17. The Disclosure Statement contains adequate information in accordance with section 1125 of the Bankruptcy Code and is APPROVED.
18. The Disclosure Statement (including all applicable exhibits thereto) provides sufficient notice of the proposed injunction, exculpation, and release provisions contained
9 in Sections 10.5, 10.6, 10.7, 10.8, and 10.9 of the Amended Plan, in accordance with Bankruptcy Rule 3016(c).
19. The form and manner of service of the Disclosure Statement Notice complies with all applicable Bankruptcy Rules and Local Rules and no further notice is necessary.
20. All objections, if any, to the Disclosure Statement, the Motion, or any of the procedures or exhibits referenced therein that have not been withdrawn or resolved as provided for in the record of the Disclosure Statement Hearing are overruled.
Creditors’ Committee Settlement
21. The Amended Plan incorporates the terms of a settlement with the Creditors’ Committee regarding the treatment of holders of General Unsecured Claims which resolves the Committee’s potential challenge rights under the DIP Order, as more fully set forth in the Disclosure Statement. In order to implement the Creditors’ Committee Settlement through the Amended Plan, the deadline for the Creditors’ Committee to commence a challenge with respect to the Committee Investigation Matters, shall be tolled until the entry of the Confirmation Order.4
22. If, for any reason, the Bankruptcy Court does not enter the Confirmation Order incorporating the terms of the Creditors’ Committee Settlement (unless otherwise extended by agreement of the Creditors’ Committee, the Debtors, and the Consenting Creditors): (i) the Creditors’ Committee Settlement shall be deemed terminated and the parties shall return to the positions they each held immediately prior to the entry into the Creditors’ Committee Settlement,
4 Committee Investigation Matters shall have the meaning ascribed to such term in the Order (I) Authorizing the Debtors to (A) Obtain Postpetition Financing, (B) Grant Senior Secured Liens and Superpriority Administrative Expense Claims, and (C) Utilize Cash Collateral; (II) Granting Adequate Protection to the Prepetition Secured Parties; and (III) Granting Related Relief [Docket No. 1118] (the “DIP Order”).
10 and (ii) the Creditors’ Committee shall have five (5) Business Days to commence a challenge with respect to Committee Investigation Matters.
Solicitation Procedures Parties Entitled to Vote
23. Pursuant to the Amended Plan, the following classes are Impaired but entitled to receive distributions under the Amended Plan and, thus, may vote to accept or reject the Amended Plan, subject to certain exceptions discussed below (collectively, the “Voting Classes”):
Voting Classes
Class Description
Class 3 First Lien Debt Claims
Class 4 Senior Unsecured Notes Claims Class 5 General Unsecured Claims
24. A creditor that holds a Claim in a Voting Class is nonetheless not entitled to vote to the extent that:
(a) as of the Voting Record Date (as defined below), the outstanding amount of such creditor’s Claim is zero ($0.00);
(b) as of the Voting Record Date, such creditor’s Claim has been disallowed, expunged, disqualified or suspended;
(c) such creditor has not filed a proof of claim in accordance with the Order (I) Establishing Deadline to File Proofs of Claim and (II) Approving Form and Manner of Notice Thereof (Docket No. 747) (the “Bar Date Order”)5 as of the Voting Record Date and the Debtors have not scheduled such creditor’s Claim or scheduled such creditor’s claim in an undetermined amount or as contingent, unliquidated, or disputed; or
5 Pursuant to the Bar Date Order, the deadline for creditors or other parties to file a proof of claim was October 1, 2020 at 5:00 p.m. (prevailing Central Time). The deadline for governmental units to file a proof of claim is December 22, 2020 at 5:00 p.m. (prevailing Central Time).
11 (d) such creditor’s Claim is subject to an objection or request for estimation as
of the Voting Record Date, subject to the procedures set forth below.
25. Pursuant to the Amended Plan, the Unimpaired Classes are conclusively presumed to accept the Amended Plan and, accordingly, are not entitled to vote on the Amended Plan.
26. Holders of Subordinated Claims and of Existing Queso Interests will receive no recovery under the Amended Plan. Such holders are deemed to reject the Amended Plan and are not entitled to vote on the Amended Plan.
