 1129(a)(13) of the Bankruptcy Code. See Rayburn Affidavit ¶
35.
BB. No Domestic Support
Obligations (11 U.S.C. § 1129(a)(14)). The Debtors are
not required by a judicial or administrative order, or by statute, to pay a
domestic support obligation. Accordingly, section 1129(a)(14) of the
Bankruptcy Code is inapplicable in these Chapter 11 Cases. See Rayburn Affidavit ¶
36.
US_ACTIVE:\43212605\05\65859.00
RLF1
3565777V.20
20
CC. Debtors Are Not Individuals
(11 U.S.C. § 1129(a)(15)). The Debtors are not
individuals, and accordingly, section 1129(a)(15) of the Bankruptcy Code is
inapplicable in these Chapter 11 Cases. See Rayburn Affidavit ¶
37.
DD. No Applicable Nonbankruptcy
Law Regarding Transfers (11 U.S.C. § 1129(a)(16)). The
Debtors are each a moneyed, business, or commercial corporation, and
accordingly, section 1129(a)(16) of the Bankruptcy Code is inapplicable in these
Chapter 11 Cases. See Rayburn Affidavit ¶
38.
EE. No Unfair Discrimination;
Fair and Equitable (11 U.S.C. § 1129(b)). No
Impaired Class receiving a distribution under the Plan voted to reject the
Plan. The only Impaired Classes that are deemed to have rejected to
the Plan are Classes 36 through 62 (Subordinated Claims and Equity
Interests). Based upon the evidence proffered, adduced, and presented
by the Debtors at the Confirmation Hearing, the Plan does not discriminate
unfairly and is fair and equitable with respect to the aforementioned Classes,
as required by sections 1129(b)(1) and (b)(2) of the Bankruptcy Code, because no
holder of any interest that is junior to each such Class will receive or retain
any property under the Plan on account of such junior interest, and no holder of
a Claim in a Class senior to such Classes is receiving more than 100% recovery
on account of its Claim. Thus, the Plan may be confirmed
notwithstanding the deemed rejection of the Plan by these
Classes. See
Rayburn Affidavit ¶ 39-40.
FF. Only One Plan (11 U.S.C. §
1129(c)). The Plan is the only plan filed in each of these
cases, and accordingly, section 1129(c) of the Bankruptcy Code is inapplicable
in these Chapter 11 Cases.
GG. Principal Purpose of the
Plan (11 U.S.C. § 1129(d)). The principal purpose of the
Plan is not the avoidance of taxes or the avoidance of the application of
section 5
21
of the
Securities Act and no governmental entity has objected to the confirmation of
the Plan on any such grounds. The Plan, therefore, satisfies the
requirements of section 1129(d) of the Bankruptcy Code.
HH. Good Faith Solicitation (11
U.S.C. § 1125(e)). Based on the record before the Court
in these Chapter 11 Cases, including evidence presented at the Confirmation
Hearing, the Debtors, Creditors’ Committee, MID, MID Financing, and their
respective successors, predecessors, control persons, members, officers,
directors, employees and agents and their respective attorneys, financial
advisors, investment bankers, accountants, and other professionals retained by
such persons (i) have acted in “good faith” within the meaning of section
1125(e) of the Bankruptcy Code in compliance with the applicable provisions of
the Bankruptcy Code, Bankruptcy Rules, the Local Rules and any applicable
non-bankruptcy law, rule, or regulation governing the adequacy of disclosure in
connection with all their respective activities relating to the solicitation of
acceptances to the Plan and their participation in the activities described in
section 1125 of the Bankruptcy Code and (ii) shall be deemed to have
participated in good faith and in compliance with the applicable provisions of
the Bankruptcy Code in the offer and issuance of any securities under the Plan,
and therefore are not, and on account of such offer, issuance and solicitation
will not be, liable at any time for the violation of any applicable law, rule or
regulation governing the solicitation of acceptances or rejections of the Plan
or the offer and issuance of the securities under the Plan, and are entitled to
the protections afforded by section 1125(e) of the Bankruptcy Code and, to the
extent such parties are listed therein, the exculpation provisions set forth in
Section 35.7 of the Plan.
22
II. Satisfaction of Confirmation
Requirements. Based upon the foregoing, the Plan satisfies the
requirements for confirmation set forth in section 1129 of the Bankruptcy
Code.
JJ. Implementation. All
documents necessary to implement the Plan, including those contained in the Plan
Supplement, and all other relevant and necessary documents have been negotiated
in good faith and at arms’ length and shall, upon completion of documentation
and execution, be valid, binding, and enforceable agreements and not be in
conflict with any federal or state law.
KK. Injunction, Exculpation, and
Releases. The Court has jurisdiction under sections 1334(a)
and (b) of title 28 of the United States Code to approve the injunction,
exculpation, and releases set forth in Article XXXV of the
Plan. Section 105(a) of the Bankruptcy Code permits issuance of the
injunction and approval of the releases set forth in Sections 35.5, 35.6 and
35.10 and of the Plan, if, as has been established here based upon the record in
these Chapter 11 Cases and the evidence presented at the Confirmation Hearing,
such provisions (i) are integral to the agreement among the various parties in
interest pursuant to the Settlement, as reflected in the Plan Support Agreement,
and are essential to the formulation and implementation of the Plan, as provided
in section 1123 of the Bankruptcy Code, (ii) confer substantial benefits on the
Debtors’ estates, (iii) are fair, equitable and reasonable, (iv) are in the best
interests of the Debtors, their estates, and parties in interest and (v) are
supported by valuable consideration. Pursuant to section 1123(b)(3)
of the Bankruptcy Code and Bankruptcy Rule 9019(a), this Court finds that such
releases, discharges, exculpations and injunctions are fair, equitable,
reasonable and integral elements of the resolution of these Chapter 11 Cases and
the Committee Litigation, are an essential component of the Settlement, and are
in the best
23
interests
of the Debtors, the Reorganized Debtors and their estates, creditors and
equity holders. The releases of non-Debtors under the Plan are fair
and necessary to the Plan and are supported by fair, sufficient, and valuable
consideration. The releases have been overwhelmingly approved by the
holders of claims in Impaired Classes of Claims entitled to vote on the
Plan. See
Voting Certification. The record of the Confirmation Hearing and
these Chapter 11 Cases is sufficient to support the releases, exculpation, and
injunction provided for in Sections 35.5, 35.6 and 35.10 of the
Plan. Accordingly, based upon the record of these Chapter 11 Cases,
the representations of the parties, and/or the evidence proffered, adduced,
and/or presented at the Confirmation Hearing, this Court finds that the
injunction, exculpation, and releases set forth in Article XXXV of the Plan are
consistent with the Bankruptcy Code and applicable law. The failure
to implement the injunction, exculpation and releases would seriously impair the
Plan Proponents’ ability to confirm and consummate the Plan, and would likely
lead to liquidation of the Debtors’ estates.
LL. Settlement of
Claims. Except as otherwise provided in the Plan and this
Order, the Plan represents a settlement between and among the Debtors and their
creditors and equity holders of all Claims and litigation against the Debtors,
pending or threatened, or that was or could have been commenced against the
Debtors prior to the date of entry of this Order (other than the Reorganized
Debtors Plan Administrator’s ability to prosecute objections to Claims as
otherwise provided in Section 19.1 of the Plan and transferred avoidance
actions). In order to comply with Bankruptcy Rule 9019, in the Third
Circuit, settlements and compromises must be fair, reasonable and in the best
interests of the estate. To determine if a settlement and compromise
is reasonable, this Court considers four principal factors: (1) probability of
success in litigation, (2) likely difficulties in collection, (3) the complexity
of the litigation and related
24
expense
and inconvenience and (4) the paramount interests of the
creditors. Based upon these factors, the settlement of the Committee
Litigation (the “Settlement”) is fair,
reasonable and in the best interests of the estate and within the range of
reasonableness. Each of the aforementioned factors weighs in favor of
approving the Settlement:
(i) Although
the Creditors’ Committee believes that its claims against MID have merit, the
Creditors’ Committee faced challenges presenting its case at trial because the
MID financings at issue were thoroughly documented as loans, evidence that would
have been introduced at trial was hotly contested and no non-hostile fact
witnesses were available to offer live testimony at trial. See Harkness Affidavit ¶
22.
