09923-00001/12433089.2 1

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re:

CINEMEX USA REAL ESTATE Chapter 11

HOLDINGS, INC., CINEMEX

HOLDINGS USA, INC., and CB 

THEATER EXPERIENCE LLC,1

Case No. 20-14695-LMI

Debtors. (Jointly Administered)

 /

DEBTORS’ MEMORANDUM OF LAW IN SUPPORT OF

CONFIRMATION OF THE DEBTORS’ THIRD AMENDED JOINT

PLAN OF REORGANIZATION PURSUANT TO CHAPTER 11 OF THE

BANKRUPTCY CODE AND OMNIBUS REPLY TO OBJECTIONS THERETO

 

1

 The Debtors in these cases and the last four digits of each Debtor’s federal tax identification number are as follows: 

(1) Cinemex USA Real Estate Holdings, Inc. (2194); (2) Cinemex Holdings USA, Inc. (5502); and (3) CB Theater 

Experience, LLC (0563). The address for the Debtors is 175 South West 7th Street, Suite 1108, Miami, Florida 33130.

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09923-00001/12433089.2 i

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT........................................................................................... 1

BACKGROUND.................................................................................................................... 2

I. PROCEDURAL BACKGROUND............................................................................. 2

II. SOLICITATION AND NOTIFICATION PROCESS. .............................................. 3

ARGUMENT......................................................................................................................... 5

III. THE PLAN SATISFIES EACH REQUIREMENT FOR CONFIRMATION........... 5

A. The Plan Complies with the Applicable Provisions of the Bankruptcy 

Code (Section 1129(a)(1)). .................................................................................5

B. The Debtors Have Complied with the Applicable Provisions of the 

Bankruptcy Code (Section 1129(a)(2))..............................................................13

C. The Debtors Proposed the Plan in Good Faith and Not by Any Means 

Forbidden by Law (Section 1129(a)(3)). ...........................................................15

D. The Plan Provides That the Debtors’ Payment of Professional Fees and 

Expenses Are Subject to Court Approval (Section 1129(a)(4)). ..........................19

E. The Debtors Have Complied with the Bankruptcy Code’s Governance 

Disclosure Requirement (Section 1129(a)(5))....................................................21

F. The Plan Does Not Require Government Regulatory Approval of Rate 

Changes (Section 1129(a)(6)). ..........................................................................22

G. The Plan Is in the Best Interests of Holders of Claims and Interests 

(Section 1129(a)(7)). ........................................................................................22

H. The Plan Is Confirmable Notwithstanding the Requirements of Section 

1129(a)(8) of the Bankruptcy Code...................................................................23

I. The Plan Complies With Statutorily Mandated Treatment of 

Administrative and Priority Tax Claims (Section 1129(a)(9)). ...........................23

J. At Least One Impaired Class of Claims Has Accepted the Plan, Excluding 

the Acceptances of Insiders (Section 1129(a)(10)). ............................................25

K. The Plan Is Feasible and Is Not Likely to Be Followed by the Need for 

Further Financial Reorganization (Section 1129(a)(11)). ...................................25

L. The Plan Provides for the Payment of All Fees Under 28 U.S.C. § 1930 

(Section 1129(a)(12)). ......................................................................................26

M. The Plan Provides for the Payment of All Retiree Benefits (Section 

1129(a)(13)).....................................................................................................27

N. Section 1129(a)(14) Through Section 1129(a)(16) of the Bankruptcy Code 

Do Not Apply to the Plan. ................................................................................27

O. The Plan Satisfies the “Cram Down” Requirements of Section 1129(b) of 

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09923-00001/12433089.2 ii

the Bankruptcy Code........................................................................................27

P. The Plan Complies with the Other Provisions of Section 1129 of the 

Bankruptcy Code (Sections 1129(c)-(e)). ..........................................................30

IV. THE PLAN’S RELEASE, EXCULPATION, AND INJUNCTION 

PROVISIONS ARE APPROPRIATE AND COMPLY WITH THE 

BANKRUPTCY CODE............................................................................................ 31

A. The Debtor Release Is Appropriate and Complies with the Bankruptcy 

Code................................................................................................................31

B. The Third-Party Release Is Consensual, Appropriate, and Complies with 

the Bankruptcy Code........................................................................................33

C. The Exculpation Provision Is Appropriate and Complies with the 

Bankruptcy Code. ............................................................................................37

D. The Injunction Provision Is Appropriate and Complies with the 

Bankruptcy Code. ............................................................................................39

V. THE REMAINING OBJECTIONS ARE WITHOUT MERIT AND 

SHOULD BE OVERRULED. .................................................................................. 40

WAIVER OF BANKRUPTCY RULE 3020(E)................................................................... 40

CONCLUSION.................................................................................................................... 40

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09923-00001/12433089.2 1

TABLE OF AUTHORITIES

Page

CASES

Ad Hoc Group of Vitro Noteholders v. Vitro S.A.B. de C.V. (In re Vitro S.A.B. de C.V.),

701 F.3d 1031 (5th Cir. 2012)......................................................................................34

Bank of Am. Nat’l Tr. & Sav. Ass’n v. 203 N. LaSalle St. P’ship,

526 U.S. 434 (1999) ..............................................................................................22, 28

DISH Network Corp. v. DBSD N. Am., Inc.

(In re DBSD N. Am., Inc.), 634 F.3d 79 (2d Cir. 2011)..................................................28

Heartland Federal Savings & Loan Ass’n v. Briscoe Enter., Ltd. II

(In re Briscoe Enter., Ltd. II), 994 F.2d 1160 (5th Cir. 1993) ......................................... 5

In re 203 N. LaSalle St. Ltd. P’ship,

190 B.R. 567, 585 (Bankr. N.D. Ill. 1995) ....................................................................29

In re AJ Town Centre, LLC,

2012 WL 2524731 (Bankr. D. Ariz. Jan. 5, 2012) .........................................................37

In re Aleris Int’l, Inc.,

2010 WL 3492664 (Bankr. D. Del. May 13, 2010) .......................................................29

In re Armstrong World Indus., Inc.,

348 B.R. 136 (D. Del. 2006). .................................................................................25, 30

In re Armstrong World Indus., Inc.,

432 F.3d 507 (3d Cir. 2005).........................................................................................28

In re Aztec Co.,

107 B.R. 585 (Bankr. M.D. Tenn. 1989) ......................................................................29

In re Bigler LP,

442 B.R. 537 (Bankr. S.D. Tex. Nov. 24, 2010)............................................................32

In re Block Shim Dev. Company-Irving,

939 F.2d 289 (5th Cir. 1991)........................................................................................16

In re Camp Arrowhead, Ltd.,

451 B.R. 678 (Bankr. W.D. Tex. Mar. 21, 2011) ..........................................................39

In re Chemtura Corp.,

439 B.R. 561 (Bankr. S.D.N.Y. 2010)..........................................................................38

In re Cypresswood Land Partners, I,

409 B.R. 396 (Bankr. S.D. Tex. Jan. 20, 2009) ................................................... 5, 13, 16

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09923-00001/12433089.2 2

In re Davis Heritage GP Holdings, LLC,

443 B.R. 448 (Bankr. N.D. Fla. 2011) ..........................................................................17

In re DiMaria,

202 B.R. 634 (Bankr. S.D. Fla. 1996)............................................................................ 5

In re Dow Corning Corp.,

280 F.3d 648 (6th Cir. 2002)........................................................................................34

In re Drexel Burnham Lambert Group Inc.,

138 B.R. 723 (Bankr. S.D.N.Y. 1992) ..........................................................................26

In re Enron Corp.,

2004 WL 6075307 (Bankr. S.D.N.Y. July 15, 2004).....................................................25

In re Freymiller Trucking, Inc.,

190 B.R. 913 (Bankr. W.D. Okla. 1996).......................................................................29

In re General Dev. Corp.,

135 B.R. 1002 (Bankr. S.D. Fla. 1991).........................................................................16

In re General Homes Corp.,

134 B.R. 853 (Bankr. S.D. Tex. 1991)....................................................................32, 34

In re Heritage Org., LLC,

375 B.R. 230 (Bankr. N.D. Tex. Aug. 31, 2007) ...........................................................32

In re Idearc Inc.,

423 B.R. 138 (Bankr. N.D. Tex. 2009).........................................................................29

In re ION Media Networks, Inc.,

419 B.R. 585 (Bankr. S.D.N.Y. Nov. 24, 2009) ............................................................28

In re IPC Atlanta Ltd. P’Ship,

142 B.R. 547 (Bankr. N.D. Ga. 1992). .........................................................................26

In re J T Thorpe Co.,

308 B.R. 782 (Bankr. S.D. Tex. 2003)........................................................................... 5

In re Landing Assocs.,

157 B.R. 791 (Bankr. W.D. Tex. Jul. 19, 1993) ......................................................21, 25

In re Lason, Inc.,

300 B.R. 227 (Bankr. D. Del. Oct. 15, 2003) ................................................................22

In re Lernout & Hauspie Speech Prods., N.V., 

301 B.R. 651 (Bankr. D. Del. 2003) ............................................................................29

In re Lisanti Foods, Inc.,

329 B.R. 491 (D. N.J. 2005) ........................................................................................20

In re Malkus,

2004 WL 3202212 (Bankr. M.D. Fla. Nov. 15, 2004) ...................................................17

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 5 of 54
09923-00001/12433089.2 3

In re Marvel Entm’t Grp., Inc.,

273 B.R. 58 (D. Del. 2002)..........................................................................................18

In re Mirant Corp.,

348 B.R. 725 (Bankr. N.D. Tex. Aug. 9, 2006) .............................................................32

In re Neff,

60 B.R. 448 (Bankr. N.D. Tex. 1985) aff’d, 785 F.2d 1033 (5th Cir. 1986)....................22

In re Nutritional Sourcing Corp.,

398 B.R. 816 (Bankr. D. Del. 2008) .............................................................................. 5

In re One Times Square Assocs. Ltd. P'ship,

159 B.R. 695 (Bankr. S.D.N.Y. 1993) ..........................................................................25

In re Piper Aircraft Corp.,

244 F.3d 1289 (11th Cir. 2001)..............................................................................15, 16

In re Porcelli,

319 B.R. 8 (Bankr. M.D. Fla. 2004) .............................................................................. 6

In re PWS Holding Corp.,

228 F.3d 224 (3d. Cir. 2000)..................................................................................38, 39

In re S & W Enterprise,

37 B.R. 153 (Bankr. N.D. Ill. 1984) .............................................................................. 5

In re Seaside Eng’g & Surveying, Inc.,

780 F.3d 1070 (11th Cir. 2015)...................................................................15, 16, 34, 36

In re Sentry Operating Co. of Texas, Inc.,

264 B.R. 850 (Bankr. S.D. Tex. Jun. 19, 2001) .............................................................. 6

In re SGPA, Inc. ,

2001 WL 34750646 (Bankr. M.D. Pa. Sept. 28, 2001) ..................................................25

In re SM 104 Ltd.,

160 B.R. 202 (Bankr. S.D. Fla. 1993)...........................................................................16

In re Star Ambulance Service, LLC,

540 B.R. 251 (Bankr. S.D. Tex. Aug. 24, 2015). ...........................................................26

In re Station Casinos, Inc.,

2010 WL 11492265 (Bankr. D. Nev. Aug. 27, 2010). ...................................................27

In re Sun Country Dev., Inc.,

764 F.2d 406 (5th Cir. 1985)........................................................................................16

In re Texaco, Inc.,

84 B.R. 893 (Bankr. S.D.N.Y. 1988), appeal dismissed, 92 B.R. 38 (S.D.N.Y. 

1988) ..........................................................................................................................15

In re Texas Extrusion Corp.,

844 F.2d 1142 (5th Cir. 1988)......................................................................................22

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In re T-H New Orleans Ltd. P’ship,

116 F.3d 790 (5th Cir. 1997)..................................................................................25, 26

In re The Leslie Fay Cos., Inc.,

207 B.R. 764 (Bankr. S.D.N.Y. 1997)..........................................................................26

In re Toy & Sports Warehouse, Inc.,

37 B.R. 141 (Bankr. S.D.N.Y. 1984)........................................................................5, 13

In re Transwest Resort Props., Inc.,

554 B.R. 894 (D. Ariz. 2016).......................................................................................25

In re United Marine,

197 B.R. 942 (Bankr. S.D. Fla. 1996)...........................................................................16

In re W.R. Grace & Co.,

475 B.R. 34 (D. Del. 2012)........................................................................................... 6

In re Wool Growers Cent. Storage Co.,

371 B.R. 768 (Bankr. N.D. Tex. Jul. 19, 2007) .............................................................34

JP Morgan Chase Bank, N.A. v. Charter Commc’ns Operating, LLC (In re Charter 

Commc’ns),

419 B.R. 221 (Bankr. S.D.N.Y. 2009) ..........................................................................25

John Hancock Mut. Life Ins. Co. v. Route 37 Business Park Associates,

987 F.2d 154 (3d. Cir. Jan. 22, 1993) ...........................................................................28

Liberty Nat’l Enters. v. Ambanc La Mesa Ltd. P’Ship (In re Ambanc La Mesa Ltd. 