27. Holders of Claims or Interests in the following classes constitute the Non-Voting Classes:
Non-Voting Classes
Class Description Impairment Acceptance / Rejection Class 1 Other Secured Claims Unimpaired Presumed to Accept Class 2 Other Priority Claims Unimpaired Presumed to Accept Class 6 Intercompany Claims Unimpaired Presumed to Accept Class 7 Subordinated Claims Impaired Deemed to Reject Class 8 Existing Queso Interests Impaired Deemed to Reject Class 9 Intercompany Interests Unimpaired Deemed to Accept
The Voting Record Date
28. The Voting Record Date shall be set as November 4, 2020. Only holders of Claims in Class 3 (First Lien Debt Claims); Class 4 (Senior Unsecured Notes Claims); and Class
12 5 (General Unsecured Claims), as of the Voting Record Date, who are otherwise eligible to vote shall be entitled to vote to accept or reject the Amended Plan.
29. The record holders of Claims shall be determined, as of the Voting Record Date, based upon the records of the Debtors and the Voting Agent. Accordingly, any notice of claim transfer received by the record holder of the Debtors’ debt securities, the Debtors, the Voting Agent, or other similarly situated registrar after the Voting Record Date shall not be recognized for purposes of voting or receipt of the Amended Plan confirmation materials.
30. With respect to transfers of Claims filed pursuant to Bankruptcy Rule 3001(e), the transferee shall be entitled to receive a Solicitation Package and, if the holder of such Claim is otherwise entitled to vote with respect to the Amended Plan, cast a Ballot on account of such Claim only if: (i) all actions necessary to transfer such Claim are completed by the Voting Record Date or (ii) the transferee files by the Voting Record Date (a) all documentation required by Bankruptcy Rule 3001(e) to evidence the transfer and (b) a sworn statement of the transferor supporting the validity of the transfer. In the event a Claim is transferred after the Voting Record Date, the transferee of such Claim shall be bound by any vote or election on the Amended Plan made by the holder of such Claim as of the Voting Record Date.
Temporary Allowance / Disallowance of Claims
31. First Lien Debt Claims. The amount of each First Lien Debt Claim for voting purposes only will be established by reference to the list of participant lenders to the First Lien Credit Agreement and those participant lenders’ corresponding First Lien Debt Claim amounts as of the Voting Record Date as reflected on the loan register maintained by the First Lien
13 Administrative Agent, which shall be provided by the First Lien Administrative Agent to the Solicitation Agent no later than one (1) Business Day following the Voting Record Date.
32. Senior Unsecured Notes Claims. The amount of each Senior Unsecured Notes Claim, for voting purposes only, shall be established by reference to the books and records of the Senior Unsecured Notes Trustee and the record listings at The Depository Trust Company (“DTC”) as of the Voting Record Date, which shall be provided by the Senior Unsecured Notes Trustee to the Solicitation Agent no later than one (1) Business Day following the Voting Record Date.
33. General Unsecured Claims (Other than Senior Unsecured Notes Claims). The amount of each General Unsecured Claim (other than Senior Unsecured Notes Claims), for voting purposes only, shall be established pursuant to the following hierarchy:
(a) If a Claim has been estimated or otherwise Allowed for voting purposes by order of this Bankruptcy Court, such Claim is temporarily Allowed in the amount so estimated or Allowed by this Bankruptcy Court;
(b) If (a) does not apply, but the Claim has been estimated or otherwise Allowed for voting purposes pursuant to a stipulation, settlement, or other agreement reached between the Debtors and the holder of the Claim, in consultation with the Creditors’ Committee (whether such stipulation, settlement, or agreement is filed or not), such Claim is temporarily Allowed in the amount set forth in the stipulation, settlement, or other agreement;
(c) If neither (a) nor (b) applies, then in the liquidated, non-contingent, and undisputed amount set forth on a proof of claim timely filed in accordance with the Bar Date Order as of the Voting Record Date, provided that if the amount set forth on a timely-submitted proof of claim is wholly unliquidated, contingent, and/or disputed, then the Claim shall be temporarily allowed for voting purposes in the amount of $1.00; and
(d) If neither (a), (b), nor (c) apply, then in the liquidated, non-contingent, and undisputed amount set forth on the Debtors’ Schedules, provided that if the Claim appearing on the Debtors’ Schedules is unliquidated, contingent, disputed, or in a $0.00 amount, then the Claim shall be disallowed for voting purposes.
