UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LAND HOLDINGS, LLC Case No.

Transcription

1 UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION In re: Chapter 11 FIDDLER S CREEK, LLC Case No. 8:10-bk KRM 951 LAND HOLDINGS, LLC Case No. 8:10-bk KRM DY ASSOCIATES, LLC Case No. 8:10-bk KRM GBFC DEVELOPMENT, LLC Case No. 8:10-bk KRM FC MARINA, LLC Case No. 8:10-bk KRM FC BEACH, LLC Case No. 8:10-bk KRM FC GOLF, LLC Case No. 8:10-bk KRM DY LAND HOLDINGS II, LLC Case No. 8:10-bk KRM FC PARCEL 73, LLC Case No. 8:10-bk KRM FC COMMERCIAL, LLC Case No. 8:10-bk KRM FC HOTEL, LLC Case No. 8:10-bk KRM FC RESORT, LLC Case No. 8:10-bk KRM GULF BAY HOSPITALITY COMPANY, LLC Case No. 8:10-bk KRM GULF BAY HOTEL COMPANY, LLC Case No. 8:10-bk KRM GBP DEVELOPMENT, LLC Case No. 8:10-bk KRM GB PENINSULA, LTD. Case No. 8:10-bk KRM 951 LAND HOLDINGS, LTD. Case No. 8:10-bk KRM DY LAND ASSOCIATES, LTD. Case No. 8:10-bk KRM GBFC DEVELOPMENT, LTD. Case No. 8:10-bk KRM GBFC MARINA, LTD. Case No. 8:10-bk KRM FC BEACH, LTD. Case No. 8:10-bk KRM FC GOLF, LTD. Case No. 8:10-bk KRM FC HOTEL, LTD. Case No. 8:10-bk KRM FC RESORT, LTD. Case No. 8:10-bk KRM GULF BAY HOSPITALITY, LTD. Case No. 8:10-bk KRM GULF BAY HOTEL COMPANY, LTD. Case No. 8:10-bk KRM GBP DEVELOPMENT, LTD. Case No. 8:10-bk KRM FIDDLER S CREEK MANAGEMENT, INC., Case No. 8:10-bk KRM Debtors. / (Jointly Administered under Case No. 8:10-bk KRM) MEMORANDUM OPINION AND ORDER CONFIRMING THE DEBTORS SECOND AMENDED PLANS OF REORGANIZATION AS MODIFIED

2 This Memorandum Opinion and Order follows the Court s oral ruling on July 29, 2011 (the Bench Ruling ) [D.E. 1420], concluding that the Debtors Second Amended Plans satisfied the applicable requirements of 11 U.S.C. 1129, and should be confirmed, and approving certain settlements and the assumption of certain executory contracts. The Court made findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure. In addition, the Court explained its reasons for overruling the objections to confirmation of the Debtors Second Amended Plans. Also, the Court has considered U.S. Bank s proposed revisions to the form of Order proposed by the Debtors which were further considered at a hearing on August 29, The Court enters this Memorandum Opinion and Order to supplement, clarify and add details to the Bench Ruling, which is incorporated herein by reference. The Bench Ruling followed evidentiary hearings on May 26 and 27, 2011, and thereafter on each of June 2, 2011, June 3, 2011, June 20, 2011, June 30, 2011, July 1, 2011 and July 14, 2011 (collectively, the Confirmation Hearing ) to consider confirmation of those certain Second Amended Plans of Reorganization, each dated March 18, 2011 and filed with the Court by (i) FC Beach, Ltd. and FC Beach, LLC [D.E. 758]; (ii) the Tarpon Club Debtors [D.E. 761], as modified by a First Modification, dated May 11, 2011 [D.E. 1214]; (iii) GBFC Development, Ltd. and GBFC Development, LLC [D.E. 760], as modified by a First Modification, dated May 11, 2011 [D.E. 1217]; (iv) GB Peninsula, Ltd. [D.E. 756], as modified by a First Modification, dated May 11, 2011 [D.E. 1211]; (v) Fiddler s Creek Management, Inc. [D.E. 757]; (vi) 1 The Court further considered: (1) the proposed, competing confirmation order submitted by U.S. Bank as Indenture Trustee; (2) the Joint Notice of Opposition of Fiddler's Creek Community Development District I and Fiddler's Creek Community Development District II to Proposed, Competing Confirmation Order Submitted by U.S. Bank as Indenture Trustee [D.E. 1437]; and (3) the Response by U.S. Bank as Indenture Trustee [D.E. 1439]. 2