P’ship),

115 F.3d 650 (9th Cir. 1997)........................................................................................28

Matter of Cajun Elec. Power Co-op., Inc.,

150 F.3d 503 (5th Cir. 1998)..................................................................................13, 20

Matter of Foster Mortg. Corp.,

68 F.3d 914 (5th Cir. 1995)..........................................................................................33

Matter of Transwest Resort Props., Inc.,

881 F.3d 724 (9th Cir. 2018)........................................................................................25

McCormick v. Banc One Leasing Corp.,

49 F.3d 1524 (11th Cir. 1995)................................................................................15, 16

Olympia & York Florida Equity Corp. v. Bank of N.Y. (In re Holywell Corp.),

913 F.2d 873 (11th Cir. 1990)....................................................................................... 6

Pub Fin. Corp. v. Freeman

712 F.3d 219 (5th Cir. 1983)........................................................................................16

United Dominion Indus. Inc. v. United States,

532 U.S. 822 (2001) ....................................................................................................16

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09923-00001/12433089.2 5

STATUTES

11 U.S.C. § 328......................................................................................................................20

11 U.S.C. § 330......................................................................................................................20

11 U.S.C. § 365......................................................................................................................10

11 U.S.C. § 365(b)(1) .............................................................................................................11

11 U.S.C. § 503(b)..................................................................................................................24

11 U.S.C. § 507(a)(1) .............................................................................................................24

11 U.S.C. § 507(a)(2) .............................................................................................................24

11 U.S.C. § 507(a)(4) .............................................................................................................24

11 U.S.C. § 507(a)(7) .............................................................................................................24

11 U.S.C. § 507(a)(8) .............................................................................................................24

11 U.S.C. § 1107(a)................................................................................................................. 2

11 U.S.C. § 1108 ..................................................................................................................... 2

11 U.S.C. § 1114 ....................................................................................................................27

11 U.S.C. § 1122 ........................................................................................................ 5, 6, 7, 13

11 U.S.C. § 1122(a)................................................................................................................. 6

11 U.S.C. § 1123 .......................................................................................................... 5, 10, 13

11 U.S.C. § 1123(a)..........................................................................................................7, 8, 9

11 U.S.C. § 1123(a)(1)..........................................................................................................7, 8

11 U.S.C. § 1123(a)(2)..........................................................................................................7, 8

11 U.S.C. § 1123(a)(3)..........................................................................................................7, 8

11 U.S.C. § 1123(a)(4)............................................................................................................. 8

11 U.S.C. § 1123(a)(5)..........................................................................................................8, 9

11 U.S.C. § 1123(a)(6)............................................................................................................. 9

11 U.S.C. § 1123(a)(7)........................................................................................................9, 10

11 U.S.C. § 1123(a)(8)............................................................................................................10

11 U.S.C. § 1123(b).................................................................................................... 10, 31, 33

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11 U.S.C. § 1123(b)(1) ...........................................................................................................10

11 U.S.C. § 1123(b)(2) .....................................................................................................10, 11

11 U.S.C. § 1123(b)(3) .....................................................................................................11, 31

11 U.S.C. § 1123(b)(4) ...........................................................................................................11

11 U.S.C. § 1123(b)(5) ...........................................................................................................11

11 U.S.C. § 1123(b)(6) ............................................................................................... 11, 12, 31

11 U.S.C. § 1125 ..............................................................................................................13, 14

11 U.S.C. § 1125(a)................................................................................................................14

11 U.S.C. § 1125(b)..........................................................................................................13, 14

11 U.S.C. § 1125(c)................................................................................................................14

11 U.S.C. § 1126 .......................................................................................................... 3, 14, 17

11 U.S.C. § 1126(d)................................................................................................................15

11 U.S.C. § 1129 ................................................................................................................5, 27

11 U.S.C. § 1129(a)(1)........................................................................................................5, 13

11 U.S.C. § 1129(a)(2)............................................................................................................15

11 U.S.C. § 1129(a)(3)...........................................................................................15, 16, 17, 38

11 U.S.C. § 1129(a)(4)......................................................................................................19, 20

11 U.S.C. § 1129(a)(5)............................................................................................................21

11 U.S.C. § 1129(a)(6)............................................................................................................22

11 U.S.C. § 1129(a)(7)......................................................................................................22, 23

11 U.S.C. § 1129(a)(8)......................................................................................................23, 27

11 U.S.C. § 1129(a)(9)...........................................................................................19, 23, 24, 25

11 U.S.C. § 1129(a)(10)..........................................................................................................25

11 U.S.C. § 1129(a)(11)....................................................................................................25, 26

11 U.S.C. § 1129(a)(12)..........................................................................................................26

11 U.S.C. § 1129(a)(13)..........................................................................................................27

11 U.S.C. § 1129(a)(14)..........................................................................................................27

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11 U.S.C. § 1129(a)(15)..........................................................................................................27

11 U.S.C. § 1129(a)(16)..........................................................................................................27

11 U.S.C. § 1129(b)................................................................................... 23, 27, 28, 29, 30, 32

11 U.S.C. § 1129(c)................................................................................................................30

11 U.S.C. § 1129(d)................................................................................................................30

11 U.S.C. § 1129(e)................................................................................................................30

28 U.S.C. § 157(b)(2)(L). .......................................................................................................38

28 U.S.C. § 1930 ....................................................................................................................26

RULES

Fed. R. Bankr. P. 1015(b) ........................................................................................................ 2

Fed. R. Bankr. P. 3020(e)........................................................................................................40

OTHER AUTHORITIES

5 Collier on Bankruptcy 1129.02[11]

(15th ed. 1992)............................................................................................................26

H.R. Rep. No. 95-595,

95th Cong., 1st Sess. 412 (1977)..............................................................................5, 13

S. Rep. No. 95-989, 95th Cong.,

2d Sess. 126 (1978) .................................................................................................5, 13

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 10 of 54
1

The above-captioned debtors and debtors in possession (collectively, the “Debtors”) file

this memorandum of law (this “Memorandum”) in support of confirmation of the Third Amended 

Joint Chapter 11 Plan of Reorganization of Cinemex USA Real Estate Holding, Inc., Cinemex 

Holdings USA, Inc., and CB Theater Experience LLC (ECF No. 779) (as modified, amended, or 

supplemented from time to time, the “Plan”).2In support of confirmation of the Plan, the Debtors 

respectfully state as follows:

Preliminary Statement

1. The Debtors’ reorganization has been marked by consistent progress—and, 

ultimately, global consensus amongst key stakeholders—nearly every step of the way. Facing the 

unprecedented COVID-19 pandemic, the Debtors commenced these cases. Immediately 

thereafter, the Debtors turned their attention to building broad consensus with the rest of their 

stakeholder base, including the Official Committee of Unsecured Creditors (the “Committee”).

2. After nearly seven months of hard-fought negotiations with the Committee , 

landlords, studios, and other creditors, the Debtors have a consensual Plan, supported by the 

Committee and numerous of the Debtors’ landlords. Under the Plan, the Debtors will emerge as 

a leaner, well-capitalized company, having consummated a transformative restructuring in less 

than eight months—no small or easy task for a movie theater business in the midst of a pandemic. 

The Debtors have also worked diligently and in good faith to resolve all formal and informal 

objections to confirmation of the Plan (the “Objections” and, such parties, the “Objectors”).3 As 

of the filing of this Memorandum, all objections except that filed by MN Theaters 2006, LLC at 

 

2

 Capitalized terms used but not defined in this Memorandum have the meanings ascribed to them in the Plan. 

3

 A summary chart of Objections is attached hereto as Exhibit A (the “Objection Chart”). Many of the objections 

relate to cure amounts for executory contracts and unexpired leases. The Debtors are working with the parties to 

verify the cure amounts. The Debtors intend to request at the Confirmation Hearing that the Court schedule hearings 

to determine unresolved cure amounts approximately ten days after the conclusion of the Confirmation Hearing.

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 11 of 54
2

ECF No. 863 (“MN Theaters” and the “MN Objection”) have been substantively resolved by 

consent. As detailed herein, the Bankruptcy Court should overrule the MN Objection outright.

3. In light of the support from all key stakeholders, the Plan’s satisfaction of all 

confirmation requirements under the Bankruptcy Code, and for the reasons set forth herein and the 

evidence to be presented at the Confirmation Hearing, the Debtors respectfully request that the 

Bankruptcy Court confirm the Plan.

Background

I. PROCEDURAL BACKGROUND.

4. On the Petition Dates, each of the Debtors filed a voluntary petition for relief under 

chapter 11 of the Bankruptcy Code. The Debtors are operating their businesses and managing 

their property as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy 

Code. On April 28, 2020, the Bankruptcy Court entered an order (ECF No. 9) authorizing the joint 

administration of these chapter 11 cases pursuant to Bankruptcy Rule 1015(b). On May 22, 2020, 

the United States Trustee for the Southern District of Florida appointed the Committee (ECF No.

140).

5. On October 29, 2020, the Bankruptcy Court entered the Order (I) Approving 

Adequacy of Disclosure Statement; (II) Setting Hearing on Confirmation of Plan; (III) Approving 

Solicitation, Form of Ballot, Notices and Notice Procedures with Respect to Confirmation; (IV) 

Setting Hearing on Fee Applications; (V) Setting Various Deadlines and (VI) Describing Plan 

Proponent’s Obligations (ECF No. 777) (the “Disclosure Statement Order”). The Disclosure 

Statement Order approved, among other things, the proposed procedures for solicitation of the 

Plan and related notices, forms, and ballots (collectively, the “Solicitation Packages”).

6. The deadline for parties in interest to file Objections to confirmation of the Plan 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 12 of 54
3

was November 18, 2020, at 4:00 p.m., prevailing Eastern Time (the “Plan Objection Deadline”),

and the deadline for all Holders of Claims and Interests entitled to vote on the Plan to cast their 

ballots was November 18, 2020, at 4:00 p.m., prevailing Eastern Time (the “Voting Deadline”). 

On November 20, 2020, the Debtors filed the (a) Certificate of Proponent of Plan on Acceptances 

of Plan, Report on Amount to be Deposited, Certificate of Amount Deposited and Fee Payment of 

Fees (ECF No. 909) (the “Voting Report”), and the (b) Confirmation Declaration of Jose 

Leonardo Marti (ECF No. 910) (the “Confirmation Declaration”), which are summarized below 

in detail. The hearing on confirmation of the Plan (the “Confirmation Hearing”) is scheduled for 

November 24, 2020, at 9:30 a.m., prevailing Eastern Time. Prior to the Confirmation Hearing, the 

Debtors will submit a proposed order confirming the Plan (the “Proposed Confirmation Order”).

II. SOLICITATION AND NOTIFICATION PROCESS.

7. In compliance with the Bankruptcy Code, only Holders of Claims and Interests in 

Impaired Classes receiving or retaining property on account of such Claims or Interests were 

entitled to vote to accept or reject the Plan.4 Holders of Claims and Interests were not entitled to 

vote if their rights are Unimpaired under the Plan (in which case they were conclusively deemed 

to accept the Plan) or Impaired and not entitled to receive a distribution under the Plan (in which 

case they were conclusively deemed to reject the Plan). The voting results for Impaired Classes, 

as reflected in the Voting Report, are summarized as follows:

Class Class Name

ACCEPT REJECT

Result

Number (% 

of Voting)

Amount (% 

of Voting)

Number (% 

of Voting)

Amount (% 

of Voting)

3 Syndicated Bank Loan Claims 100% 100% 0% 0% Accept

 

4

 See 11 U.S.C. § 1126.

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 13 of 54
4

Class Class Name

ACCEPT REJECT

Result

Number (% 

of Voting)

Amount (% 

of Voting)

Number (% 

of Voting)

Amount (% 

of Voting)

4 GUC Claims 5

84.38% 70.38% 15.62% 29.62% Accept

5 Convenience Claims 100% 100% 0% 0% Accept

6 Intercompany Claims N/A N/A N/A N/A Reject

8 Interests in Cinemex Holdings N/A N/A N/A N/A Reject

8. As set forth in the Plan and in the Voting Report, Classes 1, 2, and 7 are presumed 

to accept the Plan, and Classes 3, 4, and 5 voted to accept the Plan. Classes 6 and 8 are deemed to 

reject the Plan. 

9. In addition to the facts set forth above, many of the pertinent facts related to the 

Debtors’ reorganization are set forth more exhaustively in the (i) Disclosure Statement for Third 

Amended Joint Chapter 11 Plan of Reorganization of Cinemex USA Real Estate Holding, Inc., 

Cinemex Holdings USA, Inc., and CB Theater Experience LLC (ECF No. 779) (the “Disclosure 

Statement”); (ii) the Confirmation Declaration; (iii) the Voting Report; and (iv) and testimony that 

may be proffered and/or otherwise adduced at the Confirmation Hearing. The documents and the 

testimony that may be proffered and/or adduced at the Confirmation Hearing are hereby expressly 

incorporated herein by reference. 