14 34. If the Debtors have filed an objection to, or a request for estimation of, a Claim on or before November 30, 2020 (the “Request for Estimation Deadline”), such Claim shall be temporarily disallowed for voting purposes, except as ordered by the Bankruptcy Court before the Voting Deadline (as defined herein); provided, however, that, if the Debtors’ objection seeks only to reclassify or reduce the Allowed amount of such Claim, then such Claim is temporarily Allowed for voting purposes in the reduced amount and/or as reclassified (as applicable), except as may be ordered by this Bankruptcy Court prior to or concurrent with entry of an order confirming the Amended Plan.
35. If any creditor seeks to challenge the allowance of its Claim for voting purposes, such creditor shall file with this Bankruptcy Court a motion for an order pursuant to Bankruptcy Rule 3018(a) temporarily allowing such Claim for voting purposes in a different amount (a “Rule 3018(a) Motion”). Any Rule 3018(a) Motion must be filed with the Bankruptcy Court and served on the Notice Parties so as to be actually received not later than December 2, 2020 at 4:00 p.m. (prevailing Central Time).
36. Upon the filing of any such Rule 3018(a) Motion, such creditor’s Ballot shall be counted in accordance with the above-designated guidelines, unless temporarily Allowed in a different amount by an order of this Bankruptcy Court entered prior to or concurrent with entry of an order confirming the Amended Plan.
Solicitation Packages
37. The Solicitation Packages are APPROVED.
38. The Debtors shall mail the Solicitation Packages no later than three (3) Business Days following the date of entry of the this Order (the “Solicitation Date”) to (i) the U.S.
15 Trustee (which Solicitation Package shall exclude a Ballot), (ii) holders of Claims in Voting Classes entitled to vote on the Amended Plan as of the Voting Record Date, and (iii) holders of Claims and Interests in Class 1 (Other Secured Claims), Class 2 (Other Priority Claims), Class 7 (Subordinated Claims) and Class 8 (Existing Queso Interests) as of the Voting Record Date (which Solicitation Package shall exclude a Ballot), as required by Bankruptcy Rule 3017(d).
39. Solicitation Packages shall contain copies of:
(a) the Disclosure Statement Order, as entered by the Bankruptcy Court and without attachments;
(b) the Notice of (I) Approval of Disclosure Statement, (II) Establishment of Voting Record Date, (III) Hearing on Confirmation of the Plan, (IV) Procedures for Objecting to the Confirmation of the Plan, (V) Cure Procedures, and (VI) Procedures and Deadline for Voting on the Plan (the “Confirmation Hearing Notice”);
(c) a CD-ROM or USB flash drive containing the Disclosure Statement, which shall include the Amended Plan as an attachment (except as provided below);
(d) if the recipient is entitled to vote on the Amended Plan (as set forth herein), a Ballot (as defined below) customized for such holder and conforming to Official Bankruptcy Form No. B 314, in the form described below, and a postage-prepaid return envelope;6 and
(e) if the recipient is a holder of a Class 5 General Unsecured Claim, a copy of the Creditors’ Committee letter in support of the Amended Plan.
40. If the recipient is a holder of a Claim or Interest in a Non-Voting Class and, therefore, not entitled to vote on the Amended Plan (as set forth herein), then they will be served the Confirmation Hearing Notice and the applicable Notice of Non-Voting Status (as defined and described herein).
6 Official Bankruptcy Form No. B 314 can be found at http://www.uscourts.gov/forms/bankruptcy-forms, the official website for the United States Bankruptcy Courts.