(ii) The
Committee Litigation involved novel claims which required extensive legal
research, seven months of intense investigation and discovery, including the
production of over 67,000 documents and the taking of twenty-five (25)
depositions, and extensive trial preparation, yet the Creditors’ Committee
acknowledged a meaningful risk of loss at trial, which would have left unsecured
creditors with no recovery, and a substantial risk that the defendants could
appeal any decision in favor of the Committee and then be faced with a prolonged
appellate process with an uncertain outcome. See Harkness Affidavit ¶
8-24.
(iii) The
Creditors’ Committee believes that the Settlement will provide unsecured
creditors with a substantial and immediate recovery of more than $94 million,
rather than risk loss at trial or on appeal, which would have left unsecured
creditors with no recovery or a delayed recovery. See Harkness
Affidavit ¶ 21-24.
MM. Good
Faith. The Plan Proponents will be acting in good faith if
they proceed to (i) consummate the Plan and the agreements, settlements,
transactions, and transfers contemplated thereby and (ii) take the actions
authorized and directed by this Order.
NN. Valuation. Pursuant
to the valuation analysis set forth in the Disclosure Statement and the
testimony included in the Supporting Affidavits and adduced as part of the
Confirmation Hearing, the distributable value of the Debtors is insufficient to
support a distribution to Equity Interests under absolute priority
principles.
25
OO. Retention of
Jurisdiction. The Court may properly, and upon the Effective
Date shall, retain exclusive jurisdiction over all matters arising out of, and
related to, the Chapter 11 Cases, including the matters set forth in Article XXX
of the Plan and section 1142 of the Bankruptcy Code.
PP. Maryland
Agreement. Maryland, Magna Entertainment, MID US Financing,
and certain other parties have agreed to a resolution of Maryland’s asserted
right of first refusal and incorporated the terms thereof in a proposed
Settlement Agreement, a copy of which is annexed hereto as Exhibit “B” (the
“Settlement
Agreement”).
QQ. Canadian Securities
Law. This Court has been advised (i) of the requirements of Multilateral
Instrument 61-101 – Protection
of Security Holders in Special Transactions (“MI 61-101”) regarding
formal valuations and minority shareholder approval for related party
transactions, (ii) that MI 61-101 contains certain “bankruptcy exemptions” from
the formal valuation and minority shareholder approval requirements for related
party transactions, and (iii) that the Debtors will rely on this Order as the
basis for the “bankruptcy exemptions” from the formal valuation and minority
shareholder approval requirements with respect to the related party transactions
proposed to be effected between the Debtors and MID and its affiliates in
accordance with and pursuant to the Plan, as more particularly set forth in the
Disclosure Statement.
ORDER
ACCORDINGLY,
IT IS HEREBY ORDERED, ADJUDGED, DECREED, AND DETERMINED THAT:
1. Findings of Fact and
Conclusions of Law. The above-referenced findings of fact and
conclusions of law are hereby incorporated by reference as though fully set
forth
26
herein
and shall constitute findings of fact and conclusions of law pursuant to
Bankruptcy Rule 7052, made applicable herein by Bankruptcy Rule
9014. To the extent that any finding of fact shall be determined to
be a conclusion of law, it shall be deemed so, and vice versa.
2. Notice of the Confirmation
Hearing. Notice of the Confirmation Hearing complied with the
terms of the Disclosure Statement Order, was appropriate and satisfactory based
upon the circumstances of these Chapter 11 Cases, and was in compliance with the
provisions of the Bankruptcy Code, the Bankruptcy Rules, and the Local
Rules.
3. Solicitation. The
solicitation of votes on the Plan complied with the Solicitation Procedures, was
appropriate and satisfactory based upon the circumstances of these Chapter 11
Cases, and was in compliance with the provisions of the Disclosure Statement,
Bankruptcy Code, the Bankruptcy Rules, the Local Rules and applicable
nonbankruptcy law.
4. Ballots. The
forms of Ballots annexed to the Disclosure Statement Order are in compliance
with Bankruptcy Rule 3018(c), conform to Official Form Number 14, and are
approved in all respects.
5. Plan
Modifications. Modifications made to the Plan following the
solicitation of votes thereon satisfied the requirements of section 1127 of the
Bankruptcy Code and Bankruptcy Rule 3019.
6. Exempt From Registration
Requirements. To the extent that the Debtors’ solicitation of
acceptances of the Plan is deemed to constitute an offer of new securities, the
Debtors are exempt from the registration requirements of the Securities Act (and
of any equivalent state securities or “blue sky” laws) with respect to such
solicitation under section 4(2) of the Securities Act and Regulation D
promulgated thereunder. Section 4(2) exempts from registration under
the Securities Act all “transactions by an issuer not involving any
public
27
offering.” 15
U.S.C. § 77d(2). The Debtors have complied with the requirements of
section 4(2) of the Securities Act, as the postpetition solicitation of
acceptances would constitute a private placement of securities. The
solicitation to creditors was made only to those creditors who are “Accredited
Investors” as defined in Regulation D under the Securities Act, as creditors
were required to certify on their Ballots that they were accredited
investors.
7. Confirmation of the
Plan. The Plan and each of its provisions shall be, and hereby
are, CONFIRMED under section 1129 of the Bankruptcy Code. The
documents contained in the Plan Supplement are authorized and
approved. The terms of the Plan, including the Plan Supplement, are
incorporated by reference into and are an integral part of this
Order.
8. Objections. All
Objections, responses to, and statements and comments, if any, in opposition to,
the Plan and/or the Disclosure Statement, respectively, other than those
withdrawn with prejudice in their entirety prior to, or on the record at, the
Confirmation Hearing, shall be, and hereby are, overruled in their entirety for
the reasons stated on the record.
9. No
Action. Pursuant to the appropriate provisions of the General
Corporation Law of the State of Delaware and section 1142(b) of the Bankruptcy
Code, no action of the respective directors or stockholders of the Debtors shall
be required to authorize the Debtors to enter into, execute, deliver, file,
adopt, amend, restate, consummate, or effectuate, as the case may be, the Plan
and any contract, instrument, or other document to be executed, delivered,
adopted or amended in connection with the implementation of the
Plan.
10. Binding
Effect. On or after entry of this Order, and subject to the
occurrence of the Effective Date, the provisions of the Plan shall bind the
Debtors, the Reorganized Debtors, all holders of Claims and Equity Interests of
the Debtors (irrespective of whether such Claims or Equity Interests are
impaired under the Plan or whether the holders of
28
such
Claims or Equity Interests accepted, rejected or are deemed to have accepted or
rejected the Plan), any and all non-Debtor parties to executory contracts and
unexpired leases with any of the Debtors, any other party in interest in these
Chapter 11 Cases, and the respective heirs, executors, administrators,
successors, or assigns, if any, of any of the foregoing.
11. Free and
Clear. Except as otherwise provided in the Plan or in this
Order, from and after the Effective Date, (i) the Reorganized Debtors shall be
vested with all property of the Estates not otherwise transferred pursuant to
the terms of the Plan, free and clear of all Claims, liens, encumbrances,
charges and other interests of creditors and equity security holders of the
Debtors and (ii) the MID Reorganized Debtor Assets and Reorganized MID Debtor
Stock shall, pursuant to sections 1123 and 1141(c) of the Bankruptcy Code, be
transferred to MID Transferee free and clear of all Claims, liens, encumbrances,
charges and other interests of creditors and equity security holders of the
Debtors. From and after the Effective Date, the Reorganized Debtors
may operate each of their businesses and use, acquire or dispose of assets free
of any restrictions imposed by the Bankruptcy Code, the Bankruptcy Court, or the
United States Trustee (except for quarterly operating reports and fees
associated therewith).