 

5

 The Voting Report includes the vote of MN Theaters, which voted its rejection damages claim of $7,291,599.65 

against the Plan. Voting Report, Ex. B. However, the Debtors have since assumed the relevant contracts with MN 

Theaters, thereby eliminating MN Theaters’ rejection claim. Without counting MN Theaters’ vote and rejection

damages claim, 87.1% of the number of votes and 84.9% of the amount of claims voted in Class 4 have accepted the 

Plan. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 14 of 54
5

Argument

10. To confirm the Plan, the Bankruptcy Court must find that the Debtors have satisfied 

the provisions of section 1129 of the Bankruptcy Code by a preponderance of the evidence. 6 As 

described in detail below, the Plan complies with all relevant provisions of the Bankruptcy Code 

and all other applicable law. The Plan far exceeds the preponderance of evidence standard set 

forth in the Bankruptcy Code and will be further supported by evidence that will be submitted at 

the Confirmation Hearing. The Debtors thus respectfully request that the Bankruptcy Court 

confirm the Plan.

III. THE PLAN SATISFIES EACH REQUIREMENT FOR CONFIRMATION.

A. The Plan Complies with the Applicable Provisions of the Bankruptcy Code 

(Section 1129(a)(1)).

11. Section 1129(a)(1) of the Bankruptcy Code requires that a plan comply with the 

applicable provisions of the Bankruptcy Code.7 The principal aim of this provision is to ensure 

compliance with the sections of the Bankruptcy Code governing classification of claims and 

interests and the contents of a plan of reorganization.8 Accordingly, the determination of whether 

the Plan complies with section 1129(a)(1) of the Bankruptcy Code requires an analysis of sections 

1122 and 1123 of the Bankruptcy Code.9

 

6

 In re DiMaria, 202 B.R. 634, 638 (Bankr. S.D. Fla. 1996); see Heartland Federal Savings & Loan Ass’n v. Briscoe 

Enter., Ltd. II (In re Briscoe Enter., Ltd. II), 994 F.2d 1160, 1165 (5th Cir. 1993); In re Cypresswood Land Partners, 

I, 409 B.R. 396, 422 (Bankr. S.D. Tex. Jan. 20, 2009); In re J T Thorpe Co., 308 B.R. 782, 785 (Bankr. S.D. Tex. 

2003).

7

 In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr. S.D.N.Y. 1984) (“In order for a plan of reorganization 

to pass muster for confirmation purposes, it must comply with all the requirements of chapter 11 as stated in Code § 

1129(a)(1).”).

8

 See S. Rep. No. 95-989, 95th Cong., 2d Sess. 126 (1978); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 412 (1977). 

9

 See, e.g., In re Nutritional Sourcing Corp., 398 B.R. 816, 824 (Bankr. D. Del. 2008); In re S & W Enterprise, 37 

B.R. 153, 158 n. 15 (Bankr. N.D. Ill. 1984).

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 15 of 54
6

i. The Plan Satisfies the Classification Requirements of Section 1122 of 

the Bankruptcy Code.

12. Section 1122(a) of the Bankruptcy Code provides that “a plan may place a claim or 

an interest in a particular class only if such claim or interest is substantially similar to the other 

claims or interests of such class.” Because claims only need to be “substantially” similar to be 

placed in the same class, plan proponents have broad discretion in determining to classify claims 

together.10

13. The Plan’s classification of Claims and Interests satisfies the requirements of 

section 1122 of the Bankruptcy Code because the Plan places Claims and Interests into a number 

of separate Classes, with the Claims and Interests in each Class differing from the Claims and 

Interests in each other Class in a legal or factual nature or based on other relevant criteria. 11 

Specifically, the Plan provides for the separate classification of Claims and Interests into the 

following Classes:

Class 1: Secured Claims;

Class 2: Other Priority Claims; 

Class 3: Syndicated Bank Loan Claims;

Class 4: GUC Claims;

Class 5: Convenience Claims; 

Class 6: Intercompany Claims; 

Class 7: Intercompany Interests; and

Class 8: Interests in Cinemex Holdings. 

14. Claims and Interests assigned to each particular Class described above are 

substantially similar to the other Claims or Interests in such Class. In addition, valid business, 

 

10

 Olympia & York Florida Equity Corp. v. Bank of N.Y. (In re Holywell Corp.), 913 F.2d 873, 880 (11th Cir. 1990); 

In re Porcelli, 319 B.R. 8, 10 (Bankr. M.D. Fla. 2004); see In re Sentry Operating Co. of Texas, Inc., 264 B.R. 850, 

860 (Bankr. S.D. Tex. Jun. 19, 2001) (recognizing that section 1122 is permissive of any classification scheme that is 

not specifically proscribed, and that substantially similar claims may be separately classified).

11

 Plan, Art. III; see, e.g., In re W.R. Grace & Co., 475 B.R. 34, 110 (D. Del. 2012) (“In analyzing whether claims 

within a given class are substantially similar, ‘the focus of the classification [should be on] the legal character of the 

claim as it relates to assets of the debtor.’”). 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 16 of 54
7

legal, and factual reasons justify the separate classification of the particular Claims or Interests 

into the Classes created under the Plan, and no unfair discrimination exists between or among 

Holders of Claims and Interests. Interests may be preserved under the Plan for the administrative 

convenience of ensuring the preservation of the Debtors’ corporate structure after the Effective 

Date.

15. Accordingly, the Claims or Interests assigned to each particular Class described 

above are substantially similar to the other Claims or Interests in each such Class, and the 

distinctions among Classes are based on valid business, factual, and legal distinctions. The Plan 

fully complies with and satisfies section 1122 of the Bankruptcy Code. Each of these categories 

of Claims and Interests have distinct rights under the Plan and applicable non-bankruptcy law. 

The Plan’s classifications not only serve the purpose of facilitating ease of distributions on the 

Effective Date but also acknowledge the fundamental differences between those types of Claims 

and Interests. For the foregoing reasons, the Plan satisfies section 1122 of the Bankruptcy Code. 

No party in interest asserts that this requirement has not been met.

ii The Plan Satisfies the Seven Mandatory Plan Requirements of Section 

1123(a) of the Bankruptcy Code.

16. The seven applicable requirements of section 1123(a) of the Bankruptcy Code 

generally relate to the specification of claims treatment and classification, the equal treatment of

claims within classes, and the mechanics of implementing a plan. The Plan satisfies each of these 

requirements.

17. Specification of Classes, Impairment, and Treatment 11 U.S.C. § 1123(a)(1), (2), 

and (3)). The first three requirements of section 1123(a) are that a plan specify (1) the 

classification of claims and interests, (2) whether such claims and interests are impaired or 

unimpaired, and (3) the precise nature of their treatment under the plan. The Plan, in particular 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 17 of 54
8

Article III.A-B, sets forth these specifications in detail in satisfaction of these three requirements. 

Thus, the Plan satisfies 1123(a)(1)–(3). No party asserts otherwise.

18. Equal Treatment (11 U.S.C. § 1123(a)(4)). The fourth requirement of section 

1123(a) is that a plan must “provide the same treatment for each claim or interest of a particular 

class, unless the holder of a particular claim or interest agrees to a less favorable treatment.” The 

Plan meets this requirement because Holders of Allowed Claims or Interests in each Class will 

receive the same rights and treatment as other Holders of Allowed Claims or Interests within such 

Holders’ respective Class. Thus, the Plan satisfies section 1123(a)(4).

19. Adequate Means for Implementation (11 U.S.C. § 1123(a)(5)). The fifth 

requirement of section 1123(a) of the Bankruptcy Code is that a plan must provide adequate means 

for its implementation. The Plan, together with the Disclosure Statement and the documents and 

forms of agreement included in the Plan Supplement (defined below), provides a detailed blueprint 

for the transactions contemplated by the Plan. Article IV of the Plan, in particular, sets forth the 

means for implementation of the Plan. Among other things, the Plan provides for:12

 Effectuation of the Restructuring Transactions;

 The issuance of New Common Stock;

 The sources of consideration for Plan distributions;

 The cancellation of existing securities; and 

 The authorization for the Debtors to take corporate actions necessary to effectuate 

the Plan.

20. The Plan further sets forth the other critical mechanics of the Debtors’ emergence, 

such as the vesting of assets in the Reorganized Debtors, and the settlement of Claims and Interests. 

The precise terms governing the execution of these transactions are set forth in greater detail in the 

 

12

 Plan, Art. IV.A, B, F, G, K. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 18 of 54
9

applicable definitive documents or forms of agreements included in the Plan Supplement.13 Thus, 

the Plan satisfies section 1123(a)(5). 

21. Non-Voting Stock (11 U.S.C. § 1123(a)(6)). The sixth requirement of section 

1123(a) is that a plan must contemplate a provision in the reorganized debtor’s corporate charter 

that prohibits the issuance of non-voting equity securities or, with respect to preferred stock, 

adequate provisions for the election of directors upon an event of default. Here, the Plan provides 

that the New Organizational Documents for the Reorganized Debtors will prohibit the issuance of 

non-voting stock to the extent required under section 1123(a)(6) of the Bankruptcy Code. 14 

Additionally, the form of the Amended and Restated Certificate of Incorporation of Cinemex 

Holdings USA, Inc., attached as Exhibit A to the Plan Supplement, prohibits the issuance of 

nonvoting stock, and only contains one class of common stock. Thus, the Plan complies with this 

requirement. No party has asserted otherwise.

22. Selection of Officers and Directors (11 U.S.C. § 1123(a)(7)). Section 1123(a)(7) 

requires that a plan “contain only provisions that are consistent with the interests of creditors and 

equity security holders and with public policy with respect to the manner of selection of any 

officer, director, or trustee under the plan.” The Plan provides that the GUC Claims Trustee of the 

GUC Claims Trust shall be selected by the Committee.15 Additionally, pursuant to Article IV.P 

of the Plan and the Plan Supplement, the initial Reorganized Cinemex Board will consist of three 

specified directors and a board observer. The officers of the Reorganized Cinemex Holdings USA, 

 

13

 See Notice of Filing of Plan Supplement Related to Third Amended Joint Chapter 11 Plan of Reorganization of 

Cinemex USA Real Estate Holdings, Inc., Cinemex Holdings USA, Inc. and CB Theater Experience LLC (ECF No. 

885) (as modified, amended, or supplemented from time to time, the “Plan Supplement”).

14

 Plan, Art. IV.O.

15

 Plan at 8.

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 19 of 54
10

Inc. are also listed in the Plan Supplement.16 Thus, the Plan satisfies the requirements of section 

1123(a)(7) of the Bankruptcy Code. No party has asserted otherwise.

23. Treatment of Earnings and Future Income (11 U.S.C. § 1123(a)(8)). Section 

1123(a)(8) applies to cases where the debtor is an individual, and, therefore, is inapplicable to the 

Debtors and the Plan. 

iii The Plan Contains Permissible Provisions Pursuant to Section 1123(b) 

of the Bankruptcy Code.

24. Impairment/Unimpairment of Claims/Equity Interests (11 U.S.C. § 1123(b)(1)). 

Section 1123(b)(1) of the Bankruptcy Code states that a Plan may “impair or leave unimpaired any 

class of claims, secured or unsecured, or of interests.” As discussed above, Claims and Interests 

in Classes 3, 4, 5, 6, and 8 are impaired. Claims and Interests in Classes 1, 2, and 7 are unimpaired. 

Therefore, the Plan complies with § 1123(b)(1).

25. Assumption of Executory Contracts and Unexpired Leases (11 U.S.C. § 1123(b)(2)). 

Under section 1123(b)(2) of the Bankruptcy Code, a plan may, subject to section 365, “provide for 

the assumption, rejection, or assignment of any executory contract or unexpired lease of the debtor 

not previously rejected under such section.” Pursuant to Article V.A of the Plan, all executory 

contracts or unexpired leases of the Debtors, shall be deemed assumed in accordance with the 

provisions and requirements of §§ 365 and 1123 of the Bankruptcy Code as of the Effective Date, 

other than those that: (i) were previously assumed, assumed and assigned, or rejected by the 

Debtors; (ii) are identified on the Rejected Executory Contract and Unexpired Lease List; or (iii) 

are the subject of a motion to reject that is pending on the Confirmation Date. Moreover, pursuant 

to the Stock Purchase Agreement, the Purchase Price includes the payment of cure costs related to 

 

16

 Plan Supplement, Ex. F. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 20 of 54
11

assumption of certain go-forward leases and executory contracts.17 Therefore, the Plan complies 

with section 1123(b)(2).

26. Settlement/Preservation of Claims (11 U.S.C. § 1123(b)(3). A plan may provide 

for the settlement or adjustment of any claim or interest belonging to the debtor or the estate, or 

for the “retention and enforcement by the debtor, by the trustee, or by the representative of the 

estate appointed for such purpose of any such claim or interest.” Article IV.S of the Plan provides 

for the preservation of claims by the Reorganized Debtors. Article III.H of the Plan contains a 

waiver of all Avoidance Actions for the benefit of all Holders of GUC Claims and Holders of 

Syndicated Bank Loan Claims. The Debtors have submitted evidence that these Plan provisions 

are in the appropriate and in the best interests of the Debtors, their estates, Creditors, and parties 

in interest. 18 No party has asserted otherwise. Therefore, the Plan complies with section 

1123(b)(3). 

