kl07005.htm

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HNjFkblhnsg2IzboGDwk5VUqIVWZRtw0yeKqtT95rPwsEY060Kd6RtJrbfCbatg/ EnIfymU89JuEwbgbKoSXeg== 0000922423-09-000459.txt : 20090714 0000922423-09-000459.hdr.sgml : 20090714 20090713180350 ACCESSION NUMBER: 0000922423-09-000459 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20090714 DATE AS OF CHANGE: 20090713 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Thomas Mark CENTRAL INDEX KEY: 0001451227 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O KRAMER LEVIN NAFTALIS & FRANKEL LLP STREET 2: 1177 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10036 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MIDWAY GAMES INC CENTRAL INDEX KEY: 0001022080 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 222906244 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-49599 FILM NUMBER: 09942612 BUSINESS ADDRESS: STREET 1: 2704 WEST ROSCOE STREET CITY: CHICAGO STATE: IL ZIP: 60618 BUSINESS PHONE: 7739612222 MAIL ADDRESS: STREET 1: 2704 WEST ROSCOE STREET CITY: CHICAGO STATE: IL ZIP: 60618 SC 13D/A 1 kl07005.htm SCHEDULE 13D AMENDMENT NO. 1 kl07005.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

__________

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO

RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

Amendment No. 1

Midway Games, Inc.

(Name of Issuer)

Common Stock, par value $.01 per share

(Title of Class of Securities)

598-148-104

(CUSIP Number)

Peter Kolevzon, Esq.

Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, New York 10036

(212) 715-9100

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

July 11, 2009

(Date of Event Which Requires Filing

of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: ¨

(Continued on following pages)

(Page 1 of 7 Pages)

CUSIP No. 598-148-104		13D		Page 2 of 7 Pages
1	NAMES OF REPORTING PERSONS Acquisition Holdings Subsidiary I, LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) See Item 2
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER 0
		8	SHARED VOTING POWER 0
		9	SOLE DISPOSITIVE POWER 0
		10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES (see instructions) [ ]
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 0%
14	TYPE OF REPORTING PERSON (see instructions) CO

CUSIP No. 598-148-104		13D		Page 3 of 7 Pages
1	NAMES OF REPORTING PERSONS MT Acquisition Holdings LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) See Item 2
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER 0
		8	SHARED VOTING POWER 0
		9	SOLE DISPOSITIVE POWER 0
		10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES (see instructions) [ ]
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 0%
14	TYPE OF REPORTING PERSON (see instructions) CO

CUSIP No. 598-148-104		13D		Page 4 of 7 Pages
1	NAMES OF REPORTING PERSONS Mark Thomas
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) See Item 2
3	SEC USE ONLY
4	SOURCE OF FUNDS (see instructions) OO
5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ]
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7	SOLE VOTING POWER 0
		8	SHARED VOTING POWER 0
		9	SOLE DISPOSITIVE POWER 0
		10	SHARED DISPOSITIVE POWER 0
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES (see instructions) [ ]
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 0%
14	TYPE OF REPORTING PERSON (see instructions) IN

SCHEDULE 13D

This Amendment No. 1 (the “Amendment”) amends and supplements the Schedule 13D previously filed with the Securities and Exchange Commission (the “SEC”) on November 28, 2008 (the “Schedule 13D”, and together with the Amendment, the “Statement”)) by Acquisition Holdings Subsidiary I, LLC (“Acquisition Holdings”), MT Acquisition Holdings LLC (“MT Acquisition”) and Mark Thomas (“Mr. Thomas”, and collectively with Acquisition Holdings and MT Acquisition, the “Reporting Persons”) with respect to the common stock, par value $0.01 per share (the “Common Stock”), of Midway Games, Inc., a Delaware corporation (the “Issuer”) as follows:

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended to add the following:

On July 11, 2009, pursuant to a Settlement Agreement (described in further detail in Item 6), the Reporting Persons granted the Committee (as defined below), on behalf of the Estates (as defined below) and their general unsecured creditors, an irrevocable proxy to vote and dispose of the 80,339,266 shares of Common Stock beneficially owned by the Reporting Persons (the “Shares”) on the terms and conditions set forth in the Settlement Agreement.

Except as disclosed in this Statement, the Reporting Persons have no current plans or proposals which relate to or would result in any of the events described in Items (a) through (j) of the instructions to Item 4 of Schedule 13D.