12. Implementation of the
Plan. The Debtors and the Reorganized Debtors shall be
authorized to execute, deliver, file, or record such documents, contracts,
instruments, releases, and other agreements, including those contained in the
Plan Supplement, and take such other actions as may be necessary to effectuate,
implement, and further evidence the terms and conditions of the Plan, including
all such actions delineated in Article XXXIII of the Plan. On the
Effective Date, the appropriate officers or representatives of the Reorganized
Debtors and members of the boards of directors of the same are authorized and
empowered to issue, execute, file and deliver or record such documents,
contracts, instruments, releases and other agreements,
29
including
those contained in the Plan Supplement, contemplated by the Plan, in the name of
and on behalf of the Reorganized Debtors.
13. Issuance of New Common
Stock. The Reorganized Debtors and those Debtors issuing MID Reorganized
Debtor Stock are authorized to issue stock to the Plan Administrator or MID
Transferee, respectively. The stock issued by the Reorganized Debtors
and those Debtors issuing MID Reorganized Debtor Stock shall be, upon execution
and delivery, legal, valid, and binding obligations and are enforceable against
the Reorganized Debtors and those Debtors issuing MID Reorganized Debtor Stock
in accordance with their terms.
14. Elections by MID
Transferee. MID Transferee exercised (i) the AmTote Option as
provided in Section 1.26 of the Plan, (ii) the MJC Option as provided in Section
1.159 of the Plan, (iii) the Thistledown Option as provided in Section 1.280 of
the Plan and (iv) the XpressBet Option as provided in Section 1.300 in the
manner set forth in the April 9, 2010 Notice of Election of Options, a copy of
which is attached hereto as Exhibit “C” (the “Option Election
Notice”). The elections contained in the Option Election Notice are
approved in all respects and the Plan shall be deemed amended to reflect and to
give effect to the exercise of such elections.
15. Compliance with Section
1123(a)(6) of the Bankruptcy Code. The Reorganized
Debtors Certificates of Incorporation and the Reorganized Debtors By-Laws,
and the terms governing the issuance of the stock of the Reorganized Debtors,
comply in all respects with section 1123(a)(6) of the Bankruptcy Code, and are
hereby approved. The adoption and filing of the Reorganized Debtors
Certificates of Incorporation and the Reorganized Debtors By-Laws are hereby
authorized, ratified, and approved. The Debtors have complied in all
respects, to the extent necessary, with section 1123(a)(6) of the Bankruptcy
Code.
30
16. Exemption from Securities
Law. The issuance of Equity Interests in the Reorganized
Debtors and any other securities pursuant to the Plan (including, to the extent
considered securities, the Thistledown Trust Interests) and any subsequent
sales, resales or transfers, or other distributions of any such securities shall
be exempt from any federal or state securities laws registration requirements,
including section 5 of the Securities Act, to the fullest extent permitted by
section 1145 of the Bankruptcy Code.
17. Cancellation of Existing
Securities and Agreements. On the Effective Date, the 7.25%
Indenture, the 7.25% Notes, the 8.55% Indenture, the 8.55% Notes and the Equity
Interests in the Debtors shall be cancelled, other than the MEC Lone Star Stock,
which shall have the treatment set forth in Section 17.20 of the Plan and in
decretal paragraph 43 of this Order; provided, however, the 7.25%
Indenture and the 8.55% Indenture shall continue in effect solely for the
purpose of (i) allowing the holders of the Allowed 8.55% Note Claims and Allowed
7.25% Note Claims to receive their distributions under the Plan and (ii)
permitting the Indenture Trustee to maintain any rights or Liens it may have for
fees, costs and expenses under the 7.25% Indenture and the 8.55% Indenture which
such rights or Liens shall only be satisfied from Creditor
Cash. Pursuant to Section 24.8(b) of the Plan, to the extent that the
MID Litigation Consideration is insufficient to compensate the reasonable fees
and expenses of the Indenture Trustee, the Indenture Trustee shall be paid in
Cash on the Effective Date from the distributions otherwise allocable to holders
of record of Allowed 8.55% Note Claims and Allowed 7.25% Note
Claims.
18. Surrender of Existing
Securities. As soon as practicable, on or after the Effective
Date, each holder of an 8.55% Note Claim and 7.25% Note Claim shall surrender
its Subordinated Note(s) to the Indenture Trustee or in the event such
Subordinated Note(s) are held
31
in the
name of, or by nominees of, The Depository Trust Company, Euroclear S.A./N.V. or
Clearstream International, as applicable, the Reorganized Debtors shall seek the
cooperation of The Depository Trust Company to provide appropriate instructions
to the Indenture Trustee. No distributions under the Plan shall be
made for or on behalf of such holder unless and until (a) such Subordinated Note
is received by the Indenture Trustee, (b) the Indenture Trustee receives
appropriate instructions from The Depository Trust Company, Euroclear S.A./N.V.
or Clearstream International, as applicable, or (c) the loss, theft or
destruction of such Subordinated Note is established to the reasonable
satisfaction of the Indenture Trustee, which such satisfaction may require such
holder to submit (1) a lost instrument affidavit and (2) an indemnity bond
holding the Debtors, the Reorganized Debtors, and the Indenture Trustee harmless
in respect of such Subordinated Note and any distributions made
thereof. Upon compliance with this decretal paragraph 18 by a holder
of the 8.55% Note Claim and 7.25% Note Claim, such holder shall, for all
purposes under the Plan, be deemed to have surrendered such note. Any
holder that fails to surrender such Subordinated Note or fails to satisfactorily
explain its non-availability to the Indenture Trustee within one (1) year of the
Effective Date shall be deemed to have no further Claim against the Debtors and
the Reorganized Debtors (or their property) or the Indenture Trustee in respect
of such Claim and shall not participate in any distribution under the
Plan. All property in respect of such forfeited distributions,
including interest thereon, shall be promptly returned to the Reorganized
Debtors by the Indenture Trustee and any such note shall be
cancelled.
19. Subordination. Except
as otherwise expressly provided in the Plan, this Order or a separate order of
this Court, the classification and manner of satisfying all Claims and Equity
Interests under the Plan takes into consideration all subordination rights,
whether arising
32
by
contract or under general principles of equitable subordination, section 510 of
the Bankruptcy Code, or otherwise. All subordination rights that a
holder of a Claim or Equity Interest may have with respect to any distribution
to be made under the Plan shall be discharged and terminated and all actions
related to the enforcement of such subordination rights shall be enjoined
permanently. Accordingly, the distributions under the Plan to the
holders of Allowed Claims will not be subject to payment of a beneficiary of
such subordination rights, or to levy, garnishment, attachment or other legal
process by a beneficiary of such terminated subordination rights.
20. Cancellation of
Liens. Upon the payment to any holder of an Allowed Secured
Claim in Cash, or as otherwise provided in the Plan, any Lien securing any
Allowed Secured Claim shall be deemed released, and the holder of such Allowed
Secured Claim shall be authorized and directed to release any collateral or
other property of any Debtor (including any cash collateral) held by such holder
and to take such actions as may be requested by MID Transferee or the
Reorganized Debtors, to evidence the release of such Lien, including the
execution, delivery and filing or recording of such releases, as may be
requested by MID Transferee or the Reorganized Debtors, as
appropriate.