3 Fiddler s Creek, LLC [D.E. 759], as modified by a First Modification, dated May 11, 2011 [D.E. 1212]; (vii) GBP Development, Ltd. and GBP Development, LLC [D.E. 763], as modified by a First Modification, dated May 11, 2011 [D.E. 1216]; (viii) 951 Land Holdings, Ltd. and 951 Land Holdings, LLC [D.E. 762], as modified by a First Modification, dated May 11, 2011 [D.E. 1213]; (ix) DY Land Associates, Ltd. and DY Associates, LLC [D.E. 755], as modified by a First Modification, dated May 11, 2011 [D.E. 1210]; 2 (x) DY Land Holdings II, LLC, FC Commercial, LLC and FC Parcel 73, LLC [D.E. 754] as modified by a First Modification, dated May 17, 2011 [D.E. 1239] and a Second Modification, dated July 19, 2011 [D.E. 1391]; and (xi) FC Golf, Ltd. and FC Golf, LLC [D.E. 764] (collectively, the "Second Amended Plans") 3, as debtors and debtors in possession (collectively, the "Debtors"). 4 Previously, on March 23, 2011, the Court entered an order pursuant to sections 105, 502, 1125, 1126, and 1128 of the Bankruptcy Code and Bankruptcy Rules 2002, 3003, 3017 and 3018, (i) approving the Debtors Second Amended Joint Consolidated Disclosure Statement for Second Amended Plans of Reorganization, dated March 18, 2011 [D.E. 752] (the Disclosure 2 On May 17, 2011, the Debtors filed D.E. 1238, which is identified on the Court s docket as a First Modification to the Second Amended Plan of DY Land Associates, Ltd. and DY Associates, LLC. Such pleading is, however, mislabeled on the Court s docket as it is in fact a First Modification to the Second Amended Plan for DY Land Holdings II, LLC, FC Commercial, LLC and FC Parcel 73, LLC. As a result, the Debtors have withdrawn D.E and replaced it with D.E. 1239, which is the correct First Modification to the Second Amended Plan of DY Land Holdings II, LLC, FC Commercial, LLC and FC Parcel 73, LLC. 3 All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Second Amended Plans. 4 The Debtors in these jointly administered proceedings are: (i) Fiddler s Creek, LLC; (ii) 951 Land Holdings, LLC; (iii) 951 Land Holdings, Ltd.; (iv) DY Associates, LLC; (v) DY Land Associates, Ltd.; (vi) FC Beach, LLC; (vii) FC Beach, Ltd.; (viii) FC Golf, LLC; (ix) FC Golf, Ltd.; (x) FC Hotel, LLC; (xi) FC Hotel, Ltd.; (xii) FC Marina, LLC; (xiii) FC Resort, LLC; (xiv) FC Resort, Ltd.; (xv) Fiddler s Creek Management, Inc.; (xvi) GBFC Development, LLC; (xvii) GBFC Development, Ltd.; (xviii) GBFC Marina, Ltd.; (xix) Gulf Bay Hospitality Company, LLC; (xx) Gulf Bay Hospitality, Ltd.; (xxi) Gulf Bay Hotel Company, LLC; (xxii) Gulf Bay Hotel Company, Ltd.; (xxiii) DY Land Holdings II, LLC; (xxiv) FC Commercial, LLC; (xxv) FC Parcel 73, LLC; (xxvi) GB Peninsula, Ltd., (xxvii) GBP Development, Ltd. and (xxviii) GBP Development, LLC. 3

4 Statement ), including all exhibits annexed thereto; (ii) establishing a record date for voting on the Second Amended Plans; (iii) approving solicitation procedures for distribution of the Second Amended Plans; (iv) approving the forms of ballots for the Second Amended Plans; (v) establishing procedures for voting on the Second Amended Plans; and (vi) scheduling a hearing and establishing notice and objection procedures in respect of confirmation of the Second Amended Plans (the Order Approving Disclosure Statement ) [D.E. 770], together with the Solicitation Letter in support of confirmation of the Second Amended Plans by the Official Committee of Unsecured Creditors (the "Committee"). Thereafter, the Disclosure Statement was transmitted to all Holders of Claims in each of the 88 Classes set forth in the Second Amended Plans (together, the "Voting Classes") as provided for in the Order Approving Disclosure Statement. In connection with confirmation of the Second Amended Plans, the Court considered (i) each Second Amended Plan, (ii) the Notice of Filing Debtors Amended Projections for Second Amended Joint Consolidated Disclosure Statement for Second Amended Plans of Reorganizations of the Debtors filed on May 11, 2011 (the Amended Projections ) [D.E. 1208]; (iii) the Notice of Filing Debtors Amended and Restated Exit Credit Facilities Commitment Letter as Exhibit A to the Second Amended Second Amended Plans of Reorganization filed on May 11, 2011 (the Amended and Restated Exit Credit Facilities Commitment Letter ) [D.E. 1209]; (iv) the exhibits to the Notice of Plan Supplement (the Exit Financing Documents )[D.E.1279](the Amended and Restated Exit Credit Facilities Commitment Letter and the Exit Financing Documents shall be collectively referred to herein as the Plan Supplement ); (v) the Joint Memorandum of Law in Support of Confirmation of 4

5 Second Amended Second Amended Plans filed on May 24, 2011 [D.E. 1287]; (vi) the Ballot Tabulation for Debtors' Second Amended Second Amended Plans on behalf of Debtors filed on May 19, 2011 [D.E. 1266] as corrected on June 1, 2011 (collectively the Ballot Report ) [D.E. 1315]; (vii) the Affidavit of Heather L. Harmon In Connection With Debtors Corrected Ballot Tabulation Report For Debtors Second Amended Chapter 11 Second Amended Plans dated June 16, 2011 [D.E. 1335] (the "Harmon Affidavit"); and (viii) the Motion Pursuant to Section 1129(b) for Confirmation of Certain Second Amended Second Amended Plans of Reorganization filed on June 15, 2011 (the Cramdown Motion ) [D.E. 1329]. In addition, in connection with confirmation of the Second Amended Plans, the Court fully considered the objections to the Second Amended Plans filed on May 12, 2011, including without limitation, the following: (i) Objection to Confirmation of Second Amended Joint Plan of Reorganization for FC Golf Ltd and FC Golf, LLC filed by Interested Parties Raymond David, Steven Shulman, Matthew Suffoletto, Glenn Vician, Creditor Steve Taub (the Class Action Objection ) [D.E. 1221]; (ii) Objection to Confirmation of Debtors' Second Amended Plans and any Modifications Thereto filed by Interested Parties MMA Financial CDD Sponsor, LLC, MMA Financial Holdings, Inc., Munimae TEI Holdings, LLC (the MuniMae Objection ) [D.E. 1223]; (iii) Objection to Confirmation of Second Amended Second Amended Plans of Reorganization filed by U.S. Bank National Association as Indenture Trustee [D.E. 1224] 5 (the Indenture Trustee Objection ); (iv) Limited Objection to Disclosure Statement and Joint Second Amended Plans of Reorganization for FC Golf, LLC and FC Golf, LTD (Second 5 On May 11, 2011, the Court entered an Order Denying Without Prejudice Emergency Motion for Entry of an Order Determining that the Indenture Trustee Has Standing to Object to Confirmation of the Debtors Second Amended Plans and for Related Relief [D.E. 1215], pursuant to which the Debtors agreed, inter alia, that they would not object, on grounds of standing, to the Indenture Trustee s participation in the confirmation hearing in support of its objections to confirmation. 5