27. Sale of Property of the Estate and Modification of Creditor Rights (11 U.S.C. § 

1123(b)(4), (5)). Section 1123(b)(4) of the Bankruptcy Code states that a plan may provide for 

the sale of all or substantially all of the property of the estate, and section 1123(b)(5) provides that 

a plan may modify the rights of holders of certain secured claims, unsecured claims, or leave 

unaffected the rights of holders of any class of claims. The Plan does not provide for the sale of 

all or substantially all of the property of the estate, nor does it modify the rights of holders of 

secured claims. Pursuant to the Plan, holders of GUC Claims are impaired. Thus, section 

1123(b)(4) does not apply, and the Plan permissibly impairs GUC Claims under section 1123(b)(5). 

28. Releases and Exculpations (11 U.S.C. § 1123(b)(6)). Section 1123(b)(6) of the 

 

17

 ECF No. 885 (Plan Supplement, Ex. D); see 11 U.S.C. § 365(b)(1). 

18

 Confirmation Declaration ¶ 13(c). 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 21 of 54
12

Bankruptcy Code provides that a plan may “include any other appropriate provision not 

inconsistent with the applicable provisions of [the Bankruptcy Code].” Article VIII.D-E of the 

Plan contain release and exculpation provisions. The release provision in Article VIII.D of the 

Plan provides for a release of each Released Party (as defined in the Plan) but provides parties an 

opportunity to opt out of such releases. Additionally, the release provision in Article VIII.D of the 

Plan does not operate as a release by a Holder of a GUC Claim against Grupo Cinemex, Operadora 

De Cinemas, S.A. DE C.V. or any other non-Debtor Entity arising under or related to any claim, 

right or defense, that such Holder of a GUC Claim may hold against such non-Debtor arising from 

or relating to any contractual obligations of such non-Debtor to a Holder of a GUC Claim. 

29. The exculpation provision in Article VIII.E of the Plan limits liability arising out 

of postpetition acts and omissions of the Debtors and certain parties related to them. The 

exculpation provision expressly carves out and does not apply to any claims against any of the 

exculpated parties resulting from acts or omissions determined by a court to have constituted actual 

fraud, willful misconduct, or gross negligence. Moreover, the exculpation provision in Article 

VIII.E of the Plan does not release or exculpate any non-Debtor Entity from its obligations to 

satisfy any claim held by a Holder of a Claim for compliance with and satisfaction of guarantees 

or payment assurances given in connection with any Executory Contracts and Unexpired Leases. 

30. These release and exculpation provisions are integral to the Plan and the 

compromises contained in the Plan19 and thus comport with § 1123(b)(6) of the Bankruptcy 

Code.20

 

19

 Confirmation Declaration ¶ 13(e). 

20

 See supra § IV. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 22 of 54
13

31. Because the Plan complies with section 1122 and 1123 of the Bankruptcy Code, it 

also satisfies the confirmation requirements set forth in section 1129(a)(1).

B. The Debtors Have Complied with the Applicable Provisions of the 

Bankruptcy Code (Section 1129(a)(2)).

32. Section 1129(a)(2) of the Bankruptcy Code requires that plan proponents comply 

with the applicable provisions of the Bankruptcy Code. Case law and legislative history indicate

this section principally reflects the disclosure and solicitation requirements of section 1125 of the 

Bankruptcy Code, 21 which prohibits the solicitation of plan votes without a court-approved 

disclosure statement.22

i. The Debtors Complied with Section 1125 of the Bankruptcy Code.

33. Section 1125 of the Bankruptcy Code prohibits the solicitation of acceptances or 

rejections of a plan of reorganization “unless, at the time of or before such solicitation, there is 

transmitted to such holder the plan or a summary of the plan, and a written disclosure statement 

approved, after notice and a hearing, by the court as containing adequate information.” Section 

1125 of the Bankruptcy Code ensures that parties in interest are fully informed regarding the 

debtor’s condition so they may make an informed decision whether to approve or reject a plan. 23

34. Section 1125 of the Bankruptcy Code is satisfied here. Before the Debtors solicited 

 

21

 Toy & Sports Warehouse, 37 B.R. at 149; In re Texaco, Inc., 84 B.R. 893, 907 (Bankr. S.D.N.Y. 1988), appeal 

dismissed, 92 B.R. 38 (S.D.N.Y. 1988) (“The principal purpose of section 1129(a)(2) is to assure that the proponents 

have complied with the requirements of section 1125 in the solicitation of acceptances to the plan.”); Cypresswood 

Land Partners, 409 B.R. at 424 (“Bankruptcy courts limit their inquiry under § 1129(a)(2) to ensuring that the plan 

proponent has complied with the solicitation and disclosure requirements of § 1125.”); see H.R. Rep. No. 95-595, at 

412 (1977); S. Rep. No. 95-989, at 126 (1978). 

22

 11 U.S.C. § 1125(b).

23

 See Matter of Cajun Elec. Power Co-op., Inc., 150 F.3d 503, 518 (5th Cir. 1998) (finding that section 1125 of the 

Bankruptcy Code obliges a debtor to engage in full and fair disclosure that would enable a hypothetical reasonable 

investor to make an informed judgment about the plan).

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 23 of 54
14

votes on the Plan, the Bankruptcy Court entered the Disclosure Statement Order. 24 The 

Bankruptcy Court also approved the contents of the Solicitation Packages provided to Holders of 

Claims entitled to vote on the Plan, the notices provided to parties not entitled to vote on the Plan, 

and the deadlines for voting on and objecting to the Plan.25 The Debtors, through their Voting 

Agent, complied with the content and delivery requirements of the Disclosure Statement Order, 

thereby satisfying sections 1125(a) and (b) of the Bankruptcy Code.26 The Debtors also satisfied 

section 1125(c) of the Bankruptcy Code, which provides that the same disclosure statement must 

be transmitted to each holder of a claim or interest in a particular class. Here, the Debtors caused 

the same Disclosure Statement to be transmitted to all parties entitled to vote on the Plan.27

35. Based on the foregoing, the Debtors have complied in all respects with the 

solicitation requirements of section 1125 of the Bankruptcy Code and the Disclosure Statement 

Order. No party has asserted otherwise.

ii. The Debtors Complied with Section 1126 of the Bankruptcy Code.

36. Section 1126 of the Bankruptcy Code provides that only holders of allowed claims 

and equity interests in impaired classes that will receive or retain property under a plan on account 

of such claims or equity interests may vote to accept or reject a plan.28 Accordingly, the Debtors 

did not solicit votes on the Plan from the following Classes:

Class Claim or Interest Status Voting Rights

1 Secured Claims Unimpaired Not Entitled to Vote (Deemed to Accept)

 

24

 See Disclosure Statement Order (ECF No. 777).

25

 See id.

26

 See Certificate of Service (ECF No. 903).

27

 See id.

28

 See 11 U.S.C. § 1126.

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 24 of 54
15

2 Other Priority Claims Unimpaired Not Entitled to Vote (Deemed to Accept)

6 Intercompany Claims Impaired Not Entitled to Vote (Deemed to Reject)

7 Intercompany Interests Unimpaired Not Entitled to Vote

8 Interests in Cinemex Holdings Impaired Not Entitled to Vote (Deemed to Reject)

37. The Debtors solicited votes only from Holders of Allowed Claims in Classes 3, 4,

and 5 (collectively, the “Voting Classes”), because each of these Classes is Impaired or could 

potentially have been be Impaired and entitled to receive a distribution under the Plan.29 The 

Voting Report reflects the results of the voting process in accordance with section 1126 of the 

Bankruptcy Code.30 As set forth in the Voting Report and summarized above, Classes 3, 4, and 5 

voted to accept the Plan. Based on the foregoing, the Debtors have satisfied the requirements of 

section 1129(a)(2). No party asserts otherwise.

C. The Debtors Proposed the Plan in Good Faith and Not by Any Means 

Forbidden by Law (Section 1129(a)(3)).

38. Section 1129(a)(3) of the Bankruptcy Code requires that the proponent of a plan 

propose the plan “in good faith and not by any means forbidden by law.” In assessing the good

faith standard, courts in the Eleventh Circuit consider whether the plan was proposed with “the 

legitimate and honest purpose to reorganize and has a reasonable hope of success.” 31 A plan must 

 

29

 See Plan, Art. III.A–B.

30

 A class of claims has accepted a plan if such plan has been accepted by creditors, other than any entity designated 

under subsection (e) of section 1126 of the Bankruptcy Code, that hold at least two-thirds in amount and more than 

one-half in number of the allowed claims of such class held by creditors, other than any entity designated under 

subsection (e) of section 1126 of the Bankruptcy Code, that have accepted or rejected such plan. 1 A class of interests 

has accepted a plan if such plan has been accepted by holders of such interests, other than any entity designated under 

subsection (e) of this section, that hold at least two-thirds in amount of the allowed interests of such class held by 

holders of such interests, other than any entity designated under subsection (e) of this section, that have accepted or 

rejected such plan. 11 U.S.C. §1126(d).

31

 In re Piper Aircraft Corp., 244 F.3d 1289, 1300 (11th Cir. 2001) (citing McCormick v. Banc One Leasing Corp., 

49 F.3d 1524, 1526 (11th Cir. 1995)); see In re Seaside Eng’g & Surveying, Inc., 780 F.3d 1070, 1081-82 (11th Cir. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 25 of 54
16

also achieve a result consistent with the Bankruptcy Code.32 The purpose of chapter 11 is to enable 

a distressed business to reorganize and achieve a fresh start.33 Other purposes include “preserving 

jobs in the community, allowing the business to continue to operate instead of liquidate, and 

achieving a consensual resolution between debtors and creditors.”34 

39. Whether a plan is proposed in good faith must be determined in light of the totality 

of the circumstances of the cases.35 The focus of the inquiry under section 1129(a)(3) is not on all 

facts relating to the conduct of the plan proponent.36 In fact, section 1129(a)(3) of the Bankruptcy 

Code “requires only that the plan’s proposal, as opposed to the contents of the plan, be in good 

faith and in compliance with all non-bankruptcy laws.”37 Thus, plans that provide some benefit to 

insiders are proposed in good faith so long as they allow for non-shareholder employees to 

maintain jobs and provide distributions to creditors over time.38 

40. Here, the Plan easily satisfies the standards set forth in section 1129(a)(3). It 

 

2015) (“[C]ourts have interpreted ‘good faith’ as requiring that there is a reasonable likelihood that the plan will 

achieve a result consistent with the objectives and purposes of the Code.”); In re Sun Country Dev., Inc., 764 F.2d 

406, 408 (5th Cir. 1985).

32

 Seaside, 780 F.3d at 1082; see In re Block Shim Dev. Company-Irving, 939 F.2d 289, 292 (5th Cir. 1991).

33

 Sun Country Dev., 764 F.2d at 408 (“The requirement of good faith must be viewed in light of the totality of 

circumstances surrounding establishment of a [c]hapter 11 plan, keeping in mind the purpose of the Bankruptcy Code 

to give debtors a reasonable opportunity to make a fresh start.”).

34

 Seaside, 780 F.3d at 1082. 

35

 McCormick, 49 F.3d at 1526; see Pub. Fin. Corp. v. Freeman, 712 F.2d 219 (5th Cir. 1983); Cypresswood Land 

Partners, I, 409 B.R. at 425.

36

 Piper, 244 F.3d at 1300; In re SM 104 Ltd., 160 B.R. 202, 244 (Bankr. S.D. Fla. 1993) (courts generally do not 

consider prepetition conduct in section 1129(a)(3) analysis).

37

 In re General Dev. Corp., 135 B.R. 1002, 1007 (Bankr. S.D. Fla. 1991) (citations omitted).

38

 Seaside, 780 F.3d at 1082; see In re United Marine, Inc., 197 B.R. 942, 947 (Bankr. S.D. Fla. 1996) (plan 

proposed in good faith because it saved jobs and permitted a business to continue to operate, and achieved a 

consensual resolution of priority and tax claims). 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 26 of 54
17

permits the Debtors to emerge from the bankruptcy cases as operating companies that can continue 

to employ hundreds (and perhaps thousands) of people in the locations with profitable theaters. 39 

It embodies hard-fought and hard-negotiated compromises with major creditor constituencies, 

including the Committee, the studios, and numerous landlords.40 It pays several creditors in full 

(the holders of assumed leases), and pays numerous other creditors a substantial distribution (11.4-

15.3%).41 It preserves claims for the benefit of general unsecured creditors through the GUC Trust, 

which may provide additional recoveries. And it has the support of the Committee, which has 

fiduciary obligations to the body of general unsecured creditors.42 

41. The sole objection on this point was filed by MN Theaters (ECF No. 863). It makes 

three arguments, all of which lack merit, are unsupported by evidence, and are based solely on 

conjecture. In fact, at the November 20, 2020 hearing, the Court rejected much of MN Theaters’ 

section 1129(a)(3) argument, stating that it was not well-founded as a matter of law. 

