SETTLEMENT AGREEMENT
Exhibit
99.2
EXECUTION
VERSION
SETTLEMENT
AGREEMENT made as of this 3rd day of June 2009 (the “Agreement”) by and
among the Official Committee of Unsecured Creditors (the “Committee”) of the
chapter 11 bankruptcy estates (the “Estates”) of Midway
Games, Inc. (“Midway”), Midway Home
Entertainment Inc., Midway Amusement Games, LLC, Midway Interactive Inc.,
Surreal Software Inc., Midway Studios - Austin Inc., Midway Studios - Los
Angeles Inc., Midway Games West Inc., Midway Home Studios Inc., and Midway Sales
Company, LLC (each a “Debtor” and
collectively, the “Debtors” or the
“Company”), and
Xxxx X. Xxxxxx (“Xxxxxx”), Acquisition
Holdings Subsidiary I, LLC (“AHS”) and MT
Acquisition Holdings LLC (“MTAH” and,
collectively with Xxxxxx and AHS, the “Xxxxxx Parties”; and
collectively with the Committee, on behalf of the Estates and the Estate’s
unsecured creditors, the “Parties”).
The
Parties have engaged in extensive, good faith, arms-length negotiation, based
upon which the Parties now desire to settle and resolve certain disputes between
them in connection with the Xxxxxx Parties’ claims against and interests in the
Debtors and the Estate’s claims against the Xxxxxx Parties (i) regarding the
nature of the Xxxxxx Parties’ claims and interests in the Debtors and (ii)
arising from certain events and circumstances preceding the filing of the
Debtors’ chapter 11 cases (the “Cases”) and occurring
or arising during the Cases.
The terms
and conditions described herein are part of a comprehensive compromise, each
element of which is consideration for the other elements and an integral aspect
of the restructuring proposed herein.
RECITALS
A. On
February 12, 2009 (the “Petition Date”), each
of the Debtors filed a voluntary petition for relief under chapter 11, title 11
of the United States Code (the “Bankruptcy Code”) in
the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).
The Cases are being jointly administered under bankruptcy case 09-10465
(KG).
B. On
February 23, 2009, the United States Trustee for the District of Delaware (the
“U.S. Trustee”)
appointed the Committee.
C. Prior to
the Petition Date, Midway was a publicly traded company, with its common stock
trading on the New York Stock Exchange under the symbol MWY. Until November 28,
2008, approximately 87% of Midway’s common shares were owned and controlled by
Xxxxxx X. Xxxxxxxx (“Redstone”),
individually, and through two affiliated companies that he owned and controlled,
National Amusements Inc. (“NAI”) and Sumco Inc.
(“Sumco” and,
collectively with Xx. Xxxxxxxx and NAI, the “Redstone
Parties”).
D. On
February 29, 2008, the Debtors entered into certain transactions with NAI (the
“February 2008
Transactions”) pursuant to which NAI made loans to the Debtors in the
aggregate amount of $90 million, consisting of: (i) a $30 million loan facility
(consisting of a term loan and a revolving credit facility) secured by
substantially all of Midway’s assets (the “Secured Facility”),
(b) a $40 million unsecured loan facility (the “Unsecured Facility”),
and
(c) a
$20 million unsecured subordinated loan facility (the “Subordinated
Facility” and, collectively with the Secured Facility and the Unsecured
Facility, the “Facilities”). The
Committee has alleged, inter
alia, that the Midway Board of Directors violated its fiduciary duties in
connection with the creation of the Facilities and that the Facilities should be
recharacterized as equity.
E. On
November 28, 2008, the Redstone Parties sold to AHS for an aggregate purchase
price of $100,000 (i) all of their approximate 87% equity stake in Midway (the
“Majority
Shares”), (ii) a 100% participation interest in the Secured Facility, and
(iii) a 100% participation interest in the Unsecured Facility (the transactions
described in (i), (ii) and (iii) above, collectively, the “Xxxxxxxx-Xxxxxx
Transaction”). Subsequently, NAI formally assigned all of its
rights and interests in the Secured Facility and Unsecured Facility to
AHS.