6 Amended) and the Second Amended Joint Plan of Reorganization for DY Land Holdings II, LLC; FC Commercial, LLC and FC Parcel 73, LLC filed on May 25, 2011, (the FC Golf Club Members Objection ) [D.E.1297] and (v) Limited Objection to Confirmation of the Debtor s Second Amended Plan of Reorganization on behalf of Naples Lending Group, LLC. and Daniel Carter filed on May 27, 2011 (the Naples Lending Objection ) [D.E. 1307] (collectively, the Confirmation Objections ). The Court also considered the Omnibus Response to the Objections filed by the Debtors on May 19, 2011 [D.E. 1268] and the Debtors Response to Naples Lending Objection filed on July 18, 2011 [D.E.1390]. At and in connection with the Confirmation Hearing, the Court heard the testimony and evaluated the credibility of twelve (12) witnesses, including the following witnesses: (A) offered by the Debtors in support of confirmation of the Second Amended Plans: (i) Aubrey Ferrao, the Debtors chief executive officer and 100% owner, including through the Declaration of Aubrey Ferrao in Support of Debtors' Second Amended Second Amended Plans of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code dated May 19, 2011 (the Ferrao Declaration ) [D.E. 1267], which was admitted into evidence as Debtors Exhibit 3; (ii) Anthony DiNardo, the Debtors chief financial officer, including through the Declaration of Anthony DiNardo in Support of (A) Debtors' Second Amended Second Amended Plans of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code; (B) Settlement Agreements By and Between the Debtors and (I) The Official Committee of Unsecured Creditors, (II) The Ad Hoc Committee of Homeowners and (III) The Ad Hoc Committee of Golfers Pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure; and (C) Substantive Consolidation of Certain of the Debtors dated May 19, 2011 (the DiNardo Declaration ) [D.E. 1269] as 6

7 amended on June 16, 2011 to reflect the changes made in the corrected Ballot (the Amended DiNardo Declaration ) [D.E. 1336] (the DiNardo Declaration and the Amended Declaration shall be collectively referred to herein as the DiNardo Declaration ), which were admitted into evidence as Debtors Exhibit 4; (iii) Carlton J. Lloyd ( Mr. Lloyd ), the Debtors expert appraiser, including through the appraisal reports of Mr. Lloyd admitted into evidence for the valuation of real property known as (a) Parcel 73 [Debtors Exhibit 11]; (b) Fiddler s 951 Commercial Property [Debtors Exhibit 12]; (c) Fiddler s Creek Parcels [Debtors Exhibit 14]; and (d) Runaway Bay Parcel 31 [Debtors Exhibit 15]; and (iv) Henry H. Fishkind, Ph.D. ( Dr. Fishkind ), the Debtors expert on, among other things, feasibility of the Second Amended Plans, including through Dr. Fishkind s expert witness report admitted into evidence as Debtors Exhibit 8, and (B) offered by the Indenture Trustee in opposition to confirmation of the Second Amended Plans: (i) Jon Kessler ( Mr. Kessler ), the Indenture Trustee s expert on certain matters related to the Bonds, including through the expert report of Mr. Kessler admitted into evidence as Indenture Trustee s Exhibit 2; (ii) Ross McIntosh, the Indenture Trustee s expert commercial real estate broker; (iii) Jack Winston ( Mr. Winston ), the Indenture Trustee s expert on feasibility of the Second Amended Plans, including through the expert report of Mr. Winston admitted into evidence as Indenture Trustee s Exhibit 1(a); (iv) Robert M. Cox ( Mr. Cox ), the Indenture Trustee s expert on certain matters related to the implementation of assessment methodologies by community development districts, including through the expert report of Mr. Cox admitted into evidence as Indenture Trustee s Exhibit 47; (v) Amanda Barton as a rebuttal witness with respect to certain testimony of Mr. DiNardo; (vi) Alice J. Carlson, the consultant for Fiddler s Creek Community Development District #1 and Fiddler s Creek 7

8 Community Development District #2 (collectively, the CDDs ), through the deposition designations by the Indenture Trustee and cross-designations by the Debtors, in transcript form and video form; (vii) Chesley Adams, Jr., the district manager for the CDDs, through the deposition designations by the Indenture Trustee and cross-designations by the Debtors, in transcript form and video form; and (viii) William T. Cole, the engineer for the CDDs, through the deposition designations by the Indenture Trustee and cross-designations by the Debtors, in transcript form and video form. 6 The Court also considered all of the other evidence proffered or adduced at the Confirmation Hearing, including all exhibits admitted into evidence, as well as oral stipulations of counsel made in connection therewith. The Court considered that in response to the oral Limited Objection by PEPI Capital, L.P., the Debtors and PEPI agreed to resolve that objection of PEPI Capital, L.P. by modifying the Second Amended Plans to provide as follows: Notwithstanding anything to the contrary herein or in the Plans (or any related documents, disclosure statement, notices, filings, supplements, or pleadings), nothing shall, or be deemed to: a) limit, release, exculpate, estop, diminish, discharge, stay or waive any lawsuit, claim, right, defense or privilege asserted by PEPI Capital, L.P. ( PEPI ) against any non-debtor person or entity (the Asserted Claims ), including without limitation, non-debtor Exculpated Parties under the Plans, provided, however, that this sub-clause (a) shall not apply to any Asserted Claims that related to any act (taken or omitted to be taken) by the court approved estate professionals, the Official Committee of Unsecured Creditors, the Ad Hoc Committee of Golfers or the Exit Financing Lender in good faith in connection with the formulation, preparation, dissemination, implementation, confirmation or consummation of the Plan, the Disclosure Statement, any Plan Document, the Exit Financing or the Bankruptcy Case; b) enjoin, limit, release, exculpate, estop, diminish, discharge, stay or waive the filing, commencement, continuance or prosecution by PEPI of any lawsuit, claim, right, defense or privilege asserted by PEPI against any non-debtor person or entity, including without limitation, non-debtor Exculpated Parties under the 6 See Notice of Introduction into the Record By Agreement of the Parties of the Designations and Cross- Designations of the Deposition Transcripts of (I) Alice J. Carlson (II) Chesley Adams, Jr. and (III) William T. Cole [D.E. 1383], including certain exhibits designated from each deposition. 8