42. First, MN Theaters’ speculates that the Plan is “a vehicle to further the interests of 

Grupo ... and its other non-debtor affiliates.”43 Not only is the premise of the argument faulty, but 

the robust record before this Court belies this argument. For example, MN Theaters asserts that 

 

39

 Disclosure Statement at 2. 

40

 Id. at 48-49. 

41

 Id.

42

 Disclosure Statement at 2. The two cases that MN Theaters cites in its objection are entirely distinguishable. In 

In re Malkus, 2004 WL 3202212, at *4 (Bankr. M.D. Fla. Nov. 15, 2004), the court denied confirmation because the 

debtors’ president had failed to investigate preference claims, and shareholders kept their interests while unsecured 

creditors received nothing. Here, claims are being compromised under the Plan, and Wine & Roses is providing 

substantial consideration of approximately $70 million in exchange for the Debtors’ stock. Similarly, In re Davis 

Heritage GP Holdings, LLC, 443 B.R. 448, 462 (Bankr. N.D. Fla. 2011) is inapposite, because unlike here, that plan 

provided no benefit to non-insider creditors. 

43

 MN Theaters Objection ¶¶ 2, 26-30. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 27 of 54
18

Grupo has contributed no value in these chapter 11 cases,44 even while acknowledging that Grupo

advanced funds during these cases that enabled the Debtors to continue their operations.

45 It also 

asserts, without any evidence, that Wine & Roses is Grupo’s alter ego.46 And it states that Wine 

& Roses is not providing any “meaningful consideration” for the Debtors’ stock or for the Plan’s 

releases and exculpations,47 speculating that Wine & Roses will receive more value than it is 

paying.

48 These arguments, however, simply ignore the various disclosures in both the Plan and 

the Disclosure Statement discussing approximately $70 million in value provided by Wine &

Roses under the Stock Purchase Agreement, the terms of the Stock Purchase Agreement, and the 

extensive negotiations with the Committee, which supports the Plan.

49

 

43. Second, MN Theaters argues that the Plan cannot be confirmed because, in its view, 

the Plan aids and abets violations of a prejudgment attachment it obtained in the District Court 

Case (“Attachment Order”).

50 According to MN Theaters, if the Debtors pay back Grupo for the 

DIP Loan, Grupo will “simply take that distribution over the border to Mexico, never to be seen 

 

44

 MN Theaters Objection ¶ 26.

45

 Id. ¶ 19. 

46

 Id. ¶ 26. 

47

 Id. ¶¶ 26-29.

48

 MN Theaters’ references to net operating losses (“NOLs”) is curious. Id. ¶¶ 27, 34. It suggests that NOLs may 

provide more value to Wine & Roses than the value it is providing in exchange for the Debtors’ stock. It also argues 

that NOLs exist for the benefit of Grupo, and if the Plan preserves that value for Wine & Roses for no consideration, 

that is a fraudulent transfer by Grupo. Of course, MN Theaters cites no law in support of this argument. MN 

Theaters’ argument ignores that Grupo does not own the NOLs, Cinemex Holdings USA holds the NOLs as the 

parent entity in the corporate tax group. See Disclosure Statement at 66 (Debtors carry NOLs, not Grupo). In re 

Marvel Entm't Grp., Inc., 273 B.R. 58, 85 (D. Del. 2002) (dismissing case alleging fraudulent transfer of NOLs 

within corporate group); United Dominion Indus.Inc. v. United States, 532 U.S. 822 (2001) (concept of separate 

NOLs for individual members of a consolidated tax group does not exist). 

49

 See, e.g., Disclosure Statement at 47-48. 

50

 MN Theaters Objection ¶¶ 32-34. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 28 of 54
19

again,” and allowing the DIP Claim to be paid to Grupo rather than the U.S. Marshal “effectively 

licenses” Grupo to refuse to comply with the Attachment Order.51 That argument is frankly absurd. 

MN Theaters does not cite any evidence demonstrating that the Debtors are required to do anything 

under the Attachment Order (indeed, any provision in the Attachment Order requiring the Debtors 

to do anything would have violated the automatic stay). More importantly, this argument is 

rendered moot by the Debtors’ agreement to place any proceeds due to Grupo in escrow pending 

further orders of the District Court in the Southern District of New York. 

44. Last, MN Theaters makes the remarkable argument that the Plan authorizes 

fraudulent transfers because it contains language that holders of administrative claims must be paid 

in full unless the holder of that claim has agreed to less favorable treatment.52 MN Theaters is 

apparently unaware of section 1129(a)(9), which states that administrative claims must be paid in 

full “[e]xcept to the extent that the holder of a particular claim has agreed to a different treatment 

of such claim.”53 It defies logic to suggest that a plan provision based on a statutory requirement

lacks good faith or is forbidden by law. 

45. For these reasons, MN Theaters’ objection lacks merit, and the Plan meets the 

requirements of section 1129(a)(3). 

D. The Plan Provides That the Debtors’ Payment of Professional Fees and 

Expenses Are Subject to Court Approval (Section 1129(a)(4)).

46. Section 1129(a)(4) of the Bankruptcy Code requires that certain fees and expenses 

paid by the plan proponent, by the debtor, or by a person receiving distributions of property under 

 

51

 Id. ¶¶ 18, 32. 

52

 Id. ¶ 33. 

53

 11 U.S.C. § 1129(a)(9). 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 29 of 54
20

the plan, be approved by the Bankruptcy Court as reasonable or subject to approval by the 

Bankruptcy Court as reasonable. In other words, the Plan Proponents must disclose to the Court 

all professional fees and expenses, and such fees and expenses must be subject to Court approval. 54 

When routine legal fees and expenses that have been approved as reasonable in the first instance, 

“the court will ordinarily have little reason to inquire further with respect to the amount charged.” 55

47. In general, the Plan provides that Professional Fee Claims and corresponding 

payments are subject to prior Bankruptcy Court approval and the reasonableness requirements 

under sections 328 or 330 of the Bankruptcy Code.56 Moreover, Article II.A of the Plan provides 

that all final requests for payment of Professional Fee Claims must be filed and served in 

accordance with the Disclosure Statement Order.

57

 On or before the Effective Date, the Debtors 

will escrow funds sufficient to pay all Professional Fee Claims not paid as of the Effective Date, 

and payment of such fees will be made from the Professional Fee Escrow Account pending 

Bankruptcy Court approval.58 Further, the Plan provides for the payment of Allowed DIP Loan 

Claims.

59

 For the foregoing reasons, the Plan complies with section 1129(a)(4) of the Bankruptcy 

Code. No party has asserted otherwise.

 

54

 See In re Lisanti Foods, Inc., 329 B.R. 491, 503 (D. N.J. 2005) (“Pursuant to § 1129(a)(4), a plan should not be 

confirmed unless fees and expenses related to the Plan have been approved, or are subject to the approval, of the 

Bankruptcy Court.”).

55

 See Cajun Elec. Power Co-op., 150 F.3d at 517-18.

56

 Plan, Art. II.A.2. 

57

 Id.

58

 Plan, Art. II.A.2(b). 

59

 Plan, Art. II.C. 

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E. The Debtors Have Complied with the Bankruptcy Code’s Governance 

Disclosure Requirement (Section 1129(a)(5)).

48. The Bankruptcy Code at section 1129(a)(5)(A)(i) requires the proponent of a plan 

to disclose the identity and affiliation of any individual proposed to serve as a director or officer 

of the debtor or a successor to the debtor under the plan. Section 1129(a)(5)(A)(ii) requires that 

the appointment or continuance of such officers and directors be consistent with the interests of 

creditors and equity security holders and with public policy. Lastly, section 1129(a)(5)(B) requires 

that the plan proponent have disclosed the identity of insiders to be retained by the reorganized 

debtor and the nature of any compensation for such insider. Courts have held that these provisions 

ensure that the post-confirmation governance of a reorganized debtor is in “good hands.”60

49. In this case, the Plan satisfies section 1129(a)(5)(A)(i) of the Bankruptcy Code 

because the Debtors have, to the extent known, disclosed the identities and affiliations of all 

persons proposed to serve on the Reorganized Cinemex Board, as well as the post-reorganization 

management of Cinemex Holdings USA, Inc. in Exhibit F to the Plan Supplement. The Plan 

Supplement also discloses the identities of each officer and director. The Debtors believe that 

control of the Reorganized Debtors by the proposed individuals or individuals to be appointed in 

accordance with the Plan and New Organizational Documents will be consistent with public 

policy. 61 Thus, the Plan complies with section 1129(a)(5) of the Bankruptcy Code. No party 

asserts otherwise.

 

60

 See In re Landing Assocs., 157 B.R. 791, 817 (Bankr. W.D. Tex. Jul. 19, 1993) (“In order to lodge a valid objection 

under § 1129(a)(5), a creditor must show that a debtor’s management is unfit or that the continuance of this 

management post-confirmation will prejudice the creditors”).

61

 See Confirmation Declaration ¶ 17. 

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F. The Plan Does Not Require Government Regulatory Approval of Rate 

Changes (Section 1129(a)(6)).

50. Section 1129(a)(6) of the Bankruptcy Code permits confirmation only if any 

regulatory commission that has or will have jurisdiction over a debtor after confirmation has 

approved any rate change provided for in the plan. No such rate changes are provided for in the 

Plan. Thus, section 1129(a)(6) of the Bankruptcy Code is inapplicable to these chapter 11 cases. 

No party has asserted otherwise.

G. The Plan Is in the Best Interests of Holders of Claims and Interests (Section 

1129(a)(7)).

51. The best interests of creditors test in section 1129(a)(7) requires that, “[w]ith 

respect to each impaired class of claims or interests,” members of such class that have not accepted 

the plan will receive at least as much as they would in a hypothetical chapter 7 liquidation. The 

best interests test applies to each non-consenting member of an impaired class, and is generally 

satisfied through a comparison of the estimated recoveries for a debtor’s stakeholders in a 

hypothetical chapter 7 liquidation of that debtor’s estate against the estimated recoveries under 

that debtor’s plan of reorganization.62

52. The Plan designates Classes 3, 4, 5, 6, and 8 as impaired. With respect Classes 3 

and 5, each holder of a claim in such Classes that voted accepted the Plan.63 With respect to the 

 

62

 Bank of Am. Nat’l Tr. & Sav. Ass’n v. 203 N. LaSalle St. P’ship, 526 U.S. 434, 442 n.13 (1999) (“The ‘best interests’ 

test applies to individual creditors holding impaired claims, even if the class as a whole votes to accept the plan.”); In 

re Texas Extrusion Corp., 844 F.2d 1142, 1159 n. 23 (5th Cir. 1988) (stating that under section 1129(a)(7) of the 

Bankruptcy Code a bankruptcy court was required to determine whether impaired claims would receive no less under 

a reorganization than through a liquidation); see In re Neff, 60 B.R. 448, 452 (Bankr. N.D. Tex. 1985) aff’d, 785 F.2d 

1033 (5th Cir. 1986) (stating that “best interests” of creditors means “creditors must receive distributions under the 

[c]hapter 11 plan with a present value at least equal to what they would have received in a [c]hapter 7 liquidation of 

the Debtor as of the effective date of the [p]lan”); In re Lason, Inc., 300 B.R. 227, 232 (Bankr. D. Del. Oct. 15, 2003) 

(“Section 1129(a)(7)(A) requires a determination whether ‘a prompt chapter 7 liquidation would provide a better 

return to particular creditors or interest holders than a chapter 11 reorganization.’”).

63

 11 U.S.C. § 1129(a)(7)(A)(i). 

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remaining holders of Claims in Classes 3 and 5, and with respect to Classes 4, 5, 6, and 8, as 

demonstrated in the Debtors’ Liquidation Analysis, all Holders of Claims and Interests in such

Classes will recover at least as much under the Plan as they would in a hypothetical chapter 7 

liquidation.64 That is because each holder would receive 0% of their Claims in a liquidation, 

whereas under the Plan, each holder of a Claim in Classes 3, 4, and 5 will receive far more, while 

holders of Claims or Interests in Classes 6 and 8 will receive the same amount.65 

53. Accordingly, the Plan satisfies section 1129(a)(7) of the Bankruptcy Code and the 

best interests test. No party has asserted otherwise. 

H. The Plan Is Confirmable Notwithstanding the Requirements of Section 

1129(a)(8) of the Bankruptcy Code.

54. Section 1129(a)(8) of the Bankruptcy Code requires that each class of claims or 

interests must either accept a plan or be unimpaired under a plan. As discussed above, Classes 1, 

2, and 7 are unimpaired under the Plan. Classes 3, 4, and 5, which are impaired have 

overwhelmingly accepted the Plan. Only Classes 6 and 8 are impaired and have not accepted the 

Plan. Although the Plan does not satisfy section 1129(a)(8) of the Bankruptcy Code as to Classes 

6 and 8, the Plan is confirmable nonetheless because it satisfies section 1129(b) of the Bankruptcy 

Code with respect to those Classes, as discussed below.

I. The Plan Complies With Statutorily Mandated Treatment of Administrative 

and Priority Tax Claims (Section 1129(a)(9)).