21. Compromise of
Controversies. In consideration for the distributions and
other benefits, including releases, provided under the Plan, the provisions of
the Plan constitute a good faith compromise and settlement of all Claims and
controversies resolved under the Plan, including the Settlement, and the entry
of this Order constitutes approval of such compromise and settlement under
Bankruptcy Rule 9019. The Debtors are authorized to make any and
all distributions as contemplated under, and as provided for in, the Plan on and
after the Effective Date, including, without limitation, in accordance with
Section 2.1 of the Plan, the payment of the KLNF Contingency Fee out of
distributions to holders of Non-MJC General Unsecured
33
Claims on
the Effective Date, subject to review by this Court in connection with KLNF's
Final Fee Application (as defined later herein), and the distribution of the MID
Litigation Cash Consideration.
22. Assumption or Rejection of
Contracts and Leases. Pursuant to Section 26.1 of the Plan,
except as otherwise provided herein, or in any contract, instrument, release,
indenture, or other agreement or document entered into in connection with the
Plan, as of the Effective Date, each Debtor shall be deemed to have rejected
each executory contract and unexpired lease to which it is a party, pursuant to
section 365 of the Bankruptcy Code, unless such contract or lease (i) was
previously assumed or rejected by the Debtors, (ii) previously expired or
terminated pursuant to its own terms or by agreement of the Parties, (iii) is
the subject of a motion to reject filed by the Debtors on or before the
Confirmation Date, (iv) is set forth in the Assumption Schedule, as an executory
contract or unexpired lease to be assumed and assigned to MID Transferee or (v)
is set forth in the Plan Supplement, as an executory contract or unexpired lease
to be assumed and assigned upon the consummation of the LSP Sale and/or
Thistledown Sale; provided, however, that, MID
shall have fifteen (15) days from after the Effective Date to file an amended
Assumption Schedule. This Order shall constitute an order of the
Bankruptcy Court under sections 365 and 1123(b) of the Bankruptcy Code approving
the contract and lease assumptions or rejections described above, as of the
Effective Date or upon the consummation of the LSP Sale and/or Thistledown Sale,
as applicable.
23. Objection to Cure Amounts;
Rejection Damage Claims. In the event of a dispute
regarding (a) the amount of any cure payment, (b) the ability of MID Transferee
to provide “adequate assurance of future performance” (within the meaning of
section 365 of the Bankruptcy Code) under the contract or lease to be assumed or
(c) any other matter pertaining to
34
assumption
arises, such matters shall be subject to the jurisdiction of the
Bankruptcy Court and made following the entry of a Final Order resolving such
dispute; provided, however, that any
objections to the cure amount listed on the Assumption Schedule must be filed by
the later of (i) thirty (30) days after any amendment to the
Assumption Schedule has been filed or (ii) thirty (30) days after the Effective
Date. With respect to the executory contracts and unexpired leases
that will be assumed and assigned upon the consummation of the LSP Sale and/or
the Thistledown Sale, any objections to cure amounts, must be in writing and
filed with the Court and served on the Reorganized Debtors Plan Administrator no
later than thirty (30) days after the Effective Date. If the
rejection of an executory contract or unexpired lease by the Debtors under the
Plan results in damages to the other party or parties to such contract or lease,
any claim for such damages, if not heretofore evidenced by a proof of claim,
shall be forever barred and shall not be enforceable against the Debtors or its
properties or agents, successors or assigns, unless a proof of claim is filed
with this Court and served upon the Reorganized Debtors Plan Administrator on or
before thirty (30) days after the later to occur of (a) the filing of any
amendment to the Assumption Schedule and (b) the date of entry of an order
(which may be this Order) by this Court authorizing the rejection of such
executory contract or unexpired lease.
24. No Amendments to Proofs of
Claim. Except as otherwise set forth in Section 26.4 of the
Plan, after the Confirmation Date, a proof of claim may not be filed or amended
without the authority of the Bankruptcy Court.
25. Conditions to Effective
Date. The Plan shall not become effective unless and until the
conditions set forth in Section 29.1 of the Plan have been satisfied or waived
pursuant to Section 29.2 of the Plan.
35
26. Funding of MEC Lone Star
Proceeds. Until the LSP Sale is consummated and the Creditor
LSP Sale Proceeds and MID LSP Sale Proceeds are distributed in accordance with
the provisions of the Plan, the Disbursing Agent, through the use of Creditor
Cash and funds from MID US Financing, shall fund one hundred percent (100%) of
the costs and expenses incurred by MEC Lone Star in connection with the
operations of MEC Lone Star on a pro rata basis based upon the Creditor LSP Sale
Proceeds and MID LSP Sale Proceeds. Notwithstanding the non-issuance
of Reorganized MEC Lone Star Stock until the consummation of the LSP Sale, the
respective interests of MID Transferee and holders of Allowed Non-MJC General
Unsecured Claims in the LSP Sale shall be preserved.
27. Reorganized Gulfstream Park
Racing Escrow. Notwithstanding any provision in the Plan or
the Confirmation Order, on the Effective Date, the Reorganized Gulfstream Park
Racing Stock shall be issued for the benefit of MID Transferee, and placed into
escrow, to be held by an escrow agent acceptable to MID Transferee and the
Florida Dept., such escrow agent to be located in Florida and possessing a
pari-mutuel license, such costs for the escrow agent to be borne by the MID
Transferee, and subject to the terms of an escrow agreement acceptable to MID
Transferee and the Florida Dept. Notwithstanding any provision in the
Plan or the Confirmation Order, provided the MID Transferee is the proposed
recipient of shares of Reorganized Gulfstream Park Racing Stock and the permits
and licenses are retained by Gulfstream Park Racing Association, the Florida
Dept. shall undertake regulatory suitability review of MID Transferee pursuant
to sections 550.1815 and 551.104(4)(d) of the Florida
Statutes. Following the completion of the suitability review and
consistent with the terms of the escrow agreement, the Florida Dept. shall
either issue an order allowing the transfer of the stock to the MID Transferee
in the event suitability is determined, or if found the MID Transferee
is
36
deemed
unsuitable, the Florida Dept. shall initiate divestiture proceedings consistent
with Section 550.1815, Florida Statutes. During the period that the
Reorganized Gulfstream Park Racing Stock is in escrow, notwithstanding any
provision in the Plan or Confirmation Order, the resolution of any regulatory
matters relating to Gulfstream Park Racing Association and its various
pari-mutuel, cardroom or slot machine licenses and the enforcement of state
rules and laws governing the same shall be subject to the exclusive jurisdiction
of the civil, criminal and administrative courts of the State of Florida and, to
the extent a circumstance giving rise to an enforcement action occurs after the
Effective Date of the Plan, any such rights of that the State of Florida or the
Florida Dept. may have therein are not enjoined nor waived and Gulfstream Park
Racing Association Inc. is not released or
discharged. Nothing herein precludes the Florida Dept.
from filing an Administrative Claim, as defined in the Plan.
28. Administrative Claim Bar
Date. The last day to file proof of Administrative Expense
Claims is thirty (30) days from the Effective Date, after which date, any proof
of Administrative Expense Claim not filed with this Court shall be deemed
forever barred and the Debtors, the Reorganized Debtors, MID and MID Islandi
shall have no obligation with respect thereto; provided, however, that no
proof of Administrative Expense Claim shall be required to be filed if such
Administrative Expense Claim shall have been incurred in accordance with an
order of this Court or with the consent of the Debtors and in the ordinary
course of the Debtors’ operations; provided, further, that,
notwithstanding the foregoing, the professionals for the Debtors and the
Creditors’ Committee shall have until ninety (90) days following the Effective
Date to submit Final Fee Applications.