9 Plans, provided, however, that this sub-clause (b) shall not apply to any Asserted Claims that related to any act (taken or omitted to be taken) by the court approved estate professionals, the Official Committee of Unsecured Creditors, the Ad Hoc Committee of Golfers or Exit Financing Lender in good faith in connection with the formulation, preparation, dissemination, implementation, confirmation or consummation of the Plan, the Disclosure Statement, any Plan Document, the Exit Financing or the Bankruptcy Case; or c) limit, release, exculpate, estop, diminish, stay or waive any right of offset, recoupment, indemnification, contribution or other claim for reimbursement (including a claim for attorney fees, interest or costs) asserted by PEPI against any person or entity, including without limitation, any Exculpated Parties under the Plans. Nothing herein shall grant or create any Asserted Claims to or in favor of PEPI, nor amend or modify, directly or indirectly, the proofs of claim filed by PEPI in these Chapter 11 Cases, nor waive, limit, release or affect, directly or indirectly any claims, rights, objections or defenses that the Debtors presently have or may have in connection with such proofs of claims or any defenses available to any non-debtor person or entity in connection with sub-clauses (a) or (b) above. Except as provided in sub-clause (c) above as to PEPI, nothing herein shall waive, limit, release or affect, directly or indirectly, the enforceability of Section 1141 of the Bankruptcy Code or the confirmation injunctions provided for in the Plans. The Court has further considered that MUNB Holdings, LLC ( MUNB ) voted in favor of the Second Amended Plan for 951 Land Debtors, but sought clarification in this Confirmation Order of the payment terms proposed to MUNB under the 951 Land Plan as modified by the First Modification thereto, dated May 11, In connection therewith, the Debtors and MUNB agreed that Section 5.10 of the 951 Land Plan would be deemed further modified to provide that the monthly payments proposed to be made to MUNB under such Second Amended Plan shall equal $11,000 per month in principal, plus interest based on the pre-petition contract interest rate of LIBOR plus 250 basis points. The secured loan to MUNB will be due and payable on December 14, 2014, in accord with the existing terms of the underlying loan. The unpaid principal and interest which has accrued on such loan prior to the Effective Date shall be paid to MUNB on or shortly after the Effective Date, together with MUNB s attorneys fees in an amount to be agreed upon between the Debtors and MUNB, or to be determined by the Court. 9

10 Any availability within the existing loan documents shall be eliminated. In addition, the Exit Financing Lender has waived the requirement of the Exit Financing that a second mortgage be granted in favor of the Exit Financing Lender on the collateral securing the Allowed Secured Claim of MUNB. The Court further considered that Munimae TEI Holdings, LLC, MMA Financial CDD Sponsor, LLC and MMA Financial Holdings, Inc. (collectively, Muni Mae ) filed a Limited Objection to the Second Amended Plans and, in connection therewith, have objected to Sections 12.1 and 12.3 of the Second Amended Plans on the basis that such provisions purport to effectuate broad third party releases in favor of non-debtors. The Debtors represented that they do not seek under the Second Amended Plans to release or discharge, and the Court hereby concludes that the Second Amended Plans do not operate to release or discharge, any claims or causes of action that Muni Mae may have against any non-debtor person or entity; but the Debtors did not agree that this provision will limit the exculpation provisions set forth in Article 12 of the Second Amended Plans, which exculpation provision is approved by the Court as set forth herein. As such, the section 524(e) arguments raised in the MuniMae Objection do not apply to the Second Amended Plans. Except as set forth above, the Muni Mae Objection is overruled. In addition, the Court considered (A) the Debtors Closing Argument and Post-Trial Memorandum Regarding Confirmation Of The Second Amended Plans of Reorganization And Related Objections And Notice Of Certain Settlements Related Thereto [D.E ], (B) the post-trial memoranda in support of confirmation filed by (i) Fifth Third Bank [D.E. 1402]; (ii) Textron Financial Corporation [D.E. 1404]; (iii) the Official Committee of Unsecured Creditors 10

11 [D.E. 1405]; and (iv) Iberia Bank [D.E.1406], (C) the Closing Argument of the U.S. Bank National Association, as Indenture Trustee for Series 2003A and 2003B Special Assessment Revenue Bonds [D.E. 1410], together with Indenture Trustee's Closing Brief in Opposition to Confirmation of the Debtors' Second Amended Plan of Reorganization [D.E. 1411]; the Indenture Trustee s Objection to Debtor's Request for a Waiver of the 14-Day Automatic Stay Under Bankruptcy Rule 3020(E) [D.E. 1418]; and the Indenture Trustee s Report and Memorandum of Law Regarding the Effect of the Debtors Proposed Plans on Bondholders [D.E. 1408]; (D) the post trial memoranda in opposition to confirmation filed by (i) Munimae TEI Holdings, LLC, MMA Financial CDD Sponsor, LLC and MMA Financial Holdings, Inc. [D.E. 1403]; and (ii) Matthew Suffoletto, Stephen Shulman, Steven Taub, Raymond David and Glenn Vician [D.E. 1407]; and (E) the Debtors Response and Objection to Indenture Trustee s Report and Memorandum of Law Regarding Effect of Debtors Proposed Plans of Reorganization [D.E. 1413]. The Court takes judicial notice of the main case docket of these jointly administered Chapter 11 cases maintained by the Clerk of the Court [Case No. 8:10-bk KRM], including, without limitation, (i) all pleadings and other documents filed and orders entered thereon and included in the Designation of Items for the Court to Take Judicial Notice of and To Be Included in the Record In support Of Confirmation Of The Debtors Second Amended Second Amended Plans of Reorganization [D.E. 1414], (ii) the Exhibits proffered by the Debtors and the Indenture Trustee and admitted into evidence during the Confirmation Hearing, including as set forth in D.E and 1395, and (iii) the Debtors Motion Seeking Shortened Notice and Objection Periods on Motion for Entry of Order Pursuant to Rule 9019 of the Federal Rules of 11