F. Upon
commencing the Cases, the Debtors immediately moved the Bankruptcy Court for
authority to use the cash collateral of AHS subject to certain terms and
conditions negotiated by AHS with the Debtors (the “Cash Collateral
Motion”). Certain noteholders holding notes issued by certain of the
Debtors (the “Objecting
Noteholders”) filed a preliminary objection to the Cash Collateral Motion
and opposed the Cash Collateral Motion at the February 13, 2009 interim
hearing.
G. On
February 17, 2009, the Bankruptcy Court entered an interim order (the “Interim Cash Collateral
Order”) authorizing some of the relief requested in the Cash Collateral
Motion, subject to modifications addressed on the record of the February 13,
2009 hearing. The Interim Cash Collateral Order provided, inter alia, (i) that all
interest accruing under the Secured Facility be paid by the Debtors into a
segregated account maintained in the name of the Debtors subject to AHS’s liens
(the “Segregated
Interest Account”) until further order of the Bankruptcy Court and (ii)
permitted AHS to receive as adequate protection the out of pocket expenses of
AHS for reasonable professional fees (including his or its legal and financial
advisors) incurred on behalf of AHS both prior to the Petition Date and during
the period covered by the Interim Cash Collateral Order (“AHS’s Professional
Fees”). Subsequent to the entry of the Interim Cash Collateral
Order, the Debtors paid AHS’s Professional Fees in the aggregate sum of
$287,332.63 (the “Professional Fee
Payments”).
H. Following
its formation, the Committee joined in the Objecting Noteholders’ objection to
the Cash Collateral Motion. The Objecting Noteholders and, subsequently, the
Committee contended, among other things, that the terms and conditions that AHS
had demanded in return for permitting the Debtors’ use of cash collateral were
overreaching, that AHS was and is substantially over-secured in its collateral
and, hence, did not require the various protections that were proposed in favor
of AHS in the Cash Collateral Motion, and that the unique nature of the events
and insider transactions that had occurred prepetition created material claims
against various insiders, the Xxxxxx Parties, and others that required
investigation by the Committee.
I. In
response to the objections to the Cash Collateral Motion, AHS filed its own
objection to the Cash Collateral Motion and a cross-motion for relief from the
automatic stay to enforce its rights and remedies under the Secured Facility and
Unsecured Facility if the Cash Collateral Motion was not approved in a manner
acceptable to
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AHS,
contending that AHS’s collateral is declining in value and the Debtors cannot
provide AHS with adequate protection.
J. Following
evidentiary hearings that took place on April 1 and April 6, 2009, the
Bankruptcy Court sustained the Committee’s objection to the Cash Collateral
Motion and, on April 9, 2009, entered (i) an order authorizing the Debtors’ use
of cash collateral on terms and conditions as set forth therein (the “Final Cash Collateral
Order”) and (ii) an order denying AHS’s cross-motion for relief from the
automatic stay (the “Order Denying the
Cross-Motion”; collectively with the Final Cash Collateral Order, the
“Orders”). As
part of the Cash Collateral Order, the Bankruptcy Court granted the Committee
the right to “investigate, assert and/or prosecute on behalf of Debtors’ estates
any and all claims of the estates against any party that arise out of, or relate
to (a) any transaction by and between NAI or any of its affiliates or
shareholders on the one hand, and any of the Debtors on the other hand, (b)
transactions that led to AHS, and/or any of AHS’ affiliates, insiders or
shareholders, becoming the majority owner of the Debtors and the owner of claims
against the Debtors previously held by NAI and (c) any action or omission of any
insider or affiliate of the Debtors including, without limitation, NAI, AHS, or
any of their respective affiliates, insiders or shareholders, in connection with
any of the Debtors” in the Cases.
K. The Cash
Collateral Order continued to permit interest payments to be segregated into the
Segregated Interest Account subject to AHS’s liens, but prohibited payments of
AHS’s Professional Fees, subject to further Court order.