29. Professional
Compensation. Except as provided in Section 35.12 of the Plan,
all entities seeking awards by the Court of compensation for services rendered
or
37
reimbursement
of expenses incurred through and including the Effective Date under sections
330, 331, 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code
shall (a) file, on or before the date that is ninety (90) days after the
Effective Date their respective applications for final allowances of
compensation for services rendered and reimbursement of expenses incurred (a
“Final Fee
Application”) and (b) be paid in full, in Cash, in such amounts as are
Allowed by the Court in accordance with the order relating to or Allowing any
such Administrative Expense Claim. Notice of a hearing (the “Final Fee Hearing”)
on the Final Fee Applications shall be provided in accordance with the
Bankruptcy Rules and Local Rules. The Reorganized Debtors are
authorized to pay compensation for professional services rendered and
reimbursement of expenses incurred after the Confirmation Date in the ordinary
course and without the need for Bankruptcy Court approval.
30. Objections to Final Fee
Applications. All objections to any Final Fee Application
shall be filed with the Court, together with proof of service thereof, and
served upon the applicant and the Notice Parties, so as to be received not later
than 4:00 p.m., prevailing Eastern Time, on the date that is five (5) Business
Days prior to the Final Fee Hearing.
31. Administrative
Expenses. Administrative expenses incurred by the Debtors or
the Reorganized Debtors after the Effective Date, including Claims for
professionals’ fees and expenses, shall not be subject to an application and may
be paid by the Debtors or the Reorganized Debtors, as the case may be, in the
ordinary course of business and without further Bankruptcy Court
approval.
32. Discharge. As
of the Effective Date, the confirmation of the Plan shall (i) pursuant to
Section 34.1 of the Plan and except as otherwise provided in the Plan, discharge
and release all Claims against, or Equity Interests, in the Debtors of any
nature whatsoever,
38
known or
unknown, including any interest accrued or expenses incurred thereon, from and
after the Petition Date, or against their estates or properties or interests in
property, and except as provided otherwise in the Plan, all persons or entities
shall be precluded from asserting against the Debtors or the Reorganized Debtors
or their respective properties or interests in property, any other Claims based
upon any act or omission, transaction or other activity of any kind or nature
that occurred prior to the Effective Date and (ii) pursuant to Section 32.4
of the Plan, on the Effective Date, the 7.25% Indenture, the 7.25% Notes, the
8.55% Indenture, the 8.55% Notes and the Equity Interests in the Debtors shall
be cancelled; provided, however, the 7.25%
Indenture and the 8.55% Indenture shall continue in effect solely for the
purpose of (i) allowing the holders of the Allowed 8.55% Note Claims
and Allowed 7.25% Note Claims to receive their distributions under the Plan and
(ii) permitting the Indenture Trustee to maintain any rights or Liens it may
have for fees, costs and expenses under the 7.25% Indenture and the 8.55%
Indenture which such rights or Liens shall only be satisfied from Creditor
Cash. Pursuant to Section 23.8(b) of the Plan, to the extent that the
MID Litigation Consideration is insufficient to compensate the reasonable fees
and expenses of the Indenture Trustee, the Indenture Trustee shall be paid in
Cash on the Effective Date from the distributions otherwise allocable to holders
of record of Allowed 8.55% Note Claims and Allowed 7.25% Note
Claims.
33. Releases by the
Debtors. Except for the right to enforce the Plan or otherwise
expressly provided in the Plan, on the Effective Date, for good and valuable
consideration, to the fullest extent permissible under applicable law, each of
the Debtors and the Reorganized Debtors, on its own behalf and as representative
of its respective estate, and each of its respective Related Persons, shall, and
shall be deemed to, completely and forever release, waive, void, extinguish and
discharge unconditionally, each and all Released Parties of and
from
39
any and
all Claims, any and all other obligations, suits, judgments, damages, debts
owing, causes of action, rights, liabilities of any nature whatsoever and
remedies of the Debtors’ estates, whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then
existing or thereafter arising, in law, equity or otherwise, against the
Released Parties arising from or relating to the period prior to the Effective
Date, including any act, omission or transaction in connection with the Chapter
11 Cases, the Plan, the Disclosure Statement, the Plan Support Agreement, the
Committee Litigation and the settlement thereof, that may be asserted by or on
behalf of the Debtors or the Reorganized Debtors or their respective
estates.
34. Voluntary Releases by
Holders of Claims. Except for the right to enforce the Plan
and the Settlement, and as otherwise expressly provided in the Plan, on the
Effective Date, for good and valuable consideration, to the fullest extent
permissible under applicable law, each Person that has held, currently holds or
may hold a Claim or any other obligation, suit, judgment, debt, right, remedy,
cause of action or liability of any nature whatsoever, that submitted a Ballot
or opt out notice, but did not elect to opt out of the releases contained in
this paragraph by marking the appropriate box on the Ballot or opt out notice,
as applicable, and each of their Related Persons, shall, and shall be deemed to,
completely and forever release, waive, void, extinguish and discharge
unconditionally each and all of the Released Parties from any and all Claims,
any and all other obligations, suits, judgments, damages, debts, rights,
remedies, causes of action and liabilities of on account of, in connection with,
or in any way related to such Claim (including, without limitation, those
arising under the Bankruptcy Code), whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown, foreseen or unforeseen, then
existing or thereafter arising, in law, equity (including any claim
40
based on
any equitable remedy, including the imposition of a trust) or otherwise that are
or may be based in whole or part on any act, omission, transaction, event or
other circumstance taking place or existing on or prior to the Effective Date
(including prior to the Petition Date) in connection with or related to any of
the Debtors, the Reorganized Debtors or their respective assets, property and
estates, the Chapter 11 Cases or the Plan, the Disclosure Statement, or the Plan
Support Agreement, including the matters asserted in the Committee Litigation
and the settlement thereof.
35. Shared Insurance
Policies. Nothing contained in Sections 35.5 and 35.6 of the
Plan shall limit or impair any rights of the Debtors, Reorganized Debtors or MID
Transferee to take any action with respect to any of or all the Shared Insurance
Policies.
36. Release and Exculpation
Provisions. All release and exculpation provisions embodied in
the Plan, including but not limited to those contained in Article XXXV of the
Plan, are (i) integral parts of the Plan, (ii) fair, equitable and reasonable,
(iii) given for valuable and substantial consideration, (iv) justified by the
extraordinary circumstances of the case, (v) supported by the overwhelming vote
of creditors in the Classes entitled to vote and (vi) are in the best interest
of the Debtors and all parties in interest, and such provisions are approved and
shall be effective and binding on all persons and entities, to the extent
provided herein.