Item 5. Interest in Securities of the Issuer.

Item 5 of the Schedule 13D is hereby amended and restated as follows:

(a)-(b) As of the date hereof, the Reporting Persons do not beneficially own, or have power to vote or dispose of, any shares of Common Stock.

(c) On July 11, 2009, pursuant to a Settlement Agreement (described in further detail in Item 6), the Reporting Persons granted the Committee, on behalf of the Estates and their general unsecured creditors, an irrevocable proxy to vote and dispose of the Shares. Except for the disposition of the Shares effected by the Settlement Agreement, none of the Reporting Persons identified in Item 2 have effected any other transactions in the Common Stock during the past 60 days.

(d) Not applicable.

(e) On July 11, 2009, the Reporting Persons ceased to be the beneficial owner of more than 5.0% of the Common Stock.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended to add the following:

Settlement Agreement

On June 3, 2009, the Reporting Persons entered into a Settlement Agreement with the Official Committee of Unsecured Creditors (the “Committee”) of the chapter 11 bankruptcy estates (the “Estates”) of the Issuer, Midway Home Entertainment Inc., Midway Amusement Games, LLC, Midway Interactive Inc., Surreal Software Inc., Midway Studios – Austin Inc., Midway Studios – Los Angeles Inc., Midway Games West Inc., Midway Home Studios Inc. and Midway Sales Company, LLC (the “Settlement Agreement”), pursuant to which the Reporting Persons agreed to grant the Committee, on behalf of the Estates and their general unsecured creditors, an irrevocable proxy to vote the Shares (the “Proxy”). The ultimate disposition of the securities will be determined by the Committee, on behalf of the Estates and their general unsecured creditors. The Settlement Agreement, including the Proxy, became effective and binding on July 11, 2009, the date that the order approving the Settlement Agreement became a final order. Under the Settlement Agreement, the Committee acknowledged a first priority secured claim of Acquisition Holdings in the amount of $5 million against the Estates, and the Committee and the Reporting Persons exchanged mutual releases and other consideration, as more fully described in the Settlement Agreement.

The foregoing summary of the terms of the Settlement Agreement is qualified in its entirety by reference to the Settlement Agreement, a copy of which is included as Exhibit 99.2 to this Statement and is incorporated herein by reference.

Item 7. Material to be Filed as Exhibits.

99.1 Agreement of joint filing pursuant to Rule 13d-1(f) promulgated under the Securities Exchange Act of 1934, as amended.

99.2 Settlement Agreement.

SIGNATURES

After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this Statement is true, complete and correct.

Date: July 13, 2009

ACQUISITION HOLDINGS SUBSIDIARY I, LLC

By: MT Acquisition Holdings LLC

By: /s/ MarkThomas

Name: Mark Thomas

Title: President

MT ACQUISITION HOLDINGS LLC

Name: Mark Thomas, as an individual

EX-99.1 2 kl07005_ex99-1.htm AGREEMENT OF JOINT FILING kl07005_ex99-1.htm

EXHIBIT 99.1

Agreement of Joint Filing

Pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned persons hereby agree to file with the Securities and Exchange Commission (the “SEC”) Amendment No. 1 to the Schedule 13D filed with the SEC on November 28, 2008 (the “Statement”) to which this Agreement is attached as an exhibit, and agree that such Statement, as so filed, is filed on behalf of each of them.

IN WITNESS WHEREOF, the undersigned have executed this Agreement.

Dated: July 13, 2009

ACQUISITION HOLDINGS SUBSIDIARY I, LLC

By: MT Acquisition Holdings LLC

By: /s/ MarkThomas

Name: Mark Thomas

Title: President

MT ACQUISITION HOLDINGS LLC

Name: Mark Thomas, as an individual

EX-99.2 3 kl07005_ex99-2.htm SETTLEMENT AGREEMENT kl07005_ex99-2.htm

Exhibit 99.2

EXECUTION VERSION

SETTLEMENT AGREEMENT

SETTLEMENT AGREEMENT made as of this 3rd day of June 2009 (the “Agreement”) by and among the Official Committee of Unsecured Creditors (the “Committee”) of the chapter 11 bankruptcy estates (the “Estates”) of Midway Games, Inc. (“Midway”), Midway Home Entertainment Inc., Midway Amusement Games, LLC, Midway Interactive Inc., Surreal Software Inc., Midway Studios - Austin Inc., Midway Studios - Los Angeles Inc., Midway Games West Inc., Midway Home Studios Inc., and Midway Sales Company, LLC (each a “Debtor” and collectively, the “Debtors” or the “Company”), and Mark E. Thomas (“Thomas”), Acquisition Holdings Subsidiary I, LLC (“AHS”) and MT Acquisition Holdings LLC (“MTAH” and, collectively with Thomas and AHS, the “Thomas Parties”; and collectively with the Committee, on behalf of the Estates and the Estate’s unsecured creditors, the “Parties”).