L. On April
20, 2009, AHS appealed each of the Orders and filed with the Bankruptcy Court a
motion for leave to appeal each of the Orders under 28 U.S.C. § 158(a)
(collectively, each of AHS’s appeals and its motion for leave to appeal, the
“Appeals”).
M. On May
11, 2009, the Committee filed a complaint against a number of parties, including
the Xxxxxx Parties, alleging claims arising out of and in connection with the
February 2008 Transactions and the Xxxxxxxx-Xxxxxx Transaction (the “Pending
Actions”).
N. The
Parties have engaged in good faith negotiations regarding resolving (i) the
Estates’ claims against the Xxxxxx Parties (including without limitation the
claims asserted in the Pending Actions), (ii) the Xxxxxx Parties’ claims against
the Estates and interests in the Debtors and (iii) the Appeals.
AGREEMENT
NOW,
THEREFORE, the Parties, intending to be legally bound, and in exchange for
valuable consideration the receipt of which is acknowledged, agree and stipulate
as follows:
1. INCORPORATION
OF RECITALS
The
Recitals set forth above are incorporated by reference.
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2. EFFECTIVENESS
OF AGREEMENT
This
Agreement shall be submitted for approval by the Bankruptcy Court in a motion
filed by the Committee (the “Settlement Motion”)
to approve the compromises contained herein pursuant to Rule 9019 of the Federal
Rules of Bankruptcy Procedure and shall become effective and binding on the date
(the “Settlement
Effective Date”) on which the order approving the Settlement Motion has
become a final order (the “Settlement
Order”). The Committee shall use reasonable efforts to procure
approval of this Agreement by the Bankruptcy Court.
3. SETTLEMENT
PAYMENT
3.1. Consideration to Xxxxxx
Parties. In full and complete satisfaction of all claims,
liens, security interests, rights and interests of any of the Xxxxxx Parties in
the Debtors or any property of the Debtors (collectively, the “Xxxxxx Claims”), the
Xxxxxx Parties shall receive the following:
a.
Allowed Settlement
Claim. Effective as of the Settlement Effective Date, AHS
shall have an allowed claim against the Estates in the aggregate amount of
$5,000,000 (the “Settlement
Claim”). The Settlement Claim shall be secured by a valid,
binding, perfected, first in priority lien and security interest in those assets
that constitute collateral under the Secured Facility and proceeds thereof (the
“Collateral”),
provided, that the security interest securing the Settlement Claim shall not be
subject to surcharge under section 506(c) of the Bankruptcy Code or the equities
of the case exception to section 552(b) of the Bankruptcy Code, and further
provided that the Debtors may not grant, to any person or entity, liens on or
security interests in the Collateral that are senior to the security interest
securing the Settlement Claim. The Settlement Claim and the security interest
securing the Settlement Claim shall be effective as of the date of the
Settlement Effective Date without any further action by the Xxxxxx Parties or
the Debtors and without the necessity of the execution, filing or recordation of
any financing statements, security agreements, lien applications or other
documents. The security interest securing the Settlement Claim shall terminate
automatically upon receipt of the Settlement Payment (as defined in Section
3.1(b)).
b.
Amount and Timing of
Settlement Payment. Upon the earlier of (i) the date upon
which the sale of substantially all of the Debtors’ assets closes (“Sale Date”) and (ii)
the effective date of a confirmed plan of reorganization or liquidation (“Plan”) in the Cases
(“Plan Effective
Date” and either of the Sale Date and Plan Effective Date, as applicable,
a “Settlement Payment
Date”), the Estates shall pay to AHS in cash, by wire transfer of
immediately available funds to an account maintained with a depository located
in the United States and specified by AHS, the amount of the Settlement Claim,
less the Professional Fee Payments (the “Settlement Payment”),
provided that in the event that a sale of substantially all of the Debtors’
assets under (i) of this Section 3.1(b), AHS may request that the Settlement
Payment be paid to AHS at closing directly from the sale proceeds.
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c.
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Releases. Effective
as of the Settlement Effective Date, the releases contained in Section 5
hereof shall become effective and binding in all
respects.