37. Term of Injunctions or
Stays. Pursuant to Section 35.2 of the Plan, all Persons or
Entities, and each Related Person of such Persons or Entities, who have held,
hold or may hold Claims or any other debt or liability that is discharged or
Equity Interests or other right of equity interest that is terminated or
cancelled pursuant to the Plan, or who have held, hold or may hold Claims or any
other debt or liability that is discharged or released pursuant to Sections 35.1
and 35.5 of the Plan, respectively, are permanently enjoined, from and after the
Effective
41
Date,
from (a) commencing or continuing, directly or indirectly, in any manner, any
action or other proceeding (including, without limitation, any judicial,
arbitral, administrative or other proceeding) of any kind on any such Claim or
other debt or liability or Equity Interest that is terminated or cancelled
pursuant to the Plan against the Debtors, the Debtors in Possession or the
Reorganized Debtors, the Debtors’ estates, or their respective properties,
assets or interests in properties, MID Transferee or its respective properties,
assets or interests in properties, (b) the enforcement, attachment, collection
or recovery by any manner or means of any judgment, award, decree or order
against the Debtors, the Debtors in Possession or the Reorganized Debtors, the
Debtors’ estates, MID Transferee or their respective properties or interests in
properties, (c) creating, perfecting, or enforcing any encumbrance of any kind
against the Debtors, the Debtors in Possession or the Reorganized Debtors, the
Debtors’ estates, or their respective properties, assets or interests in
properties, MID Transferee or its respective properties, assets or interests in
properties, and (d) except to the extent provided, permitted or preserved by
sections 553, 555, 556, 559 or 560 of the Bankruptcy Code or pursuant to the
common law right of recoupment, asserting any right of setoff, subrogation or
recoupment of any kind against any obligation due from the Debtors, the Debtors
in Possession or the Reorganized Debtors, or against their respective property
or interests in property, or MID Transferee or its respective properties, assets
or interests in properties, with respect to any such Claim or other debt or
liability that is discharged or Equity Interest or other right of equity
interest that is terminated or cancelled pursuant to the Plan; provided, however, that such
injunction shall not preclude the United States of America, any state or any of
their respective police or regulatory agencies from enforcing their police or
regulatory powers; provided, further, that, except
in connection with a properly filed proof of claim, the foregoing proviso does
not permit the United
42
States of
America, any State or any of their respective police or regulatory agencies from
obtaining any monetary recovery from the Debtors, the Debtors in Possession or
the Reorganized Debtors or their respective property or interests in property
with respect to any such Claim or other debt or liability that is discharged or
Equity Interest or other right of equity interest that is terminated or
cancelled pursuant to the Plan, including, without limitation, any monetary
claim or penalty in furtherance of a police or regulatory power. Such
injunction shall extend to all successors of the Debtors and Debtors in
Possession, and their respective properties and interests in
property. Notwithstanding anything to the contrary, including,
without limitation, the terms of Article XXXV of the Plan, the Plan shall not
limit or impair any defenses (including, but not limited to, any rights of
setoff preserved or permitted under the Bankruptcy Code or rights of recoupment
under applicable law) that have been asserted. Further, pursuant to
Section 35.6 of the Plan, as of the Effective Date, all Entities that hold, have
held, or may hold a Claim or any other obligation, suit, judgment, debt, right,
remedy, cause of action or liability of any nature whatsoever relating to any of
the Debtors or the Reorganized Debtors or any of their respective assets,
property and Estates, that is released pursuant to Section 35.5 of the Plan and
each of the Related Persons of each of the foregoing entities, are, and shall
be, permanently, forever and completely stayed, restrained, prohibited, barred
and enjoined from taking any of the following actions, whether directly or
indirectly, derivatively or otherwise, on account of or based on the subject
matter of such discharged Claims or other obligations, suits, judgments,
damages, debts, rights, remedies, causes of action or liabilities: (i)
commencing, conducting or continuing in any manner, directly or indirectly, any
suit, action or other proceeding (including, without limitation, any judicial,
arbitral, administrative or other proceeding) in any forum; (ii) enforcing,
attaching (including, without limitation, any prejudgment attachment),
collecting, or in any way seeking to
43
recover
any judgment, award, decree, or other order; (iii) creating, perfecting or in
any way enforcing in any matter, directly or indirectly, any Lien; (iv) setting
off, seeking reimbursement or contributions from, or subrogation against, or
otherwise recouping in any manner, directly or indirectly, any amount against
any liability or obligation owed to any Entity released under Section 35.5 of
the Plan; and (v) commencing or continuing in any manner, in any place of any
judicial, arbitration or administrative proceeding in any forum, that does not
comply with or is inconsistent with the provisions of the Plan or the
Confirmation Order; provided, that this provision shall not apply to the rights
of the Debtors, Reorganized Debtors or MID Transferee to take any action with
respect to any of or all the Shared Insurance Policies.
38. Indemnification
Obligations.
(a) Pursuant
to Section 26.5 of the Plan, (i) the obligations of the Debtors to indemnify and
reimburse their directors or officers that were directors or officers,
respectively, on or prior to the Petition Date, including, with respect to W.
Thomas Hodgson, the obligations of the Debtors to indemnify W. Thomas Hodgson
pursuant to the Consulting Agreement, dated August 7, 2007, between W. Thomas
Hodgson and Magna Entertainment, shall be assumed by the Reorganized Debtors and
MID and (ii) indemnification obligations of the Debtors arising from services as
officers and directors during the period from and after the Petition Date shall
be Administrative Expense Claims to the extent previously authorized by a Final
Order. Nothing in the foregoing shall in any way limit the Debtors’
indemnification of the Individual Defendants for their liability in connection
with the Individual Defendant Claims as set forth in Article II of the
Plan.
39. Payment of Statutory
Fees. All fees payable pursuant to section 1930 of title 28 of
the United States Code, shall be paid as and when due or otherwise pursuant to
an
44
agreement
between the Reorganized Debtors and the United States Department of Justice,
Office of the United States Trustee, until such time as a chapter 11 case for a
Debtor shall be closed and each Debtor shall pay any such fees as if no
substantive consolidation has occurred for purposes of the Plan.
40. Intercompany
Claims. On or after the Effective Date, all Intercompany
Claims shall be either (i) discharged and extinguished, in which case such
discharged and extinguished portion shall be eliminated and the holders thereof
shall not be entitled to, and shall not receive or retain, any property or
interest on account of such portion under the Plan, or (ii) contributed to
capital, distributed, transferred, setoff or subject to any other arrangement,
as determined by the Debtors and MID. Pursuant to section 1126(f) and
1126(g) of the Bankruptcy Code, the holders of Intercompany Claims against the
Debtors are not entitled to vote to accept or reject the Plan.
41. Treatment of Allowed AmTote
International, Inc. Claims (Class 9). Holders of Claims
in Class 9 shall receive an additional distribution (the “Additional
Distribution”) such that the total recovery of holders of
Claims in Class 9 will be, in the aggregate and on a numerical
basis, twenty-nine percent (29%) higher than the recovery of holders
of other Allowed Non-MJC General Unsecured Claims, when expressing the
recovery of such holders as a percentage. Such amount shall be an
additional amount in excess of what such holders are otherwise entitled to
receive pursuant to the Plan as holders of Allowed Non-MJC General
Unsecured Claims (after determining the amount of such distributions
without regard to the Additional Distribution). The Additional
Distribution shall be funded fifty percent (50%) from Creditor Cash and
fifty percent (50%) from MID Transferee and paid, to the extent each Claim
is allowed, at the time of the initial distribution pursuant to the Plan;
provided, however,
45
that, to the extent the amount of Allowed Claims in Class 9 are, in the aggregate, less than $1.4 million, the amount of unpaid distributions will be returned fifty percent (50%) to MID Transferee and fifty percent (50%) to Creditor Cash.
42. Treatment of Allowed General
Liability Insured Litigation Claims (Class
35). Notwithstanding the treatment provided for Allowed
General Liability Insured Litigation Claims in Section 15.2 of the Plan, Insured
Litigation Claims shall receive the following treatment: unless otherwise
mutually agreed upon by the holder of an Allowed General Liability Insured
Litigation Claim and the Debtors or the Reorganized Debtors, as the case may be,
each holder of an Allowed General Liability Insured Litigation Claim shall be
entitled, in full satisfaction, settlement, release, and discharge of, and in
exchange for such Allowed General Liability Insured Litigation Claim, to proceed
with the liquidation of such Claim, including any litigation pending as of the
Petition Date and seek recovery from the applicable General Liability Insurance
Carrier; provided, however, that, upon
the settlement or resolution of the litigation underlying the Allowed General
Liability Insured Litigation Claim, the holder of such Claim will be treated as
a Non-MJC General Unsecured Claim or a MJC General Unsecured Claim, as
applicable, to the extent any such settlement or judgment is not covered by
insurance.
43. Treatment of MEC Lone Star
Stock (Class 56). Notwithstanding the provision for treatment
of MEC Lone Star Stock in Section 17.20 of the Plan, MEC Lone Star shall receive
the following treatment: (a) on the date the LSP Sale is consummated, MEC Lone
Star Stock shall be cancelled and the holder of MEC Lone Star Stock shall not be
entitled to, and shall not receive or retain any property or interest in
property under the Plan or (b) in the event that the LSP Sale has not been
consummated, and upon the necessary approval of the Texas Racing Commission, the
Reorganized MEC Lone Star Stock shall be issued and distributed to
46
the
Reorganized Debtors Plan Administrator to be held subject to the interests of
holders of Non-MJC General Unsecured Claims and MID (or its designee) in the LSP
Sale.