12 Bankruptcy Procedures Authorizing and Approving Settlement and Plan Support Agreement Between GBP Development, Ltd. and Fifth Third Bank, dated February 8, 2011 [D.E. 656] (the Fifth Third Settlement ), which Fifth Third Settlement was approved by Court Order, dated February 25, 2011 [D.E. 702] (the Fifth Third Settlement Order ). FINDINGS OF FACT AND CONCLUSIONS OF LAW I. Exclusive Jurisdiction; Venue; Core Proceeding (28 U.S.C. 157(b)(2), 1334(a)). The Court has jurisdiction over these Chapter 11 cases in accordance with 28 U.S.C. 157 and Confirmation of the Second Amended Plans is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). The Court has jurisdiction to enter a final order with respect thereto. Venue is proper in this district pursuant to 28 U.S.C and II. Burden of Proof. The Debtors, as proponents of the Second Amended Plans, have met the requisite burden of proof in establishing the elements of sections 1129(a) and 1129(b) of the Bankruptcy Code in respect of the Second Amended Plans. III. Transmittal and Mailing of Materials; Notice. As evidenced by the Harmon Affidavit, the Order Approving Disclosure Statement and the docket in these Chapter 11 cases, due, adequate and sufficient notice of the Disclosure Statement, the Second Amended Plans and exhibits, the First Modifications thereto, the Second Modifications thereto, the Plan Supplement and the Confirmation Hearing, together with all deadlines for objecting to and voting to accept or reject the Second Amended Plans, has been given to: (a) the U.S. Trustee; (b) counsel to the Committee; (c) the Internal Revenue Service; (d) the Securities and Exchange Commission; (e) any persons who have filed a request for notice in 12

13 the Chapter 11 Cases pursuant to Bankruptcy Rule 2002; (f) all parties to Executory Contracts and/or Unexpired Leases which are either to be assumed or rejected pursuant to the Second Amended Plans; (g) all Creditors; and (h) all parties in interest, including the Indenture Trustee, in compliance with the Order Approving Disclosure Statement and Bankruptcy Rules 2002(b), 3017 and 3020(b), and no other or further notice is or shall be required. Adequate and sufficient notice of the Confirmation Hearing and other dates and hearings described in the Order Approving Disclosure Statement was provided in compliance with the Bankruptcy Rules and Order Approving Disclosure Statement, and no other or further notice is or shall be required. All parties in interest have been afforded a full, fair and adequate opportunity to be heard in respect of confirmation of the Second Amended Plans and any objections thereto. IV. Solicitation. Votes for acceptance and rejection of the Second Amended Plans were solicited in good faith and in compliance with sections 1125 and 1126 of the Bankruptcy Code, Bankruptcy Rules 3017 and 3018, the Disclosure Statement, the Order Approving Disclosure Statement, and all other applicable provisions of the Bankruptcy Code and all other applicable rules, laws and regulations. Specifically, the solicitation materials approved by the Court in the Order Approving the Disclosure Statement (including, without limitation, the Disclosure Statement, the Second Amended Plans, the Solicitation Letter, the Ballots and the Order Approving Disclosure Statement) were transmitted to and served on all Holders of Claims or Interests in the Voting Classes, as well as to other parties in interest in these Chapter 11 cases, in compliance with section 1125 of the Bankruptcy Code, the Order Approving Disclosure Statement and the Bankruptcy Rules. Such transmittal and service were adequate and sufficient, and no further 13

14 notice is or shall be required. All procedures used to distribute solicitation materials to Holders of Claims and Interests were conducted in accordance with the Bankruptcy Code, the Bankruptcy Rules, the Order Approving Disclosure Statement, and all other applicable rules, laws and regulations. Prior to the hearing on confirmation of the Second Amended Plans, on May 2, 2011, the Indenture Trustee filed its Motion for Entry of an Order (A) Determining That The Debtors Have Improperly Solicited the Homeowners for Fiddler s Creek and (B) Granting Related Relief (the Improper Solicitation Motion ) [D.E. 1184]. On May 26, 2011 at the commencement of the Confirmation Hearing, the Court conducted a full evidentiary hearing on the Improper Solicitation Motion, and on June 20, 2011, the Court entered an Order Denying the Indenture Trustee s Motion for Entry of Order Determining that the Debtors have Improperly Solicited the Homeowners of Fiddler s Creek and Granting Related Relief [D.E. 1352]. On May 18, 2011, the Indenture Trustee filed its Motion to Designate the Districts Acceptances of the Proposed Treatment of the Off Roll Bond Debt Special Assessments (the Designation Motion ) [D.E. 1255]. On May 24, 2011, Debtors filed their Response to Indenture Trustee s Motion to Designate the Districts Acceptances of the Proposed Treatments of the Off Roll Bond Debt Special Assessments ( Response to Designation Motion ) [D.E. 1290]. The Designation Motion and Response to Designation Motion were heard by the Court on May 26, 2011, and on June 20, 2011, the Court entered an Order Denying Indenture Trustee s Motion to Designate the Districts Acceptances of the Proposed Treatments of the Off Roll Bond Debt Special Assessments [D.E. 1353]. 14