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4. DISPOSITION
OF XXXXXX CLAIMS AND MAJORITY SHARES
4.1. Upon Closing of
Sale(s). Each of the Xxxxxx Parties hereby consents to any
sale of substantially all of the Debtors’ assets, or to any sales of assets
that, collectively, will result in the sale of substantially all of the Debtors’
assets, so long as such sale or sales result in the Xxxxxx Parties’ timely
receipt of the Settlement Payment, as provided herein. Each of the Xxxxxx
Parties further agrees that any such sale(s) of assets will be free and clear
(within the meaning of section 363(f) of the Bankruptcy Code) of all liens,
claims, interests and other encumbrances that secure the Settlement Claim,
provided such liens, claims, interests and other encumbrances attach to the
proceeds of any such sales with the validity, priority, force and effect as set
forth in Section 3.1(a) of this Agreement.
4.2. No Further
Claims. Upon the receipt of the Settlement Payment but subject
to Sections 5.5 and 5.6(b) hereof, (a) none of the Xxxxxx Parties will have any
claim arising out of or in any way related to the Xxxxxxxx-Xxxxxx Transaction,
against anyone, including, without limitation, the Committee, the Debtors or the
Estates, or against any property of any of the Estates and (b) none of the
Xxxxxx Parties will assert or will be entitled to assert any further right of
payment from the Committee, the Debtors or the Estates with respect to any such
claim. For the avoidance of doubt, none of the Xxxxxx Parties is, by virtue of
Section 4.2, waiving any claim which may later be asserted as a Permitted
Counterclaim (as hereinafter defined).
4.3. No Interest or
Fees. No interest will accrue on the Settlement Claim.
Furthermore, the Xxxxxx Parties shall not be entitled to recover from the
Estates or from any property of any of the Estates any interest, fees or
expenses in connection with either the Xxxxxx Claims or the Settlement
Claim.
4.4. Majority
Shares. Effective upon the Settlement Effective Date, the
Xxxxxx Parties hereby grant to the Committee, on behalf of the Estates and their
general unsecured creditors, an irrevocable proxy to vote the Majority Shares
(the “Proxy”) and do hereby forever and irrevocably relinquish the right to vote
the Majority Shares in favor of the Committee pursuant to the Proxy or pursuant
to the dictates of a Plan supported by the Committee and confirmed by the
Bankruptcy Court. The ultimate disposition of the Majority Shares
will be determined by the Committee, on behalf of the Estates and their general
unsecured creditors, in the context of a Plan supported by the Committee and
confirmed by the Bankruptcy Court, or, if the Cases are converted to chapter 7
bankruptcy cases, by the chapter 7 trustee of the Midway’s bankruptcy
estate.
5. RELEASES.
5.1. The Estates’ Release of the
Xxxxxx Parties: Effective as of the Settlement Effective Date,
the Committee, on behalf of the Estates and any other party having standing to
bring the causes of action released pursuant to this Section 5,1, hereby
RELEASE, ACQUIT and
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FOREVER
DISCHARGE each of the Xxxxxx Parties and their respective affiliates,
successors, assigns, partners, shareholders, members, managers, directors,
officers, attorneys, agents, representatives and employees and the successors,
assigns, heirs, executors and personal representatives of each of the foregoing
(the “Xxxxxx Released
Parties”), from any and all possible action and actions, cause and causes
of action, avoidance actions, suits, account, promissory notes, deposits,
covenants, contracts, controversies, agreements, promises, damages, rights,
duties, executions, claims, demands, obligations, allegations, costs, expenses,
liabilities or other rights of any nature whatsoever related to, arising from or
connected with the Xxxxxxxx- Xxxxxx Transaction, the Debtors, the Estates or the
Cases, including, without limitation, the ownership of the common stock of
Midway and the ownership of the Secured Facility and the Unsecured Facility,
whether liquidated or unliquidated, fixed or contingent, matured or unmatured,
known or unknown, foreseen or unforeseen, then existing or thereafter arising,
in law (in contract, tort or otherwise), equity or otherwise that are based in
whole or in part on any act, omission, transaction, event or other occurrence
taking place on or prior to receipt of the Settlement Payment (collectively, the
“Released
Claims”); provided, however, the Released Claims do not include claims,
rights, obligations and privileges created by or arising under this Agreement.