55. Section 1129(a)(9) of the Bankruptcy Code requires that certain priority claims be 

paid in full on the effective date of a plan and that the holders of certain other priority claims 

receive deferred cash payments. In particular, pursuant to section 1129(a)(9)(A) of the Bankruptcy 

 

64

 See Disclosure Statement, Ex. D. 

65

 Disclosure Statement at 11-12. 

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Code, holders of claims of a kind specified in section 507(a)(2) of the Bankruptcy Code—

administrative claims allowed under section 503(b) of the Bankruptcy Code—must receive on the 

effective date cash equal to the allowed amount of such claims. Section 1129(a)(9)(B) of the 

Bankruptcy Code requires that each holder of a claim of a kind specified in section 507(a)(1) or 

(4) through (7) of the Bankruptcy Code—which generally include domestic support obligations , 

wage, employee benefit, and deposit claims entitled to priority—must receive deferred cash 

payments of a value, as of the effective date of the plan, equal to the allowed amount of such claim 

(if such class has accepted the plan), or cash of a value equal to the allowed amount of such claim 

on the effective date of the plan (if such class has not accepted the plan). Finally, section 

1129(a)(9)(C) provides that the holder of a claim of a kind specified in section 507(a)(8) of the 

Bankruptcy Code—i.e., priority tax claims—must receive cash payments over a period not to 

exceed five years from the petition date, the present value of which equals the allowed amount of 

the claim.

56. The Plan satisfies section 1129(a)(9) of the Bankruptcy Code. First, Article II.A 

of the Plan satisfies section 1129(a)(9)(A) of the Bankruptcy Code, because it provides that each 

Holder of an Allowed Administrative Claim of the kind specified in section 1129(a)(9)(A) of the 

Bankruptcy Code will receive payment in full in cash of the due and unpaid portion of its Allowed

Administrative Claim on the Effective Date, or as soon as reasonably practicable thereafter, or at 

such other time as defined in Article II.A of the Plan. Second, the Plan satisfies section 

1129(a)(9)(B) of the Bankruptcy Code because no Holders of the types of Claims specified by 

1129(a)(9)(B) are Impaired under the Plan.66 Finally, Article II.B of the Plan satisfies section 

1129(a)(9)(C) of the Bankruptcy Code because it specifically provides that each Holder of an 

 

66

 See Plan, Art. III.B.

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Allowed Priority Tax Claim shall be treated in accordance with the terms set forth in section 

1129(a)(9)(C) of the Bankruptcy Code. Thus, the Plan satisfies each of the requirements set forth 

in section 1129(a)(9) of the Bankruptcy Code.

J. At Least One Impaired Class of Claims Has Accepted the Plan, Excluding 

the Acceptances of Insiders (Section 1129(a)(10)).

57. Section 1129(a)(10) of the Bankruptcy Code provides that, to the extent there is an 

impaired class of claims, at least one impaired class of claims must accept the plan “without 

including any acceptance of the plan by any insider.” Pursuant to the plain language of section 

1129(a)(10), only one class of impaired claims need accept the plan, even if the plan is proposed 

in a multi-debtor case.67 As detailed herein and in the Voting Report, Class 3, 4, and 5 have voted 

to accept the Plan, exclusive of any acceptances by insiders. Accordingly, the Plan satisfies the

requirements of section 1129(a)(10) of the Bankruptcy Code. No party has asserted otherwise. 

K. The Plan Is Feasible and Is Not Likely to Be Followed by the Need for 

Further Financial Reorganization (Section 1129(a)(11)).

58. Feasibility refers to section 1129(a)(11)’s requirement that plan confirmation must 

not be “likely to be followed by the liquidation, or the need for further financial reorganization, of 

the debtor ... , unless such liquidation or reorganization is proposed in the plan.” To satisfy this 

standard, a plan need only have a “reasonable probability of success.”68 Success need not be 

guaranteed.69 Indeed, a relatively low threshold of proof will satisfy § 1129(a)(11) so long as 

 

67

 Matter of Transwest Resort Props., Inc., 881 F.3d 724 (9th Cir. 2018); In re Transwest Resort Props., Inc., 554 

B.R. 894, 899-901 (D. Ariz. 2016); In re Station Casinos, Inc., 2010 WL 11492265 (Bankr. D. Nev. Aug. 27, 2010); 

JPMorgan Chase Bank, N.A. v. Charter Commc’ns Operating, LLC (In re Charter Commc’ns), 419 B.R. 221, 266 

(Bankr. S.D.N.Y. 2009); In re Enron Corp., 2004 WL 6075307 (Bankr. S.D.N.Y. July 15, 2004); In re SGPA, Inc. , 

2001 WL 34750646 (Bankr. M.D. Pa. Sept. 28, 2001). 

68

 In re T-H New Orleans Ltd. P’ship, 116 F.3d 790, 801 (5th Cir. 1997) (quoting In re Landing Assocs., Ltd., 157 

B.R. 791, 820 (Bankr. W.D. Tex. 1993)); In re Armstrong World Indus., Inc., 348 B.R. 136, 167 (D. Del. 2006).

69

 In re One Times Square Assocs. Ltd. P'ship, 159 B.R. 695, 709 (Bankr. S.D.N.Y. 1993) (“‘It is not necessary that 

the success be guaranteed, but only that the plan present a workable scheme of reorganization and operation from 

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26

adequate evidence supports a finding of feasibility.70 In particular, “[w]here the projections are 

credible, based upon the balancing of all testimony, evidence, and documentation, even if the 

projections are aggressive, the court may find the plan feasible.”71 “The mere prospect of financial 

uncertainty cannot defeat confirmation on feasibility grounds.”72

59. The Plan is feasible. As reflected in the Financial Projections,73 the escrows 

required to be funded under the Stock Purchase Agreement, and the provision for funding of the 

GUC Claims Trust under the Plan, the Debtors, the Reorganized Debtors, or the GUC Claims 

Trust, as the case may be, will have sufficient cash on hand and available cash to pay the amounts 

required to be paid on the Effective Date and under the Plan. Thus, the Plan satisfies section 

1129(a)(11) of the Bankruptcy Code. No party asserts otherwise.

L. The Plan Provides for the Payment of All Fees Under 28 U.S.C. § 1930 

(Section 1129(a)(12)).

60. The Bankruptcy Code at section 1129(a)(12) requires the payment of all fees 

payable under 28 U.S.C. § 1930. The Plan includes an express provision requiring payment of all 

such fees at Article XII.D. The Plan, therefore, complies with section 1129(a)(12) of the 

Bankruptcy Code. No party has asserted otherwise.

 

which there may be a reasonable expectation of success.’” (quoting 5Collier on Bankruptcy 1129.02[11], at 1129-54 

(15th ed. 1992))).

70

 In re Star Ambulance Service, LLC, 540 B.R. 251, 266 (Bankr. S.D. Tex. Aug. 24, 2015).

71

 T-H New Orleans, 116 F.3d at 802; In re The Leslie Fay Cos., Inc., 207 B.R. 764, 789 (Bankr. S.D.N.Y. 1997). 

72

 In re Drexel Burnham Lambert Group Inc., 138 B.R. 723, 762 (Bankr. S.D.N.Y. 1992); see also In re IPC Atlanta 

Ltd. P’Ship, 142 B.R. 547, 559-60 (Bankr. N.D. Ga. 1992).

73

 Disclosure Statement, Ex. E. 

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M. The Plan Provides for the Payment of All Retiree Benefits (Section 

1129(a)(13)).

61. Pursuant to section 1129(a)(13) of the Bankruptcy Code, and as provided in Article 

IV.R of the Plan, the Reorganized Debtors will continue to pay all obligations on account of retiree 

benefits (as such term is used in section 1114 of the Bankruptcy Code) on and after the Effective 

Date in accordance with applicable law. As a result, the requirements of section 1129(a)(13) of 

the Bankruptcy Code are satisfied. 

N. Section 1129(a)(14) Through Section 1129(a)(16) of the Bankruptcy Code Do 

Not Apply to the Plan.

62. A number of the Bankruptcy Code’s confirmation requirements are inapplicable to 

the Plan. Section 1129(a)(14) of the Bankruptcy Code does not apply because the Debtors are not

subject to any domestic support obligations. Section 1129(a)(15) of the Bankruptcy Code is 

inapplicable because no Debtor is an “individual” as defined in the Bankruptcy Code. Section 

1129(a)(16) of the Bankruptcy Code is inapposite because the Plan does not provide for any 

property transfers by a corporation or trust that is not a moneyed, business, or commercial 

corporation or trust.

O. The Plan Satisfies the “Cram Down” Requirements of Section 1129(b) of the 

Bankruptcy Code.

63. Section 1129(b)(1) of the Bankruptcy Code provides that, if all applicable 

requirements of section 1129(a) of the Bankruptcy Code are met other than section 1129(a)(8) of 

the Bankruptcy Code, a plan may be confirmed so long as the requirements set forth in section 

1129(b) of the Bankruptcy Code are satisfied. To confirm a plan that has not been accepted by all 

impaired classes (thereby failing to satisfy section 1129(a)(8) of the Bankruptcy Code), the plan 

proponent must show that the plan does not “discriminate unfairly” and is “fair and equitable” with 

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respect to the non-accepting impaired classes.74

64. The Plan satisfies section 1129(b) of the Bankruptcy Code. As described below, 

the Plan satisfies both of these cram down requirements with respect to Classes 6 and 8 that are 

deemed to reject the Plan. 

i. The Plan is Fair and Equitable (§ 1129(b)(2)(B) and (C)).

65. A plan is “fair and equitable” with respect to an impaired class of claims or interests 

that rejects a plan (or is deemed to reject a plan) if it follows the “absolute priority” rule. 75 The 

absolute priority rule provides that a junior stakeholder may not receive or retain property under a 

plan of reorganization “on account of” its junior claims or interests unless all senior classes either 

(a) are paid in full or (b) vote in favor of the plan.76 As set forth above, Class 1, 2, 3, 4, 5, and 7 

have either voted to accept or are deemed to accept the Plan. 

66. Classes 6 and 8 are deemed to reject the Plan, and the Plan is fair and equitable to 

Holders of Claims or Interests in Classes 6 and 8. With respect to Class 6 (Intercompany Claims), 

holders of claims in junior classes will not receive or retain property on account of such claim or 

interest. Class 7 consists of holders of Intercompany Interests, which will be reinstated for 

administrative purposes only as a means to preserve the corporate structure and to avoid the 

unnecessary cost of having to reconstitute that structure. Thus, those holders will not receive any 

economic substance.77 With respect to Class 8, there are no junior Classes. Accordingly, the Plan 

 

74

 John Hancock Mut. Life Ins. Co. v. Route 37 Business Park Associates, 987 F.2d 154, n.5 (3d. Cir. Jan. 22, 1993); 

Liberty Nat’l Enters. v. Ambanc La Mesa Ltd. P’Ship (In re Ambanc La Mesa Ltd. P’ship), 115 F.3d 650, 653 (9th 

Cir. 1997). 

75

 203 N. LaSalle, 526 U.S. at 441-42. 

76

 See 11 U.S.C. § 1129(b)(2)(B)(ii), (C)(ii); DISH Network Corp. v. DBSD N. Am., Inc. (In re DBSD N. Am., Inc.), 

634 F.3d 79, 88 (2d Cir. 2011); In re Armstrong World Indus., Inc., 432 F.3d 507, 512 (3d Cir. 2005). 

77

 See In re ION Media Networks, Inc., 419 B.R. 585, 601 (Bankr. S.D.N.Y. Nov. 24, 2009) (“This technical 

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satisfies the “fair and equitable” requirement of the Bankruptcy Code. No party has asserted 

otherwise.

ii. The Plan Does Not Unfairly Discriminate with Respect to the 

Impaired Classes that Have Not Voted to Accept the Plan (§ 1129(b)(1)).

67. Although the Bankruptcy Code does not provide a standard for determining when 

“unfair discrimination” exists, courts typically examine the facts and circumstances of the 

particular case to make the determination. 78 In general, courts have held that a plan unfairly 

discriminates in violation of section 1129(b) of the Bankruptcy Code only if it provides materially 

different treatment for creditors and interest holders with similar legal rights without compelling 

justifications for doing so. 79 A threshold inquiry to assessing whether a proposed plan of 

reorganization unfairly discriminates against a dissenting class is whether the dissenting class is 

equally situated to a class allegedly receiving more favorable treatment.80 

68. Here, the Plan’s treatment of the rejecting Classes is proper because all similarly 

situated Holders of Claims and Interests will receive substantially similar treatment and the Plan’s 

 

preservation of equity is a means to preserve the corporate structure that does not have any economic substance and 

that does not enable any junior creditor or interest holder to retain or recover any value under the Plan. The Plan’s 

retention of intercompany equity interests for holding company purposes constitutes a device utilized to allow the 

Debtors to maintain their organizational structure and avoid the unnecessary cost of having to recon stitute that 

structure.”).

78

 In re 203 N. LaSalle St. Ltd. P’ship, 190 B.R. 567, 585 (Bankr. N.D. Ill. 1995), rev’d on other grounds, 203 N. 