44. Zurich
Claims. Notwithstanding anything contained in the Plan or in
this Order to the contrary, nothing herein shall affect, limit or impact the
rights of Zurich American Insurance Company and its affiliates (“Zurich”) to collect
any amounts that may be owed to it by MID or by any other non-debtor additional
named insureds under any policies issued by Zurich to the Debtors.
45. Dallas County
Claim. In full satisfaction, settlement, release and discharge
of its Claim, Dallas County will have an Allowed Secured Claim in the amount of
$31,148.47, which will be paid on the Effective Date.
46. Estimation of
Claims. Pursuant to Section 19.2 of the Plan, the Reorganized
Debtors Plan Administrator, upon consultation with the Creditors’ Committee and
MID US Financing, may at any time request the Bankruptcy Court to estimate for
final distribution purposes any contingent or unliquidated claim pursuant to
section 502(c) of the Bankruptcy Code regardless of whether the Debtors or the
Reorganized Debtors previously objected to such Claim, and the Bankruptcy Court
will retain jurisdiction to consider any request to estimate any Claim at any
time during litigation concerning any objection to any Claim, including, without
limitation, during the pendency of any appeal relating to any such
objection.
47. IRS
Claims. Notwithstanding any provision to the contrary in the
Plan, this Order or any documents related to the Plan (the “Documents”) nothing
shall: (1) affect the ability of the IRS to pursue any non-debtors, to the
extent allowed by non-bankruptcy law, for any liabilities that may be related to
any federal tax liabilities owed by the Debtors; (2) discharge any claim as
described in section 1141(d)(6) of the Bankruptcy Code; (3) require the IRS to
file a
47
claim for post-petition expenses described in 11 U.S.C. 503(b)(1)(D); or (4) require the IRS to pay any refunds to any person or entity other than the person or entity entitled to such refund under non-bankruptcy law. To the extent any allowed IRS Priority Tax Claims are not paid in full, in cash on the Effective Date, the allowed IRS Priority Tax Claims shall be paid in no less frequent than equal quarterly payments over a five-year period commencing on the Effective Date with interest to accrue at the rate and method set forth in 26 U.S.C. 6621 and 6622. Moreover, the Debtors and the Reorganized Debtors agree that: (1) they will timely file or cause to be filed all required federal tax returns; (2) the IRS is not bound by any characterizations, for tax purposes, of any transactions or any Entity as set forth in the Documents; and (3) the IRS is not bound, for tax purposes, by the valuation of any property either set forth in the Documents or required to be made pursuant to the Documents; (4) the IRS is not bound by any provision of the Documents allocating any distributions on account of its claims or administrative expenses between principal and interest; and (5) they shall otherwise comply with the provisions of the Internal Revenue Code.
48. Compliance with Tax
Requirements. In connection with the Plan and all instruments
issued in connection therewith and distributed thereunder, any party issuing any
instruments or making any distribution under the Plan shall comply with all
applicable withholding and reporting requirements imposed by any federal, state
or local taxing authority, and all distributions under the Plan shall be subject
to any withholding or reporting requirements. Notwithstanding the
above, each holder of an Allowed Claim that is to receive a distribution under
the Plan shall have the sole and exclusive responsibility for the satisfaction
and payment of any tax obligations imposed by any governmental unit, including
income, withholding and other tax obligations, on account of such
distribution. Any party issuing any instruments or
making
48
any
distribution under the Plan has the right, but not the obligation, to not make a
distribution until such holder has made arrangements satisfactory to such
issuing or distributing party for payment of any such tax
obligations.
49. Exemption from Transfer
Taxes. Pursuant to section 1146(a) of the Bankruptcy
Code, the issuance, transfer or exchange of assets, notes or equity securities
(including issuance of warrants) under or in connection with the Plan, the
creation of any mortgage, deed of trust or other security interest, the making
or assignment of any lease or sublease, or the making or delivery of any deed or
other instrument of transfer under, in furtherance of, or in connection with the
Plan, shall not be subject to any stamp, real estate transfer, mortgage
recording or other similar tax. All sale transactions and other
transactions under the Plan, including, without limitation, the transfers to be
made in accordance with the provisions of Section 6.1 of the Plan, or
transactions consummated by the Debtors and approved by the Bankruptcy Court on
and after the Petition Date through and including the Effective Date are hereby
deemed to have been made under, in furtherance of, or in connection with the
Plan and, thus, shall not be subject to any stamp, real estate transfer,
mortgage recording, or other similar tax.
50. Pension
Plans. From and after the Effective Date, pursuant to section
1129(a)(13) of the Bankruptcy Code, the MID Transferee shall assume and pay all
retiree benefits (within the meaning of section 1114 of the Bankruptcy Code) and
contribute to the Pension Plans the amount necessary to satisfy the minimum
funding standards under sections 302 and 303 of ERISA, 29 U.S.C. §§ 1082
and 1083, and sections 412 and 430 of the Internal Revenue Code, 26 U.S.C. §§
412 and 430, if any, relating to the Pension Plans, at the level established in
accordance with subsection (e)(1)(B) or (g) of section 1114 of the
Bankruptcy
49
Code, at
any time prior to the Confirmation Date, and for the duration of the period
during which the Debtors have obligated themselves to provide such benefits;
provided, however, that the
Reorganized Debtors may modify such benefits to the extent permitted by
applicable law. Nothing in the Plan shall be construed as
discharging, releasing, or relieving Debtors, or their successors, including the
Reorganized Debtors, the Released Parties or any party, in any capacity, from
any liability, including withdrawal liability, imposed under any law or
regulatory provision with respect to the Pension Plans or the Pension Benefit
Guaranty Corporation (“PBGC”). PBGC and the Pension Plans
will not be enjoined or precluded from enforcing such liability as a result of
any provision of the Plan.
51. Disbursing
Agent. The Disbursing Agent as designated by the Debtors, in
consultation with MID and the Creditors’ Committee, shall be William G.
Ford.
52. Documents, Mortgages, and
Instruments. Each federal, state, commonwealth, local,
foreign, or other governmental agency is hereby authorized to accept any and all
documents, mortgages, and instruments necessary or appropriate to effectuate,
implement or consummate the transactions contemplated by the Plan and this
Order.
53. Reversal/Stay/Modification/Vacatur
of Order. Except as otherwise provided in this Order, if any
or all of the provisions of this Order are hereafter reversed, modified,
vacated, or stayed by subsequent order of this Court, or any other court, such
reversal, stay, modification or vacatur shall not affect the validity or
enforceability of any act, obligation, indebtedness, liability, priority, or
lien incurred or undertaken by the Debtors or the Reorganized Debtors, as
applicable, prior to the effective date of such reversal, stay, modification, or
vacatur. Notwithstanding any such reversal, stay, modification, or
vacatur of this Order, any such act or obligation incurred or undertaken
pursuant to, or in reliance on, this Order prior to the effective
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date of
such reversal, stay, modification, or vacatur shall be governed in all respects
by the provisions of this Order and the Prepackaged Plans or any amendments or
modifications thereto.
54. Retention of
Jurisdiction. Notwithstanding the entry of this Order or the
occurrence of the Effective Date, pursuant to sections 105 and 1142 of the
Bankruptcy Code, this Court, except as otherwise provided in the Plan or herein,
shall retain exclusive jurisdiction over all matters arising out of, and related
to, the Reorganization Cases to the fullest extent as is legally permissible,
including, but not limited to, jurisdiction over the matters set forth in
Article XXX of the Plan.