The Committee, on behalf of the Estates and any other party having standing to
bring the causes of action released pursuant to this Section 5.1, covenants and
agrees that this release of the Released Claims shall operate as a complete bar
to any such Released Claims. Except for litigation to enforce the terms of this
Agreement, the Committee, on behalf of the Estates, hereby covenants and agrees
that no representative of the Estates will initiate, prosecute or maintain any
action, suit or other proceeding against the Xxxxxx Released Parties, or give
advice or assistance in relation to any action, suit or other proceeding against
the Xxxxxx Released Parties, which arises out of, or is or may be, in whole or
in part, based upon, related to or connected with the Released Claims, subject
in each case to the provisions of Section 5.6(a).
5.2. Xxxxxx Parties’ Release of
the Debtors’ Estates and the Committee. Effective as of
the Settlement Effective Date, the Xxxxxx Parties, for themselves and their
respective affiliates, successors, assigns, partners, shareholders, members,
managers, directors, officers, attorneys, agents, representatives and employees,
hereby RELEASE, ACQUIT and FOREVER DISCHARGE the Committee, the Debtors and any
of the Debtors’ respective Estates, affiliates, successors, assigns, partners,
shareholders, members, directors, officers, attorneys, agents, representatives
and employees and the successors, assigns, heirs executors and personal
representatives of each of the foregoing (the “Estate Released
Parties”) from any and all possible action and actions, cause and causes
of action, avoidance actions, suits, account, promissory notes, deposits,
covenants, contracts, controversies, agreements, promises, damages, rights,
duties, executions, claims, demands, obligations, allegations, costs, expenses,
liabilities or other similar rights of any nature whatsoever related to, arising
from or connected to Debtors or the Estates, including, without limitation, the
Xxxxxxxx-Xxxxxx Transaction, ownership of the common stock of Midway and
ownership of the indebtedness owed under the Secured Facility and the Unsecured
Facility, whether liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen, then existing or thereafter
arising, in law (in contract, tort, or otherwise), equity or otherwise that are
based in whole or in part on any act, omission, transaction, event or other
occurrence taking place on or prior to receipt of the Settlement Payment
(collectively, the “Xxxxxx Parties Released
Claims”); provided, however, the Xxxxxx Parties Released Claims do not
include apply to claims, rights, obligations and privileges created by or
arising under this Agreement. Each of the Xxxxxx Parties agrees
that
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this
release of the Xxxxxx Parties Released Claims shall operate as a complete bar to
any such Xxxxxx Parties Released Claims. Except for litigation to enforce the
terms of this Agreement, each of the Xxxxxx Parties hereby covenants and agrees
that it will not initiate, prosecute or maintain any action, suit, crossclaim,
counterclaim or proceeding or give advice or assistance in relation to any
action, suit or proceeding which arises out of, or is or may be, in whole or in
part, based upon, related to, or connected with the Xxxxxx Parties Released
Claims, subject in each case to the provisions of Sections 5.5 and
5.6(b).
5.3. Release of Cash in
Segregated Interest Account to Estates. Effective upon the
receipt of the Settlement Payment, all cash maintained in the Segregated
Interest Account shall be released from such account and shall be available for
use by the Debtors in the ordinary course of their business or as otherwise
authorized by the Bankruptcy Court.
5.4. Release of Liens and
Security Interests. Effective upon receipt of the Settlement
Payment, all liens and security interests securing any of the Xxxxxx Claims
shall be deemed automatically terminated without any further action by any of
the Xxxxxx Parties or the Debtors and without the necessity of the execution,
filing or recordation of any documents. Notwithstanding the foregoing, effective
upon the receipt of the Settlement Payment, each of the Debtors and the
Committee is irrevocably authorized to file and/or record, on behalf of any of
the Xxxxxx Parties, any lien termination statement or similar document that any
of the Debtors or the Committee determines to be necessary to effectuate the
release or termination of any lien against or security interest in the
Collateral, or any portion thereof, filed or recorded in the name of any of the
Xxxxxx Parties.