16 41. Any creditor for which service by CD-ROM or USB poses a hardship may request an additional copy of the Disclosure Statement (and attachments) in paper format by contacting Prime Clerk by email at [email protected], or by telephone at (877) 930-4313 (Toll-Free) or (347) 899-4582 (if calling from outside the U.S.). Upon receipt of such request, the Debtors will provide such creditor with a paper copy of the Amended Plan and the Disclosure Statement at no cost to the creditor within five (5) days thereafter. Alternatively, holders in Class 3 (First Lien Debt Claims) and Class 5 (General Unsecured Claims) may submit their Ballots via Prime Clerk’s online E-Balloting Portal by visiting https://cases.primeclerk.com/cecentertainment/Home-Index, clicking on the “Submit E-Ballot”
section of the website, and following the instructions set forth on the E-Ballot. Nominees in Class 4 (Senior Unsecured Note Claims) may submit ballots via email to [email protected].
42. The Debtors shall not be required to send Solicitation Packages to creditors that have Claims that have already been paid in full; provided, however, that if any such creditor would be entitled to receive a Solicitation Package for any other reason, then the Debtors shall send such creditor a Solicitation Package in accordance with the procedures set forth herein.
43. With respect to addresses from which Solicitation Packages are returned as undeliverable by the United States Postal Service, the Debtors are excused from mailing Solicitation Packages or any other materials related to voting or confirmation of the Amended Plan to those entities listed at such addresses unless the Debtors are provided with accurate addresses for such entities before the Voting Deadline, and failure to mail Solicitation Packages or any other materials related to voting or confirmation of the Amended Plan to such entities will not constitute
17 inadequate notice of the Confirmation Hearing or the Voting Deadline and shall not constitute a violation of Bankruptcy Rule 3017.
Notice of Non-Voting Status
44. The Notice of Non-Voting Status is APPROVED.
45. To the holders of Claims in Class 1 (Other Secured Claims) and Class 2 (Other Priority Claims), the Debtors shall mail a Confirmation Hearing Notice and a Notice of Non-Voting Status, substantially in the form attached hereto as Exhibit 6, in lieu of a Solicitation Package.
46. The Debtors shall also mail the Confirmation Hearing Notice and Notice of Non-Voting Status to the holders of Claims or Interests in Class 7 (Subordinated Claims) and Class 8 (Existing Queso Interests), in lieu of the Solicitation Package.
47. The Debtors need not serve a Notice of Non-Voting Status or any other type of notice in connection with solicitation of the Amended Plan on the holders of Claims and Interests in Class 6 (Intercompany Claims) and Class 9 (Intercompany Interests) because such Claims and Interests are held by the Debtors or the Debtors’ affiliates and are Unimpaired by the Plan.
Ballots
48. The Ballots are APPROVED.
49. The Voting Deadline shall be December 8, 2020 at 4:00 p.m. (prevailing Central Time) (the “Voting Deadline”).
50. All Ballots must be properly executed, completed, and delivered to the Voting Agent (i) by first-class mail in the return envelope provided with each Ballot; (ii) by
18 overnight courier; (iii) by hand delivery, (iv) for Class 4 Master Ballot Submissions only, via email at [email protected], or (v), with respect to Ballots for holders in Class 3 (First Lien Debt Claims) and holders in Class 5 (General Unsecured Claims) via Prime Clerk’s online balloting portal, so that they are actually received by the Voting Agent no later than the Voting Deadline.
51. The Debtors are authorized to distribute the following two forms of Ballots to holders of the Senior Unsecured Notes Claims entitled to vote on the Amended Plan in Class 4 (Senior Unsecured Notes Claims): (i) a form of Ballot for a beneficial owner of the Senior Unsecured Notes Claim (the “Beneficial Holder” and the corresponding ballot, the “Class 4 Beneficial Holder Ballot”) and (ii) a form of Ballot for the bank, broker, or other financial institution that holds the Senior Unsecured Notes “in street name” at DTC on behalf of the Beneficial Holder (each, a “Nominee”) (or agent thereof) to transmit the votes of one or more beneficial owners (the “Class 4 Master Ballot”).