15 V. Ballot Report. As evidenced by the Corrected Ballot Report, fifty-two (52) of the sixty-five (65) Classes of Claims entitled to vote on the Second Amended Plans affirmatively voted to accept their respective Second Amended Plans. In addition, (i) the Collier County Tax Collector did not cast a ballot in respect of the nine (9) Impaired Classes containing Claims of the Collier County Tax Collector; 7 (ii) three (3) Impaired Classes contained no creditors and therefore no ballots were cast in these Classes; and (iii) one (1) Impaired Class of general unsecured claims did not cast any ballots. As discussed below, the Debtors filed the Cramdown Motion with respect to those Classes in which no ballots were cast. No impaired Classes voted to reject the Second Amended Plans. 8 All procedures used to tabulate the Ballots were fair and conducted in accordance with the Order Approving Disclosure Statement, the Bankruptcy Code, the Bankruptcy Rules, the local rules of the Bankruptcy Court for the Middle District of Florida and all other applicable rules, laws and regulations. VI. Modifications to the Second Amended Plans. Subsequent to March 23, 2011 (the "Solicitation Date"), the Debtors made certain modifications to the Second Amended Plans and filed the following First Modifications to the Second Amended Plans: (i) First Modification to the Second Amended Joint Plan of Reorganization for DY Land Associates, Ltd. and DY Associates, LLC Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1210]; (ii) First Modification to the Second Amended Joint Plan of Reorganization for GB Peninsula, Ltd. Pursuant to Chapter 11 of the 7 Debtors counsel represented to the Court that, pursuant to discussions with counsel to the Collier County Tax Collector, the Collier County Tax Collector supports the Second Amended Plans, but abstained from voting per its internal policy. 8 See Affidavit of Heather L. Harmon In Connection With Debtors Corrected Ballot Tabulation Report For Debtors Second Amended Chapter 11 Second Amended Plans [D.E. 1335]. 15

16 United States Bankruptcy Code [D.E. 1211]; (iii) First Modification to the Second Amended Joint Plan of Reorganization for Fiddler's Creek, LLC Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1212]; (iv) First Modification to the Second Amended Joint Plan of Reorganization for 951 Land Holdings, Ltd. and 951 Land Holdings, LLC Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1213]; (v) First Modification to the Second Amended Joint Plan of Reorganization for the Tarpon Club Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1214]; (vi) First Modification to the Second Amended Joint Plan of Reorganization for GBP Development, Ltd. and GBP Development, LLC Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1216]; and (vii) First Modification to the Second Amended Joint Plan of Reorganization for GBFC Development, Ltd. and GBFC Development, LLC Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1217]. Additionally, on May 17, 2011, the Debtors filed a First Modification to the Second Amended Joint Plan of Reorganization for DY Land Holdings II, LLC, FC Commercial, LLC and FC Parcel 73, LLC Pursuant to Chapter 11 of the United States Bankruptcy Code [D.E. 1239]. On July 19, 2011, the Debtors filed a Second Modification to the Second Amended Joint Plan of Reorganization for DY Land Holdings II, LLC, FC Commercial, LLC and FC Parcel 73, LLC. [D.E. 1391](collectively, the Modifications ). The Second Amended Plan for 951 Land Holdings, Ltd. and 951 Land Holdings, LLC [D.E. 762] is further modified by this Confirmation Order to revise the term First Payment Date defined in Sections 5.4 and 5.5 thereof to April 15, 2013 as opposed to May 1, 2013 (the 951 Modification ). 16

17 The Second Amended Plan for DY Land Associates, Ltd. and DY Associates, LLC [D.E. 755] is further modified by this Confirmation Order to provide that FCC Preserve, LLC (as successor to DY Land Associates, Ltd.) shall transfer on the Effective Date to FCC Creek, LLC 9 certain property constituting the third golf course, certain surrounding lakes and the related third golf course driving range, subject to the de-accelerated and restructured CDD Bond Claims and the Secured Real Estate Tax Claims thereon. In connection and simultaneously therewith, FCC Creek, LLC shall transfer to FCC Preserve, LLC the development rights to 400 density units, which are being pledged by FCC Preserve, LLC pursuant to the Mortgage (defined below) being granted by FCC Preserve, LLC, as successor to DY Land Associates, Ltd., under and in connection with the Golf Members Committee Settlement (the DY Land Associates Second Modification ). Each of the Modifications, the 951 Modification, the DY Land Associates Second Modification and any further modifications disclosed on the record at the Confirmation Hearing (collectively referred to herein as the Modifications ), is consistent with the provisions of the Bankruptcy Code, including, but not limited to, sections 1122, 1123, 1125 and 1127 of the Bankruptcy Code. None of the Modifications adversely affects the treatment of any Holder of a Claim or Interest under the Second Amended Plans. Accordingly, pursuant to section 1127(a) of the Bankruptcy Code and Bankruptcy Rule 3019(a), none of the Modifications require additional disclosure under section 1125 of the Bankruptcy Code or re-solicitation of votes under section 1126 of the Bankruptcy Code. Moreover, the filing of the Modifications prior to the conclusion 9 In accordance with the Plan Supplement, FCC Creek, LLC is the entity to which Fiddler s Land Investor, LLC is transferring the Tomen II Collateral pursuant to the Second Modification to the Second Amended Plan of DY Land Holdings II, LLC, FC Commercial, LLC and FC Parcel 73, LLC, which transfer shall occur immediately after the Tomen II Collateral is transferred from DY Land Holdings II, LLC to Fiddler s Land Investor, LLC pursuant to such Second Modification. 17

18 of the Confirmation Hearing and as set forth herein constitutes due and sufficient notice of any and all of such Modifications under the Bankruptcy Code. In accordance with Section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019, all Holders of Claims who voted to accept the Second Amended Plans or who are conclusively presumed to have accepted the Second Amended Plans are deemed to have accepted the Second Amended Plans as modified by the Modifications and this Confirmation Order. All modifications to the Second Amended Plans made after the Solicitation Date are hereby approved pursuant to section 1127 of the Bankruptcy Code and Bankruptcy Rule The Second Amended Plans as modified by the Modifications and this Confirmation Order shall be and constitute the Second Amended Plans confirmed by the Court for all purposes pursuant to this Confirmation Order. Any and all references in this Confirmation Order to Second Amended Plans shall mean and include the Second Amended Plans as modified by the Modifications. VII. Compliance with the Requirements of Section 1129 of the Bankruptcy Code. As detailed below, the Second Amended Plans comply with all applicable provisions of section 1129(a) of the Bankruptcy Code, including without limitation, as follows: (a) Section 1129(a)(1) - Compliance of the Second Amended Plans with Applicable Provisions of the Bankruptcy Code. (i) Section 1122 and 1123(a)(1) - Proper Classification. The classification of Claims and Interests under the Second Amended Plans are proper under the Bankruptcy Code. Article 3 of the Second Amended Plans provides for the classification of Claims and Interests into separate Classes, based on differences in the legal nature or priority of such Claims and Interests (other than Administrative Claims and Priority 18