5.5. Limitations on Xxxxxx
Parties’ Actions. On and after the Settlement Effective Date,
subject in each case to the provisions of Section 5.6(b), none of the Xxxxxx
Parties shall file any pleading, motion or other paper or make any argument
contrary to any position supported by the Committee, except to the extent (i)
necessary to enforce their rights under this Agreement, (ii) necessary to defend
against any claims, crossclaims or counterclaims asserted by any party other
than the Committee, or (iii) the Committee has provided the Xxxxxx Parties
written consent to do so. On and after the Settlement Effective Date, except
with respect to the enforcement of their rights under this Agreement, none of
the Xxxxxx Parties shall initiate or prosecute any action or claim (including,
without limitation, crossclaims and counterclaims) against any person or entity
in connection with the Xxxxxx Parties Released Claims or in connection with the
claims or assertions set forth in the Pending Actions; provided, however, the Xxxxxx
Parties shall be entitled to assert any crossclaims and counterclaims against
any of the Redstone Parties in any action brought by the Redstone Parties
against the Xxxxxx Parties concerning the assertions set forth in the Pending
Actions or relating to the Xxxxxxxx-Xxxxxx Transaction (“Permitted
Counterclaims”); provided further, that the
Xxxxxx Parties may assert Permitted Counterclaims only for the purpose of
offsetting claims asserted by any of the Redstone Parties against the Xxxxxx
Parties.
5.6. Certain
Exceptions.
a. Nothing
in this Agreement affects any right of the Committee or its attorneys to
prosecute the Pending Actions, or any other action or claim, against any party
other than the Xxxxxx Released Parties, in a manner that the Committee and its
attorneys determine, in their sole discretion, to be appropriate. Furthermore,
notwithstanding the provisions of the last sentence of Section 5.1 hereof,
nothing in this Agreement affects any obligation of the Committee, any member of
the Committee, or any representative of the Estates to produce documents in its
possession or under its control or provide truthful testimony in the event it is
subpoenaed or otherwise required to testify in the Pending Actions or in any
other action, suit or proceeding brought against it by any person or
entity.
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b. Notwithstanding
the provisions of Section 4.2 hereof, the last sentence of Section 5.2 hereof
and the provisions of Section 5.5 hereof, nothing in this Agreement affects any
obligation of any of the Xxxxxx Parties to produce documents in their possession
or under their control or provide truthful testimony in the event they are
subpoenaed or otherwise required to testify in the Pending Actions or in any
action, suit or proceeding brought against any of them by any person or entity
(including with respect to any Permitted Counterclaim).
5.7. Dismissal of the Pending
Actions Against Xxxxxx Parties. On the Settlement Effective
Date, the Committee shall file a notice and take such other measures as are
necessary in the Pending Actions to dismiss the Xxxxxx Parties as defendants in
such proceeding, with prejudice, without costs to either party, and without
rights of appeal. Upon execution of this Agreement, the Committee
does hereby extend any applicable response dates and deadlines, and seek a
continuance of all hearings, applicable to the Xxxxxx Parties in the Pending
Actions until the earlier of the Settlement Effective Date and thirty (30) days
after the Bankruptcy Court denies approval of this Agreement.
5.8. Dismissal of
Appeals. On the Settlement Effective Date, the Xxxxxx Parties
shall file a notice and take such other measures as are necessary in the Appeals
to withdraw the Appeals, with prejudice, without costs to either
party.
6. NO
SOLICITATION
Nothing
herein shall constitute the solicitation of votes under section 1126 of the
Bankruptcy Code or otherwise require any Party to vote for or against any
Plan.
7. MISCELLANEOUS
PROVISIONS
7.1. Authority. Each
of the signatories below represents and warrants that he or she has the power
and authority to bind the Party or Parties for whom he or she is signing this
Agreement and that no further approvals or consents are required to make this
Agreement binding on the Party or Parties on whose behalf such person executes
this Agreement.