LaSalle, 526 U.S. 434 (noting “the lack of any clear standard for determining the fairness of a discrimination in the 

treatment of classes under a [c]hapter 11 plan” and that “the limits of fairness in this context have not been 

established”); In re Aztec Co., 107 B.R. 585, 589 (Bankr. M.D. Tenn. 1989) (“Courts interpreting language elsewhere 

in the Code, similar in words and function to § 1129(b)(1), have recognized the need to consider the facts and 

circumstances of each case to give meaning to the proscription against unfair discrimination.”); In re Freymiller 

Trucking, Inc., 190 B.R. 913, 916 (Bankr. W.D. Okla. 1996) (holding that a determination of unfair discrimination 

requires a court to “consider all aspects of the case and the totality of all the circumstances”).

79

 See In re Idearc Inc., 423 B.R. 138, 171 (Bankr. N.D. Tex. 2009) (“[T]he unfair discrimination standard prevents 

creditors and equity interest holders with similar legal rights from receiving materially different treatment under a 

proposed plan without compelling justifications for doing so.”); In re Lernout & Hauspie Speech Prods., N.V., 301 

B.R. 651, 661 (Bankr. D. Del. 2003) (permitting different treatment of two classes of similarly situated creditors upon 

a determination that the debtors showed a legitimate basis for such discrimination). 

80

 See In re Aleris Int’l, Inc., 2010 WL 3492664, at *31 (Bankr. D. Del. May 13, 2010). 

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classification scheme rests on a legally permissible rationale. Claims and Interests in the rejecting 

Classes 6 and 8 are not similarly situated to any other Classes, given that they consist of 

Intercompany Claims and equity Interests in Cinemex Holdings—i.e. these two Classes contain 

claims of affiliates and insiders. The remaining Classes set forth in the Plan have either voted to 

accept the Plan or are deemed to have accepted the Plan, rendering section 1129(b) inapplicable 

to such Classes. Thus, the Plan does not discriminate unfairly in contravention of section 

1129(b)(1) of the Bankruptcy Code and the Plan may be confirmed notwithstanding the rejecting 

Classes. No party has asserted otherwise. 

P. The Plan Complies with the Other Provisions of Section 1129 of the

Bankruptcy Code (Sections 1129(c)-(e)).

69. The Plan satisfies the remaining provisions of section 1129 of the Bankruptcy Code. 

Section 1129(c) of the Bankruptcy Code, which prohibits confirmation of multiple plans, is not 

implicated because there is only one proposed plan of reorganization.

70. The purpose of the Plan is not to avoid taxes or the application of section 5 of the 

Securities Act of 1933. Moreover, no governmental unit or any other party has requested that the 

Bankruptcy Court decline to confirm the Plan on such grounds. Accordingly, the Plan satisfies 

the requirements of section 1129(d) of the Bankruptcy Code.

71. Lastly, section 1129(e) of the Bankruptcy Code is inapplicable because none of the 

Debtors’ chapter 11 cases is a “small business case.”

72. In sum, the Plan satisfies all of the Bankruptcy Code’s mandatory chapter 11 plan 

confirmation requirements.

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IV. THE PLAN’S RELEASE, EXCULPATION, AND INJUNCTION PROVISIONS 

ARE APPROPRIATE AND COMPLY WITH THE BANKRUPTCY CODE.

73. The Bankruptcy Code identifies various additional provisions that may be 

incorporated into a chapter 11 plan,81 including “any other appropriate provision not inconsistent 

with the applicable provisions of this title.”82 Among other discretionary provisions, the Plan at 

Article VIII contains certain Debtor and consensual third-party releases, an exculpation provision, 

and an injunction provision. These provisions are the product of extensive good faith, arms’-length 

negotiations, were material inducements for the settlement of controversies embodied in the Plan, 

are an integral part of the Debtors’ overall restructuring efforts, and were an essential element of 

the negotiations between the Debtors and their key constituencies in obtaining their support for the 

Plan. They comply with the Bankruptcy Code and prevailing law. Moreover, the approval of the 

Plan by the Debtors’ economic stakeholders strongly supports the conclusion that the release and 

exculpation provisions are appropriate.

A. The Debtor Release Is Appropriate and Complies with the Bankruptcy Code.

74. Article VIII.C of the Plan provides for releases by the Debtors, their Estates, and 

the Reorganized Debtors of any and all Causes of Action, including any derivative claims, the 

Debtors could assert against the Released Parties (the “Debtor Release”). The Debtor Release is 

an essential piece of the whole reorganization and is a recognition of the Released Parties’ 

contributions to the Debtors’ restructuring. No party has asserted otherwise. 

75. The Bankruptcy Code supports the inclusion of debtor releases in a chapter 11 plan.

Section 1123(b)(3)(A) of the Bankruptcy Code states that a chapter 11 plan may provide for “the 

 

81

 11 U.S.C. § 1123(b).

82

 11 U.S.C. § 1123(b)(6).

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settlement or adjustment of any claim or interest belonging to the debtor or to the estate.” This 

provision allows the Debtors to release estate causes of action as consideration for concessions 

made by their various stakeholders pursuant to the Plan.83 In determining the appropriateness of 

such releases, courts generally consider whether the release is (a) “fair and equitable” and (b) “in 

the best interests of the estate.”84 The “fair and equitable” prong is generally interpreted, consistent 

with that term’s usage in section 1129(b) of the Bankruptcy Code, to require compliance with the 

Bankruptcy Code’s absolute priority rule (discussed above).85 Courts generally determine whether 

a debtor release is “in the best interest of the estate” by considering the following factors:

a. the probability of success of the litigation being settled;

b. the complexity and likely duration of the litigation, any attendant expense, 

inconvenience, or delay, and possible problems collecting a judgment;

c. the interest of creditors with proper deference to their reasonable views; and

d. the extent to which the settlement is truly the product of arm’s-length 

negotiations.86

Ultimately, courts afford debtors some discretion in determining for themselves the 

appropriateness of granting plan releases of estate causes of action.87

76. The Debtor Release easily meets this standard. As an initial matter, the Debtor 

Release is “fair and equitable” and complies with the absolute priority rule. The Debtor Release 

 

83

 See, e.g., In re Bigler LP, 442 B.R. 537, 547 (Bankr. S.D. Tex. Nov. 24, 2010) (plan release provision “constitutes 

an acceptable settlement under § 1123(b)(3) because the [d]ebtors and the [e]state are releasing claims that are property 

of the [e]state in consideration for funding of the [p]lan”); In re Heritage Org., LLC, 375 B.R. 230, 307-308 (Bankr. 

N.D. Tex. Aug. 31, 2007); In re General Homes Corp., 134 B.R. 853, 861 (Bankr. S.D. Tex. 1991).

84

 In re Mirant Corp., 348 B.R. 725, 738 (Bankr. N.D. Tex. Aug. 9, 2006); see also Heritage, 375 B.R. at 259.

85

 Mirant, 348 B.R. at 738.

86

 Id. at 739-40. 

87

 See General Homes, 134 B.R. at 861 (“[t]he court concludes that such a release is within the discretion of the 

[d]ebtor”).

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and the settlements embodied therein do not result in any junior Classes improperly receiving or 

retaining any property on account of junior Claims or Interests. In addition to being fair and 

equitable, the Debtor Release is in the best interest of the Debtors’ Estates. 

77. First, to the extent that the Debtors have colorable Claims or Causes of Action 

against any of the Released Parties that would inure material benefit to creditor recoveries, the 

probability of success in litigation with respect to Causes of Action the Debtors may have against 

the Released Parties is uncertain. Second,prosecution of any potential Claims or Causes of Action 

released under the Debtor Release would undoubtedly be complex and time consuming and could 

mire the Debtors and parties in interest in litigation rather than effectuation of the Plan. Third, the 

Debtor Release is in the best interests of the Debtors’ stakeholders. Stakeholders, including the 

Committee, have agreed to support the Plan, including the Debtor Release. 88 Last, the Plan, 

including the Debtor Release, was vigorously negotiated by sophisticated entities that were 

represented by able counsel and financial advisors. Accordingly, the Debtor Release is consistent 

with applicable law, represents a valid settlement and release of claims the Debtors may have

against the Released Parties pursuant to section 1123(b)(3)(A) of the Bankruptcy Code, is a valid 

exercise of the Debtors’ business judgment, and is in the best interests of their estates. No party 

has asserted otherwise. 

B. The Third-Party Release Is Consensual, Appropriate, and Complies with the 

Bankruptcy Code.

78. Article VIII.D of the Plan contains a third-party release (the “Third-Party Release”).

It provides that each Releasing Party—including all Holders of Claims and Interests that do not 

elect to opt out of the releases contained in the Plan or timely file with the Bankruptcy Court on 

 

88

 Matter of Foster Mortg. Corp., 68 F.3d 914, 917 (5th Cir. 1995) (“While the desires of the creditors are not binding, 

a court ‘should carefully consider the wishes of the majority of the creditors.’”).

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 43 of 54
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the docket of the chapter 11 cases an objection to the releases contained in the Plan—releases any 

and all Causes of Action such parties could assert against the Debtors, the Reorganized Debtors, 

and the Released Parties.89 Ultimately, the value-maximizing restructuring contemplated by the 

Plan would not be possible absent the support of the Released Parties. Thus, the Third-Party 

Release operates to maximize the Debtors’ fresh start by minimizing the possibility of distracting 

post-emergence litigation or other disputes. Moreover, as set forth below, the Third-Party Release 

is a permissible consensual release.

79. While some decisions from other Circuits limit the availability of third-party 

releases,90 the Eleventh Circuit permits bankruptcy courts to approve even nonconsensual third 

party releases.91 Moreover, “[m]ost courts allow consensual non-debtor releases to be included in 

a plan.”92 This makes sense as “[t]he validity of a consensual release is primarily a question of 

contract law because such releases are no different from any other settlement or contract.” 93

80. In Seaside, the Eleventh Circuit adopted the factors set out in In re Dow Corning 

Corp., 280 F.3d 648, 658 (6th Cir. 2002)94 that courts should consider when determining whether 

to approve a nonconsensual non-debtor release: “(1) There is an identity of interests between the 

debtor and the third party, usually an indemnity relationship, such that a suit against the non-debtor 

is, in essence, a suit against the debtor or will deplete the assets of the estate; (2) The non-debtor 

 

89

 The foregoing description is meant as a summary of the operative plan provisions only. Certain of the Releasing 

Parties are defined as such in multiple capacities. To the extent there is any conflict between the foregoing summary 

and the definition of “Releasing Party” contained in Article I of the Plan, the Plan shall control.

90

 See, e.g.,Ad Hoc Group of Vitro Noteholders v. Vitro S.A.B. de C.V. (In re Vitro S.A.B. de C.V.), 701 F.3d 1031, 

1059 (5th Cir. 2012).

91

 Seaside, 780 F.3d at 1076. 

92

 In re Wool Growers Cent. Storage Co., 371 B.R. 768, 775 (Bankr. N.D. Tex. Jul. 19, 2007) (emphasis added).

93

 Id. (internal citation omitted).

94

 Seaside, 780 F.3d at 1079. 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 44 of 54
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has contributed substantial assets to the reorganization; (3) The injunction is essential to 

reorganization, namely, the reorganization hinges on the debtor being free from indirect suits 

against parties who would have indemnity or contribution claims against the debtor; (4) The 

impacted class, or classes, has overwhelmingly voted to accept the plan; (5) The plan provides a 

mechanism to pay for all, or substantially all, of the class or classes affected by the injunction; (6) 

The plan provides an opportunity for those claimants who choose not to settle to recover in full 

and; (7) The bankruptcy court made a record of specific factual findings that support its 

conclusions.”

95

 These factors guide the Bankruptcy Court’s determination, not all apply, and 

“should be applied flexibly” in a manner that is fair and equitable.96

81. The Third-Party Release easily meets the standard set forth in Seaside. As a 

threshold matter, the Third-Party Release is consensual. All parties in interest were provided 

extensive notice of these chapter 11 cases, the Plan, and the deadline to object to confirmation of 

the Plan. With respect to the Third-Party Release, each of the Disclosure Statement, the Plan, the 

Ballots, and the Notices of Non-Voting Status, expressly statesthat Holders of Claims and Interests 

that do not either (i) check the box labeled “opt out” on the applicable ballot or notice returned 

before the Voting Deadline or (ii) timely file with the Bankruptcy Court on the docket of the 

chapter 11 cases an objection to the releases contained in the Plan will be bound by the Third-Party 

Release. The Debtors also provided free access to all documents on their restructuring website 

and took all steps reasonably practicable under the circumstances to ensure the broadest possible 

notice to parties in interest.

82. In addition to being consensual, the Third-Party Release satisfies several of the

 

95

 Id.

96

 Id.

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 45 of 54
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factors referenced in Seaside and is fair and equitable. First, many of the Released Parties have 

made substantial contributions to the reorganization. The Syndicated Bank Loan Lenders have 

agreed to a fraction of their aliquot distribution on account of their Claims, and the Purchaser has 

agreed to purchase the New Common Stock for substantial and valuable consideration. Moreover, 

the DIP Lenders provided substantial value to the Debtors during the cases, which allowed them 

to operate and reach the precipice of confirmation. Moreover, the definition of “Released Parties” 

expressly carves out Grupo and any non-Debtor entities to specify that such entities are not 

released from obligations in their capacity as “Loan Parties” or as contractual obligors to holders 

of GUC Claims. In other words, a landlord with a guarantee against Grupo will retain that 

guarantee post-confirmation.

