Opinion
Case Nos. BK-N-03-52300, BK-N-03-52304, BK-N-03-52470, BK-N-03-52474 Joint Administration.
December 30, 2004
JUDY B. CALTON, ESQ., HONIGMAN MILLER SCHWARTZ AND COHN LLP, Detroit, MI.
JOAN C. WRIGHT, ESQ., JAMES R. CAVILIA, ESQ., ALLISON, MacKENZIE, RUSSELL, PAVLAKIS, WRIGHT FAGAN, LTD. Carson City, NV, Attorneys for Trustee.
FINOVA CAPITAL CORPORATION, By Its Attorneys, KATTERN MUCHIN ZAVIS, ROSENMAN, MARSHA HOUSTON, ESQ., Los Angeles, CA, FINOVA Capital Corp., Jeffrey L. Hartman, Esq., Reno, NV.
TROON CO., By its attorneys UNGARETTI HARRIS, Gregge E. Szilagyi, Esq., Chicago, IL, C. ALAN BENTLEY CHAPTER 11 TRUSTEE, By Its Attorneys, ALLISON, MacKENZIE, RUSSELL, PAVLAKIS WRIGHT FAGAN, LTD., JOAN C. WIGHT, ESQ., JAMES R. CAVILIA, ESQ., Carson City, NV, HONIGMAN MILLER SCHWARTZ AND COHN LLP, JUDY B. CALTON, ESQ., Detroit, MI, for Attorney.
ORDER APPROVING SETTLEMENT AGREEMENT REGARDING FINOVA CAPITAL CORPORATION'S CLAIMS AGAINST THE DEBTORS' ESTATES, SURCHARGE AND OTHER MATTERS
This matter having come on to be considered upon the Motion to Approve Settlement Agreement Regarding FINOVA Capital Corporation's Claims Against the Debtors' Estates, Surcharge and Other Matters (the "Motion"), filed by C. ALAN BENTLEY, Chapter 11 Trustee (the "Trustee"), notice having been given and a hearing held, no further notice or hearing being necessary, the Court having considered the Motion and the opposition of Troon Co. ("Troon Opposition"), capitalized terms not defined in this Order having the meaning as defined in the Settlement Agreement Regarding FINOVA Capital Corporation's ("FINOVA") Claims Against the Debtors' Estate (the "FINOVA Settlement") attached to the Motion, and overruling the Troon Opposition, and the Court being fully advised in the premises;
THE COURT FINDS
A. The compromise represented by the FINOVA Settlement is fair and equitable, in the best interests of the estate and reasonable, given the particular circumstances of the case.
B. The Trustee and FINOVA have negotiated the FINOVA Settlement at arms length and in good faith and FINOVA consents to the surcharge provided in the Settlement.
C. The Trustee holds $595,000 in restricted cash from the sale of assets in which FINOVA has asserted a lien.
D. There is no just cause for delay of entry of this Order as a final order because the parties will be acting in prompt reliance on it.
E. In approving the sale of the Debtors' Las Vegas assets, including the redevelopment rights, on November 3, 2003, the Court relied upon the statements and representations of Troon Co. regarding FINOVA's entitlement to receive the proceeds of the sale of the redevelopment rights.
F. Such matters stated on the record at the hearing on this matter which are specifically incorporated herein under Federal Rules of Bankruptcy Procedure Rule 7052.
THE COURT HEREBY ORDERS that
1. The Trustee and FINOVA are authorized and directed to enter into, implement and comply with the FINOVA Settlement.
2. Upon this order being final and not subject to appeal, the sum of $195,000 (the "Settlement Amount") shall be released to FINOVA from the proceeds account held by the Trustee.
3. Upon this order being final and not subject to appeal, the sum of $376,000 (the "Surcharge") shall be released to the Trustee from the Proceeds Account held by the Trustee as a surcharge under 11 U.S.C. § 506(c) for the reasonable and necessary costs and expenses incurred in connection with the preservation and sale of the assets.
4. Upon this Order being final and not subject to appeal, the Trustee shall release $12,000 to itself for the Biloxi Sale which has closed and the balance of the Proceeds Account to FINOVA.
5. FINOVA shall be deemed to have consented to and will be surcharged for the Trustee's reasonable costs in connection with the sale and the sale process for reasonable fees and reimbursements of reasonable expenses of the Trustee and his professionals, as allowed by the Court and subject to FINOVA's review of all invoices and approval, such approval shall not be unreasonably withheld, in an amount not to exceed $12,000 for the sale approved at a hearing noticed by the Trustee of the water rights located in Huerfano County, Colorado (the "Water Rights") provided that such sale closes. The surcharge shall be paid from the escrow closing.
6. Effective upon this order being final and not subject to appeal, the Trustee shall be deemed to have waived and released any and all claims, causes of action, counterclaims and setoffs including, but not limited to, those arising under 506(c) (except as provided in Paragraph 4 of the Settlement Agreement), 510, 544, 545, 547, 548, 549, 550, 552 or 553 of the Bankruptcy Code or otherwise which the Debtors' estates or the Trustee has or ever had against FINOVA or its affiliates, predecessors, agents, attorneys, officers, directors and employees, except for any claims arising under the FINOVA Settlement. This waiver and release shall be binding upon the Committee as defined in the Settlement Agreement and any subsequently appointed trustee. The provisions of the waiver and release shall be binding as to Textron with respect to any claims Textron may have which are claims derivative of the Trustee, the estate or otherwise.
7. FINOVA shall be deemed to have an allowed unsecured claim in the Debtors' estates in the aggregate amount of $12,000,000.00 (the "Allowed Claim"). The Allowed Claim shall be FINOVA's sole remaining claim and FINOVA shall be deemed to have waived and released the balance of its claim and all other claims against the Debtors' estates, including any claim based on the Settlement Agreement with Resort Finance Corporation.
8. In the event and to the extent other creditors are determined to have valid and perfected senior liens or senior security interests in the Development Rights on certain of the Las Vegas properties FINOVA shall be entitled to recover the pro rata portion of the Surcharge from such other creditors.
9. The Court directs entry of this Order as a final order.
10. This order is made without prejudice to TROON CO.'s right to assert a first priority lien in the collateral.