55. Conflicts Between Order and
Plan. The provisions of the Plan and this Order shall be construed
in a manner consistent with each other so as to effect the purpose of each;
provided, however, that, if
there is determined to be any inconsistency between any Plan provision and any
provision of this Order that cannot be so reconciled, then solely to the extent
of such inconsistency, the provisions of this Order shall govern and any
provision of this Order shall be deemed a modification of the Plan and shall
control and take precedence.
56. Modifications. Without
need for further order or authorization of the Court, the Debtors or the
Reorganized Debtors, subject to the consent of the Creditors’ Committee and MID,
are authorized and empowered to make any and all modifications to the Plan, any
and all documents included as part of the Plan Supplement, and any other
document that is necessary to effectuate the Plan that does not materially
modify the terms of such documents and are consistent with the
Plan.
57. 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.
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58. Governing
Law. Except to the extent that the Bankruptcy Code or other
federal law is applicable, or to the extent an Exhibit to the Plan or Plan
Supplement provides otherwise (in which case the governing law specified therein
shall be applicable to such Exhibit), the rights, duties and obligations arising
under the Plan shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware without giving effect to the principles
of conflict of laws.
59. Applicable Nonbankruptcy
Law. Pursuant to section 1123(a) and 1142(a) of the Bankruptcy
Code, the provisions of this Order, the Plan and related documents or any
amendments or modifications thereto shall apply and be enforceable
notwithstanding any otherwise applicable nonbankruptcy law.
60. Waiver of
Filings. Any requirement under section 521 of the Bankruptcy
Code or Bankruptcy Rule 1007 obligating the Debtors to file any list, schedule,
or statement with the Court or the Office of the U.S. Trustee (except for
monthly operating reports or any other post-confirmation reporting obligation to
the U.S. Trustee), is hereby waived as to any such list, schedule, or statement
not filed as of the Effective Date.
61. Police
Powers. Nothing contained in the Plan or this Order shall
preclude the United States of America, any state or any of their respective
police or regulatory agencies or the Mayor & City Council of Baltimore from
enforcing their statutory, police or regulatory powers.
62. Maryland/Settlement
Agreement. The Settlement Agreement is hereby
approved. The Parties shall execute the Settlement Agreement upon
entry of this Order provided that the Parties will not be bound by the terms of
the Settlement Agreement if the Transfer, as defined in the Settlement
Agreement, does not occur or the Transfer of the stock and/or assets
of
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Laurel
Racing Assoc., Inc., Pimlico Racing Association, Inc., Laurel Racing Association
Limited Partnership, Maryland Jockey Club, Inc., Prince George's Racing,
Inc., Southern Maryland Agricultural Association, Southern Maryland Racing,
Inc. and/or The Maryland Jockey Club of Baltimore City, Inc. is proposed to be
made to a party different than MID US Financing. The State of
Maryland shall not be enjoined from enforcing the Settlement Agreement against
the MID Parties, as defined in the Settlement Agreement, notwithstanding any
injunctions, releases or similar language contained in the Plan or this
Order. Execution of the Settlement Agreement is a condition precedent
to the Effective Date of the Plan and the transfer of the Preakness
Stakes.
63. Notice of
Order. In accordance with Bankruptcy Rules 2002 and 3020(c),
as soon as reasonably practicable after the Effective Date, the Debtors shall
serve notice of the entry of this Order, substantially in the form annexed
hereto as Exhibit “D,” to all parties who hold a Claim or Equity Interest in
these cases, including the Creditors’ Committee and U.S.
Trustee. Such notice is hereby approved in all respects and shall be
deemed good and sufficient notice of entry of this Order.
64. Substantial
Consummation. On the Effective Date, the Plan shall be deemed
to be substantially consummated under sections 1101 and 1127 of the Bankruptcy
Code.
65. Committee Litigation.
On the Effective Date, the Committee Litigation shall be dismissed with
prejudice. Without further action, the entry of this Order shall serve as
notice pursuant to paragraph 23 of the Stipulation and Protective Order entered
in the Committee Litigation of a request by the Plan Proponents for the
return or destruction of all Adversary Proceeding Materials as that term is
defined in the Stipulation and Protective Order. All parties
53
to the
Plan shall be deemed to have received such request upon entry of this Order and
shall be bound to the terms of Paragraph 23 of the Stipulation and Protective
Order.
66. PNC
Claim. Until the entire amount of the Allowed PNC Claim
has been paid in full on the Effective Date, the Debtors shall continue to
tender monthly payments to PNC Bank, in immediately available funds, equal to
the monthly payments called for in the DIP Orders previously entered in the
Debtors’ Chapter 11 cases.
67. FC Gulfstream
Park. Notwithstanding anything in the Plan, this Order, or the
Assumption Schedule (as may be amended) filed by the Debtors regarding cure
amounts, the Debtors, MID and FC Gulfstream Park, Inc. agree that the cure
amount relating to assumption of agreements relating to The Village at
Gulfstream Park is $1,557,863.00 as of April 20, 2010, which amount shall
be paid to FC Gulfstream Park, Inc., in full and in immediately available funds,
on the earlier of (i) 25 days after the Effective Date of the Plan or (ii) May
30, 2010 (the “Cure
Payment Date”). To the extent additional cure amounts accrue
after April 20, 2010 and prior to the Effective Date, such amounts will also be
paid on the Cure Payment Date.
68. Santa Anita Associates LLC
et al. Notwithstanding anything to the contrary in the Plan or this
Order, as a result of its election to opt out of the releases in the Ballot, no
release contained in the Plan and the related injunctions shall bind or apply to
Santa Anita Associates, LLC, Santa Anita Associates Holding Co. LLC and any of
their respective Related Persons (collectively, “Santa Anita
Parties”). In addition, PPE Casino Resorts Maryland, LLC and
The Cordish Company and their affiliates (jointly, “Cordish”), which were
not entities entitled to vote on the Plan and received no Ballots, also shall
not be bound or subject to the releases contained in the Plan or the related
injunctions, and neither the discharge provisions in the Plan or this Order nor
the related injunctions shall apply to any claims, obligations,
suits,
54
judgments,
damages, debts, rights, remedies, causes of action or liabilities of any nature
whatsoever of the Santa Anita Parties or Cordish against any person or entity
other than the Debtors.
69. Equity Interests in
MID. Notwithstanding anything to the contrary in the Plan or
this Confirmation Order, the releases, discharges, injunctions and exculpation
provisions contained in the Plan and this Confirmation Order, and the findings
of fact and conclusions of law made pursuant to this Confirmation Order,
including, but not limited to, those contained in Paragraphs N, Q, HH, KK and
MM, shall not bind or apply to any holder of an equity interest in MID in such
holder’s capacity as a holder of such equity interest in MID; provided further that the
releases, discharges, injunctions and exculpation provisions contained in the
Plan and this Confirmation Order shall not be effective with respect to any and
all claims, any and all other obligations, suits, judgments, damages, debts,
rights, remedies, causes of action and liabilities of on account of, in
connection with, or in any way related to such claims (including, without
limitation, those arising under the Bankruptcy Code) arising on or after the
Effective Date.
70. Waiver of
Stay. The effectiveness of this Order is stayed until 5:00
p.m. (Eastern time) on April 30, 2010 and any further stay of this Order
provided by any Bankruptcy Rule (including Bankruptcy Rule 3020(e)), whether for
fourteen (14) days or otherwise, is hereby waived, and this Order shall be
effective and enforceable at such time.
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71. No
Waiver. The failure to specifically include any particular
provision of the Plan in this Order will not diminish the effectiveness of such
provision nor constitute a waiver thereof, it being the intent of this Court
that the Plan is confirmed in their entirety and incorporated herein by this
reference.
Dated: April
_____, 2010
Wilmington, Delaware
______________________________________
THE
HONORABLE MARY F. WALRATH
UNITED
STATES BANKRUPTCY JUDGE
56
Exhibit
A
The
Plan
Exhibit
B
Settlement
Agreement
Exhibit
C
Option
Election Notice
Exhibit
D
Notice