83. Second, the Third-Party Release is integral to the Plan. The provisions of the Plan 

were heavily negotiated. The Third-Party Release (together with the Debtor Release) is a key 

component of the Debtors’ restructuring and a key inducement to bring stakeholder groups to the 

bargaining table. Put simply, the Debtors and their key stakeholders would be unwilling to support 

the Plan without assurances that they would not be subject to post-emergence litigation or other 

disputes related to the restructuring. The Third-Party Release therefore benefits not only the nondebtor Released Parties, but also the Debtors’ post-emergence enterprise as a whole, as it provides 

finality and closure for the Debtors and these chapter 11 cases. 

84. Third, the Plan has broad support by all of the Debtors’ stakeholders. As discussed 

above, every Class entitled to vote has accepted the Plan, including Classes 3, 4, and 5, which 

consist of the Syndicated Bank Loan Claims, the GUC Claims, and the Convenience Claims. 

85. Fourth, the Plan permits any party in interest to opt out of the Third Party Releases. 

86. Ultimately, that the relevant factors weigh so heavily in favor of approving the 

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 46 of 54
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Third-Party Release speaks to the extraordinary nature of the restructuring embodied in the Plan. 

As set forth above, the Third-Party Release is fully consensual and otherwise complies with the 

controlling Eleventh Circuit standards.

C. The Exculpation Provision Is Appropriate and Complies with the 

Bankruptcy Code.

87. Article VIII.E of the Plan provides that each Exculpated Party shall be released and 

exculpated from any Cause of Action arising out of acts or omissions in connection with these 

chapter 11 cases and certain related transactions, except for claims related to any act or omission 

that constitutes actual fraud, willful misconduct, or gross negligence (the “Exculpation

Provision”).97 Currently, the Exculpated Parties include the Debtors, the Reorganized Debtors, 

the DIP Lenders, the Committee, members of the Committee, and the Purchaser. The Exculpated 

Parties do not include Grupo or any other non-Debtor entity in their capacity as a “Loan Party” 

under the Syndicated Bank Loan Agreement, or as a contractual obligor to any holder of GUC 

Claim. 

88. At the outset, it is important to underscore the difference between the Third-Party 

Release and the Exculpation Provision. Unlike a release, the Exculpation Provision does not affect 

the liability of Exculpated Parties per se, but rather sets a standard of care of actual fraud, willful 

misconduct, or gross negligence in hypothetical future litigation against an Exculpated Party for 

acts arising out of the Debtors’ restructuring.98 A bankruptcy court has the power to approve an 

exculpation provision in a chapter 11 plan because it cannot confirm a chapter 11 plan unless it 

 

97

 The foregoing description is a summary of the operative plan provisions only. To the extent there is any conflict 

between the foregoing summary and the definition of “Exculpated Parties” contained in Article I of the Plan, the Plan 

shall control.

98

 In re AJ Town Centre, LLC, 2012 WL 2524731 (Bankr. D. Ariz. Jan. 5, 2012).

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 47 of 54
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finds that the plan has been proposed in good faith under section 1129(a)(3).

 Thus, an exculpation 

provision represents a legal conclusion that flows from several different findings a bankruptcy 

court must reach in confirming a plan. 99 Once the court makes its good faith finding, it is 

appropriate to set the standard of care of the parties involved in the formulation of that chapter 11 

plan.100 Exculpation provisions, therefore, appropriately prevent future collateral attacks against 

fiduciaries of the Debtors’ estates. Here, the Exculpation Provision is likewise appropriate and 

vital because it provides protection to the Exculpated Parties who served and assisted with the 

restructuring process.

89. Exculpation provisions are essential to ensure that capable individuals are willing 

to manage and assist a debtor in the chapter 11 context.101 The Debtors’ directors, officers, and 

other agents and advisors have made substantial contributions to the success of the Debtors’ 

restructuring. These contributions include negotiations pre-dating these chapter 11 cases in 

addition to the negotiations that have occurred during these chapter 11 cases. The Debtors’ 

directors and officers worked tirelessly to reach the myriad compromises embodied in the Plan 

and the multiple term sheets, stipulations and compromises in this bankruptcy case. The Debtors’ 

officers and directors achieved all of this while still attending to the Debtors’ day-to-day business, 

ensuring that the Debtors’ business continued to operate smoothly during the chapter 11 cases, 

thereby preserving value for the benefit of all parties in interest. The Debtors could not have 

 

99

 See 28 U.S.C. § 157(b)(2)(L).

100

 See In re PWS Holding Corp., 228 F.3d 224, 246 (3d. Cir. 2000) (observing that creditors providing services to 

the debtors are entitled to a “limited grant of immunity . . . for actions within the scope of their duties ”).

101

 See In re Chemtura Corp., 439 B.R. 561, 610 (Bankr. S.D.N.Y. 2010) (recognizing that “exculpation provisions 

are included so frequently in chapter 11 plans because stakeholders all too often blame others for failures to get the 

recoveries they desire; seek vengeance against other parties; or simply wish to second guess the decision-makers in 

the chapter 11 case”).

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 48 of 54
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developed the Plan without the support and contributions of the Exculpated Parties. To the extent 

the Debtors acted in good faith, the Debtors’ management and professionals should presumptively 

not be subject to liability.102 Insofar as any Exculpated Parties do not, strictly speaking, owe 

fiduciary duties to the Debtors, they were integral participants to the global settlement embodied 

by the Plan and are therefore properly included in the Exculpation Provision. In sum, then, the 

Exculpation Provision complies with the Bankruptcy Code. Accordingly, the Exculpation 

Provision should be approved.

D. The Injunction Provision Is Appropriate and Complies with the Bankruptcy 

Code.

90. The injunction provision set forth in Article VIII.F of the Plan (the “Injunction

Provision”) merely implements the Plan’s discharge, release, and exculpation provisions by 

permanently enjoining all Entities from commencing or maintaining any action against the 

Debtors, the Reorganized Debtors, and the Released Parties on account of, or in connection with, 

or with respect to, any such Claims or Interests discharged, released, exculpated, or settled under 

the Plan. The Injunction Provision is a necessary part of the Plan precisely because it enforces the 

discharge, release, and exculpation provisions that are centrally important to the Plan. Further, as 

described above, the injunction provided for in the Plan is consensual as to any party that did not 

specifically object thereto. Accordingly, to the extent the Bankruptcy Court finds that the Plan’s

exculpation and release provisions are appropriate, the Debtors respectfully request that the 

Bankruptcy Court approve the Injunction Provision.103

 

102

 Id.; see also PWS, 228 F.3d at 246 (observing that creditors providing services to the debtors are entitled to a 

limited grant of immunity for actions within the scope of their duties).

103

 See, e.g., In re Camp Arrowhead, Ltd., 451 B.R. 678, 701-02 (Bankr. W.D. Tex. Mar. 21, 2011) (“[T]he Fifth 

Circuit does allow permanent injunctions so long as there is consent. Without an objection, this court was entitled to 

rely on [the creditor’s] silence to infer consent at the confirmation hearing.”).

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 49 of 54
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V. THE REMAINING OBJECTIONS ARE WITHOUT MERIT AND SHOULD BE 

OVERRULED.

91. As set forth in greater detail in the Objection Chart attached hereto, the Debtors 

received numerous formal and informal Objections. Since the Objection Deadline, the Debtors 

have been working diligently with the Objectors to resolve all Objections consensually. The

Debtors anticipate that all remaining good-faith Objections will be resolved through agreed 

language in the Plan or the Confirmation Order or otherwise in advance of the Confirmation 

Hearing. However, to the extent the Debtors are unable to resolve any remaining Objections in 

advance of such time, the Debtors request that the Court overrule such Objections for the reasons 

set forth above and in the Objection Chart.

Waiver of Bankruptcy Rule 3020(e)

92. To implement the Plan, the Debtors seek a waiver of the 14-day stay of an order 

confirming a chapter 11 plan under Bankruptcy Rule 3020(e). The Debtors’ swift emergence from 

chapter 11 is an important component of their restructuring, and requiring the Debtors to pause 

before confirmation would be prejudicial to all parties in interest that continue to incur the cost 

and expense of the Debtors’ chapter 11 cases.

Conclusion

For the reasons set forth herein, the Debtors respectfully request that the Bankruptcy Court 

confirm the Plan and enter the Confirmation Order.

Respectfully submitted this 23rd day of November, 2020.

QUINN EMANUEL URQUHART & 

SULLIVAN, LLP

Patricia B. Tomasco (admitted pro hac vice)

711 Louisiana Street, Suite 500

Houston, Texas 77002

Telephone: 713-221-7000

Facsimile: 713-221-7100

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 50 of 54
41

Email: pattytomasco@quinnemanuel.com

By: /s/ Patricia B. Tomasco

 Patricia B. Tomasco (admitted pro hac

 vice)

Juan P. Morillo (FBN 135933)

1300 I Street, NW, Suite 900

Washington, D.C. 20005

Telephone: 202-538-8000

Facsimile: 202-538-8100

Email: juanmorillo@quinnemanuel.com

-andBAST AMRON LLP

Jeffrey P. Bast (FBN 996343)

Brett M. Amron (FBN 148342)

One Southeast Third Avenue, Suite 1400

Sun Trust International Center

Miami, Florida 33131

Telephone: 305-379-7904

Facsimile: 305-379-7905

Email: jbast@bastamron.com

Email: bamron@bastamron.com

COUNSEL FOR CINEMEX USA REAL 

ESTATE HOLDINGS, INC., CINEMEX 

HOLDINGS USA, INC., and CB THEATER 

EXPERIENCE LLC

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 51 of 54
1

EXHIBIT A

Objection Chart

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 52 of 54
09923-00001/12433089.2

IN RE CINEMEX USA REAL ESTATE HOLDINGS, INC., ET AL., CASE NO. 20-14695-LMI

PLAN OBJECTION SUMMARY CHART1

OBJECTOR OBJECTION STATUS/DEBTORS’ RESPONSE

MN Theaters 2006, LLC (ECF No. 

863)

 The Plan does not comply with section 

1129(a)(3).

 See Memorandum ¶¶ 38-45.

400 East 62nd Properties LLC (ECF 

No. 874)

 Seeks escrow for its asserted 

administrative claim of $373,500.

 The Debtors are working with 400 East 62nd 

Properties LLC to confirm its asserted claim 

and will add language to the Confirmation 

Order, if necessary. 

Oracle America, Inc. (ECF No. 875)  Objects to assumption of its contract and 

states that it is opting out of the ThirdParty Releases.

 The Debtors are not assuming any contract or 

license with Oracle, Inc., and are working 

with Oracle, Inc. to confirm its asserted 

claim.

Ecolab, Inc. (ECF No. 876)  Objects to the proposed cure amount.  The Debtors are working with Ecolab, Inc. to 

confirm the cure amount.

Cobb Lakeside LLC (ECF No. 878)  Objects under section 1129(a)(9) because 

there is no indication of how the 

administrative claims will be funded. 

 Asserts that its administrative claim must 

be paid in full. 

 The Plan Supplement specifies the payment

of all allowed administrative claims, through 

the Purchase Price. See Plan Supplement, 

Ex. D. 

 

1

 Capitalized terms used herein but not defined have the same meaning given to such terms in the Plan, the Disclosure Statement, the relevant Objection, or the 

Memorandum (each as defined in the Memorandum), as applicable.

Case 20-14695-LMI Doc 912 Filed 11/23/20 Page 53 of 54
09923-00001/12433089.2

 The Debtors are working with Cobb 

Lakeside, LLC to confirm the amount of its 

claim. 

Paramount Pictures Corporation (ECF 

No. 879)

 Objects to the Injunction provision to the 

extent that it can be read to impair any 

rights of setoff and/or recoupment.

 The Debtors will add language to the 

Confirmation Order to resolve this objection, 

and are awaiting a copy of the audit on which 

the setoff claim is based. 

Brookfield Properties Retail, Inc., 

National Retail Properties, LP, USEF 

HCG Fenton, LLC, and Shopcore 

Properties, Ltd. (ECF No. 881)

 Objects to proposed cure amounts. 

 Objects to the extent that the Plan cuts off 

obligations to cure defaults, extends the 

time to assume or reject unexpired leases 

past the date of confirmation of the Plan, 

and to the extent the Plan extinguishes 

creditors’ rights to setoff. 

 The Debtors are working with these objectors 

to confirm the cure amount.

 The Debtors will add language to the 

Confirmation Order to resolve this objection. 

Windstream Services, LLC (ECF No. 

891)

 Joins in Cobb Lakeside LLC’s objection

under section 1129(a)(9) regarding 

funding of administrative claims. 

 Requests an escrow for its asserted 

administrative expense claim. 

 This objection is untimely. 

 The Plan Supplement specifies the payment 

of all allowed administrative claims, through 

the Purchase Price. See Plan Supplement, 

Ex. D. 

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