7.2. Further
Assurances. The Parties shall each use their best efforts and
shall act in good faith to take or cause to be taken all action and do or cause
to be done all things necessary, proper or advisable to effect and consummate
this Agreement and the transactions contemplated by this Agreement, including
the negotiation of any other customary terms of a Plan and the execution of any
related documents, which in all respects shall be consistent with the terms of
this Agreement.
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7.3. Governing
Law. This Agreement shall be governed by federal law (to the
extent applicable) and the laws of the State of Delaware, without giving effect
to principles of conflicts or choice of laws.
7.4. Interpretation. Unless
the context of this Agreement clearly requires otherwise, references to the
plural include the singular, the singular includes the plural, the part includes
the whole, “including” is not limiting, and “or” has the inclusive meaning
represented by the phrase “and/or.” The words “hereof,” “herein,”
“hereby,” “hereunder,” and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
7.5. Integration. This
Agreement is intended by the Parties as a final expression of their agreement
and is intended as a complete statement of the terms and conditions of their
agreement and supersedes all prior understandings and agreements, whether
written or oral, among the Parties relating to the terms and conditions provided
for in this Agreement.
7.6. No Oral
Modification. This Agreement may only be modified by a writing
executed by each of the Parties.
7.7. Duration;
Survival. All representations and warranties in this Agreement
shall survive the making of, and will not be waived by, the execution and
delivery of this Agreement.
7.8. Headings. The
headings of the sections in this Agreement are for purposes of reference only,
and shall not limit or affect the meaning of any section.
7.9. Joint
Preparation. The preparation of this Agreement has been a
joint effort of the Parties and the resulting document shall not be construed
against any party as the draftsman.
7.10.
Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns, heirs,
executors and personal representatives, including, without limitation, the
Debtors, any trustee of the Debtors in the Cases or under chapter 7 of the
Bankruptcy Code, and any person or entity charged with representing the
interests of the Estates, or any successors to the interests of the Estates,
following confirmation of a Plan. The Xxxxxx Released Parties are
intended third party beneficiaries of this Agreement.
7.11. No Admission of
Liability. The Parties hereto deny the liability of each Party
to the other for all matters that are the subject of the foregoing releases and
this Agreement shall (i) constitute a final compromise and settlement thereof,
and (ii) not constitute an admission of liability by the Parties hereto with
respect to claims arising out of or in any way related to the Xxxxxxxx-Xxxxxx
Transaction.
7.12. Counterparts; Execution by
Facsimile or PDF. This Agreement may be executed in one or
more counterparts and by facsimile or pdf, each of which shall be deemed an
original, but all of which shall constitute one and the same
agreement.
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7.13. CHOICE
OF VENUE. THE PARTIES AGREE THAT ALL DISPUTES OF EVERY KIND AND NATURE ARISING
UNDER OR IN CONNECTION WITH THIS AGREEMENT MAY BE RESOLVED IN THE UNITED STATES
BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE. THE PARTIES CONSENT TO THAT COURT
EXERCISING SUBJECT MATTER AND PERSONAL JURISDICTION WITH RESPECT TO ANY SUCH
DISPUTE.
IN WITNESS WHEREOF, the
Parties, intending to be legally bound, have duly executed this Agreement as of
the date first set forth above.
THE OFFICIAL COMMITTEE OF UNSECURED
CREDITORS, ON BEHALF OF THE DEBTORS’ ESTATES AND
THEIR
CREDITORS:
By: /s/ Xxxxxx X.
Xxxxxxxx
Co-Chair of the
Committee
Xxxxxx X.
Xxxxxxxx
NBA Properties,
Inc.
By: /s/ Xxxx
Xxxxxxxxx
Co-Chair of the
Committee
Xxxx
Xxxxxxxxx
Highbridge
International LLC
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XXXXXX PARTIES:
XXXX
XXXXXX
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx,
individually
ACQUISITION HOLDINGS
SUBSIDIARY I, LLC.:
By: /s/ Xxxx X.
Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: Managing
Member
MT ACQUISITION
HOLDINGS, LLC.:
By: /s/ Xxxx X.
Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: Managing
Member
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