19 Tax Claims, which are addressed in Article 2 of the Second Amended Plans and which are not required to be designated as separate Classes pursuant to section 1123(a)(1) of the Bankruptcy Code). Pursuant to sections 1122(a) and 1123(a)(1) of the Bankruptcy Code, the Second Amended Plans collectively establish 88 separate classes for holders of Claims against and Interests in the Debtors, as more specifically set forth in Exhibit C to the Corrected Ballot Report, based on their different rights and attributes. The classification of Claims and Interests created under the Second Amended Plans were not done for any improper purpose and do not unfairly discriminate between or among Holders of Claims or Interests. Additionally, each of the Claims or Interests in a particular class is substantially similar to the other Claims or Interests in such class, as required by section 1122(a) of the Bankruptcy Code. The Debtors have properly classified claims under the Second Amended Plans so as to satisfy section 1122 of the Bankruptcy Code. (ii) Section 1123(a)(2) - Specification of Unimpaired Classes. Articles 3 and 4 of the Second Amended Plans specify the Classes of Claims and Interest that are Unimpaired under the Second Amended Plans. As a result thereof, the requirements of section 1123(a)(2) of the Bankruptcy Code have been satisfied. (iii) Section 1123(a)(3) - Specification of Treatment of Impaired Classes. Article 5 of the Second Amended Plans specifies the treatment of each Impaired Class under the Second Amended Plans. As a result thereof, the requirements of section 1123(a)(3) of the Bankruptcy Code have been satisfied. (iv) Section 1123(a)(4) - No Discrimination. Article 5 of the Second Amended Plans uniformly provides for the same treatment of 19

20 each Claim or Interest in a particular Class, unless the Holder of a particular Claim or Interest has agreed to a less favorable treatment with respect to such Claim or Interest. As a result thereof, the requirements of section 1123(a)(4) of the Bankruptcy Code have been satisfied. (v) Section l123(a)(5) - Implementation of the Second Amended Plans. Article 8 and various other provisions of the Second Amended Plans specifically provide in detail for an adequate and proper means for the implementation of the Second Amended Plans. Among other things, the Second Amended Plans include provisions relating to (i) the Debtors' continued corporate existence (subject to the reorganization and substantive consolidation of certain Debtors on the Effective Date), (ii) the entry by the Debtors into the Exit Financing Documents, (iii) preservation of certain rights of action by the Debtors, (iv) the revesting in the Reorganized Debtors, on the Effective Date, of the property of the Debtors' estates not disposed of under the Plan, (v) the selection of the initial managers, partners, directors and officers for the Reorganized Debtors, and (vi) various compromises and settlements (described more fully below). Other Articles of the Second Amended Plan also set forth means for the implementation of the Plan: Article 9 includes provisions regarding distributions under the Plan, and also provides the procedures for resolving disputed, contingent, and unliquidated Claims, Article 13 provides for the retention of jurisdiction by the Court over certain unresolved matters, and Article 12 provides for, among other things, the discharge of the Debtors. Each such implementation provision is consistent with and authorized by section 1123(a) of the Bankruptcy Code. The provisions of Article 8 of certain of the Second Amended Plans provide for the transfer to each of Regions Bank, Fifth Third Bank and Fiddler s Debt Investor LLC, as assignee 20

21 of Colonnade Naples Land, LLC, of collateral securing some or all of their respective Allowed Secured Claims, subject to the applicable CDD Bond Claims and Allowed Secured Real Estate Tax Claims as restructured in accordance with the applicable Second Amended Plan. The Court finds that the transfer of collateral back to such lenders, subject to the de-acceleration and restructure, as applicable, of the CDD Bond Claims under the Second Amended Plans, is authorized by section 1123(a)(5) of the Bankruptcy Code and is not proposed in bad faith. As a result thereof, the requirements of section 1123(a)(5) of the Bankruptcy Code have been satisfied. (vi) Section 1123(a)(6) - Voting Power of Equity Securities. Article 8, Section of the Second Amended Plans prohibit the issuance of nonvoting equity securities in the Reorganized Debtors. As a result thereof, the requirements of section 1123(a)(6) of the Bankruptcy Code have been satisfied. (vii) Section 1123 (a)(7) - Selection of Officers and Directors. Article 8 of the Second Amended Plans properly and adequately describes the identity of all the individuals proposed to serve as managers, members, partners, directors and officers of the Reorganized Debtors on or after the Effective Date. Furthermore, the appointment of such managers, members, partners, officers and directors are consistent with the interests of the holders of Claims against and Interests of the Debtors, and with public policy. As a result thereof, the requirements of section 1123(a)(7) of the Bankruptcy Code have been satisfied. (viii) Section 1123(b) Additional Plan Provisions. The Second Amended Plans contain various provisions that may be construed as discretionary but are not required for Confirmation under the Bankruptcy Code. Each of these 21

22 additional plan provisions is appropriate and consistent with the applicable provisions of the Bankruptcy Code. As a result thereof, the requirements of section 1123(b) of the Bankruptcy Code have been satisfied. (b) Section 1129(a)(2) --- Compliance by the Debtors with the Applicable Provisions of the Bankruptcy Code The Debtors, as proponents of the Second Amended Plans, have complied with all applicable provisions of the Bankruptcy Code and the Bankruptcy Rules, including, without limitation, sections 1123, 1125, 1126 and 1127 of the Bankruptcy Code and Bankruptcy Rules 3016, 3017, 3018, 3019 and The Indenture Trustee argued that the Second Amended Plans should not be confirmed because the Debtors violated sections 1125 and 1126 of the Bankruptcy Code in connection with solicitation of the Second Amended Plans. As found by the Court in connection with the denial of the Improper Solicitation Motion, the Debtors have fully and properly complied with the provisions of sections 1125 and 1126 of the Bankruptcy Code and with Bankruptcy Rules 3016, 3017 and 3018 regarding disclosure and notice. In addition, this Court entered the Order Approving Disclosure Statement, specifically finding, after a duly noticed hearing, that the Second Amended Disclosure Statement contained adequate information within the meaning of section 1125(a) of the Bankruptcy Code. As a result, the Debtors have satisfied the requirements of section 1129(a)(2) of the Bankruptcy Code. Good Faith. (i) Section 1129(a)(3) --- The Second Amended Plans Were Proposed in The Debtors have proposed the Second Amended Plans in good faith and not by any 22