Tabulation Procedures
52. The following tabulation procedures are APPROVED:
(a) Whenever a creditor casts more than one Ballot voting the same Claim(s) before the Voting Deadline, the last valid Ballot received on or before the Voting Deadline shall be deemed to reflect such creditor’s intent, and thus, to supersede any prior Ballot.
(b) Whenever a creditor casts a Ballot that is properly completed, executed and timely returned to the Voting Agent, but does not indicate either an acceptance or rejection of the Amended Plan, the Ballot will not be counted.
(c) Whenever a creditor casts a Ballot that is properly completed, executed, and timely returned to the Voting Agent, but indicates both an acceptance and a rejection of the Amended Plan, the Ballot will not be counted.
(d) A creditor shall be deemed to have voted the full amount of its Claim in each class and shall not be entitled to split its vote within a particular class
19 or between more than one Debtor. Any creditor’s Ballot that partially accepts and partially rejects the Amended Plan, between the same or multiple Debtors, will not be counted.
(e) a creditor who holds Claims against more than one Debtor who cases a single Ballot shall have its votes counted separately with respect to each such Debtor.
(f) Whenever a creditor casts multiple Ballots received by the Voting Agent simultaneously, but which are voted inconsistently, such Ballots will not be counted.
(g) The Class 4 Beneficial Holder Ballots provided to Beneficial Holders will reflect the principal amount of such Beneficial Holder’s Claim;
(h) The following Ballots shall not be counted:
i. Any Ballot received after the Voting Deadline, unless the Debtors, with the consent of the Creditors’ Committee and the Requisite Consenting Creditors, which consent shall not be unreasonably withheld, shall have granted an extension of the Voting Deadline in writing with respect to such Ballot;
ii. Any Ballot that is illegible or contains insufficient information to permit the identification of the claimant;
iii. Any Ballot cast by a person or entity that does not hold a Claim in a Class that is entitled to vote to accept or reject the Amended Plan;
iv. Any Ballot cast by a person who is not entitled to vote, even if such individual holds a Claim in a Voting Class;
v. Any unsigned Ballot;
vi. Any Ballot which the Bankruptcy Court determines, after notice and a hearing, that such vote was not solicited or procured in good faith or in accordance with the provisions of the Bankruptcy Code; or vii. Any Ballot transmitted to the Voting Agent by facsimile or other
means not specifically approved herein.
(i) A holder of Claims in more than one Class must use separate Ballots for each Class of Claims.
20 53. The following additional procedures shall apply to Claims of Beneficial Holders of Senior Unsecured Notes who hold their position at DTC in “street name” through a Nominee:
a. the date of the Disclosure Statement Hearing, November 4, 2020, is the record date for determining the identity of Beneficial Holders eligible to vote on the Amended Plan;
b. the Solicitation Agent shall distribute, or cause to be distributed, the appropriate number of copies of Ballots to Nominees identified by the Solicitation Agent as entities through which Beneficial Holders hold Senior Unsecured Notes Claims as of the Voting Record Date;
c. any Nominee that is a holder of record with respect to Senior Unsecured Notes shall solicit votes from Beneficial Holders of such Senior Unsecured Notes Claims by: (i) immediately distributing the Solicitation Package, including Class 4 Beneficial Holder Ballots, it receives from the Solicitation Agent to all such Beneficial Holders;
(ii) providing such Beneficial Holders with a return address and envelope to send Ballots;
(iii) promptly collecting Class 4 Beneficial Holder Ballots from such Beneficial Holders that cast votes on the Amended Plan; (iv) compiling and validating the votes and other relevant information of all such Beneficial Holders on the applicable master ballot; and (v) transmitting the applicable Class 4 Master Ballot to the Solicitation Agent by the Voting Deadline;
d. any Beneficial Holder holding a Senior Unsecured Notes Claim as a record holder in its own name shall vote on the Amended Plan by completing and signing a Class 4 Master Ballot on its behalf and returning it directly to the Solicitation Agent on or before the Voting Deadline;
d. any Beneficial Holder holding a Senior Unsecured Notes Claim as a record holder in its own name shall vote on the Amended Plan by completing and signing a Class 4 Master Ballot on its behalf and returning it directly to the Solicitation Agent on or before the Voting Deadline;