23 means forbidden by law. In determining that the Second Amended Plans have been proposed in good faith, the Court has examined the totality of the circumstances surrounding the filing of the Chapter 11 Cases, the Second Amended Plans themselves and the process leading to their formulation. The good faith of Debtors is evident from the history of these Chapter 11 cases. There was a genuine need for chapter 11 relief on the Petition Date. The voluntary petitions were not filed to delay or frustrate creditors. These Chapter 11 cases are complex, there was a lack of liquidity at the time of the petitions and the Debtors needed breathing room. The Debtors good faith is further evident by the overwhelming creditor support and votes received in favor of confirmation of the Second Amended Plans. The Second Amended Plans are the product of arm's-length negotiations between the Debtors and each of Regions Bank, Fifth Third Bank, Iberia Bank, Textron Financial Corporation, MUNB Holdings, Ltd, Fiddler s Debt Investor LLC, as assignee of each of Colonnade Naples Land, LLC and KeyBank, N.A., Fiddler s Land Investor, LLC, as assignee of Colonnade Naples Land, LLC, the Committee, the Ad Hoc Homeowners Committee and the Golf Steering Committee. The Indenture Trustee Objection argues that the Second Amended Plans violate 11 U.S.C. 1129(a)(3) as not being proposed in good faith because: (i) the Second Amended Plans attempt to restructure the CDD Bond Claims without giving the Bondholders cramdown (11 U.S.C. 1129(b)) protections; (ii) the Second Amended Plans violate state and federal law; (iii) the Debtors improperly solicited the homeowners in violation of 11 U.S.C. 1125; 10 (iv) the 10 The Objection essentially incorporates the Improper Solicitation Motion and argues that the Second Amended Plans were not proposed in good faith because the Debtors allegedly improperly solicited the Homeowners in connection with the Second Amended Plans. As discussed above, the Court conducted a full evidentiary hearing on the Improper Solicitation Motion, and on June 20, 2011, entered the Order Denying the Improper Solicitation Motion. 23

24 Debtors improperly influenced the CDDs by threatening a funding shortfall; (v) the Second Amended Plans contain favorable treatment to insiders and related entities; and (vi) the Second Amended Plans restructure debt for the benefit of junior secured creditors i.e., Regions Bank and Fifth Third Bank. There was no evidence presented for this Court to find that the Chapter 11 petitions were filed as an attempt to delay or frustrate the efforts of creditors to enforce their rights. Moreover, the Debtors insider affiliate, Gulf Bay Capital, Inc. ( Gulf Bay ), provided DIP financing on a phased and as-needed basis. Mr. Ferrao, through Gulf Bay (which is wholly owned by him), never used his position as a DIP lender to squeeze out junior interests. The Court finds that the Debtors have no obligation, legally or economically, to enhance the rights or the collateral of the Bondholders. The Second Amended Plans de-accelerate, restructure and propose to repay in full, with interest, the off roll CDD Bond Claims owed by the respective Debtors to the respective CDD, each of which the Court notes have accepted the proposed treatment, by voting to accept the Second Amended Plans. The Court further finds that the two (2) year moratorium in regard to the commencement of payments on certain of the offroll CDD Bond Claims and the addition of interest thereon is reasonable and proposed in good faith. The good faith of the Second Amended Plans and the Debtors in connection therewith is further evident from the unanimous support received from the multiple sophisticated creditor constituencies, many of whom are continuing to accept risk under the Second Amended Plans and to make concessions. Specifically, Fifth Third Bank and Regions Bank have agreed not to seek any alleged deficiency claims. Moreover, Fifth Third Bank has agreed to a release price on 24

25 the Fifth Third Lots being retained by the Debtors in accordance with the Fifth Third Settlement, as incorporated into the Second Amended Plans. Likewise, Iberia Bank, Textron and MUNB Holdings, Ltd. are supporting the Second Amended Plans, have agreed to a restructure of their debt and are assuming future risk under the Second Amended Plans. The Golf Club Members are taking risks as to the ultimate salability of their first mortgage collateral. The Exit Financing Lender is a sophisticated lender and is prepared to proceed with funding of the Exit Facility upon satisfaction of all conditions precedent, as set forth in the Second Amended Plans and the Exit Financing Documents. The Court also finds that Mr. Ferrao, through his wholly owned company, Gulf Bay 400, L.P., acquired those certain prepetition tax certificates listed on US Bank Exhibit 18. However, the purchase of such tax certificates, which relate to certain of the Debtors 2008 unpaid real estate taxes and which are proposed to be repaid under the Second Amended Plans over a period of five (5) years, in accordance with section 1129(a)(9) of the Bankruptcy Code on the same terms as the other delinquent tax claims similarly situated, is not bad faith as to any creditor constituency. Additionally, the Court finds that the proposed repayment on the Effective Date of the outstanding DIP facility made by Gulf Bay to the Debtors throughout the Chapter 11 cases is not evidence of bad faith. In fact, the payment in full of the DIP Facilities upon plan consummation is commonplace in Chapter 11 cases. The Court also finds that Mr. Ferrao s contribution of the equity interests in GB 31, Ltd, and as a result the contribution of the GB 31 Land (a/k/a Runaway Bay) with an appraised value of $16.3 million, for the payment of $7,048,000 by the Debtors to Mr. Ferrao, is not evidence of 25