The Parties have engaged in extensive, good faith, arms-length negotiation, based upon which the Parties now desire to settle and resolve certain disputes between them in connection with the Thomas Parties’ claims against and interests in the Debtors and the Estate’s claims against the Thomas Parties (i) regarding the nature of the Thomas Parties’ claims and interests in the Debtors and (ii) arising from certain events and circumstances preceding the filing of the Debtors’ chapter 11 cases (the “Cases”) and occurring or arising during the Cases.

The terms and conditions described herein are part of a comprehensive compromise, each element of which is consideration for the other elements and an integral aspect of the restructuring proposed herein.

RECITALS

A. On February 12, 2009 (the “Petition Date”), each of the Debtors filed a voluntary petition for relief under chapter 11, title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The Cases are being jointly administered under bankruptcy case 09-10465 (KG).

B. On February 23, 2009, the United States Trustee for the District of Delaware (the “U.S. Trustee”) appointed the Committee.

C. Prior to the Petition Date, Midway was a publicly traded company, with its common stock trading on the New York Stock Exchange under the symbol MWY. Until November 28, 2008, approximately 87% of Midway’s common shares were owned and controlled by Sumner M. Redstone (“Redstone”), individually, and through two affiliated companies that he owned and controlled, National Amusements Inc. (“NAI”) and Sumco Inc. (“Sumco” and, collectively with Mr. Redstone and NAI, the “Redstone Parties”).

D. On February 29, 2008, the Debtors entered into certain transactions with NAI (the “February 2008 Transactions”) pursuant to which NAI made loans to the Debtors in the aggregate amount of $90 million, consisting of: (i) a $30 million loan facility (consisting of a term loan and a revolving credit facility) secured by substantially all of Midway’s assets (the “Secured Facility”), (b) a $40 million unsecured loan facility (the “Unsecured Facility”), and

(c) a $20 million unsecured subordinated loan facility (the “Subordinated Facility” and, collectively with the Secured Facility and the Unsecured Facility, the “Facilities”). The Committee has alleged, inter alia, that the Midway Board of Directors violated its fiduciary duties in connection with the creation of the Facilities and that the Facilities should be recharacterized as equity.

E. On November 28, 2008, the Redstone Parties sold to AHS for an aggregate purchase price of $100,000 (i) all of their approximate 87% equity stake in Midway (the “Majority Shares”), (ii) a 100% participation interest in the Secured Facility, and (iii) a 100% participation interest in the Unsecured Facility (the transactions described in (i), (ii) and (iii) above, collectively, the “Redstone-Thomas Transaction”). Subsequently, NAI formally assigned all of its rights and interests in the Secured Facility and Unsecured Facility to AHS.

F. Upon commencing the Cases, the Debtors immediately moved the Bankruptcy Court for authority to use the cash collateral of AHS subject to certain terms and conditions negotiated by AHS with the Debtors (the “Cash Collateral Motion”). Certain noteholders holding notes issued by certain of the Debtors (the “Objecting Noteholders”) filed a preliminary objection to the Cash Collateral Motion and opposed the Cash Collateral Motion at the February 13, 2009 interim hearing.

G. On February 17, 2009, the Bankruptcy Court entered an interim order (the “Interim Cash Collateral Order”) authorizing some of the relief requested in the Cash Collateral Motion, subject to modifications addressed on the record of the February 13, 2009 hearing. The Interim Cash Collateral Order provided, inter alia, (i) that all interest accruing under the Secured Facility be paid by the Debtors into a segregated account maintained in the name of the Debtors subject to AHS’s liens (the “Segregated Interest Account”) until further order of the Bankruptcy Court and (ii) permitted AHS to receive as adequate protection the out of pocket expenses of AHS for reasonable professional fees (including his or its legal and financial advisors) incurred on behalf of AHS both prior to the Petition Date and during the period covered by the Interim Cash Collateral Order (“AHS’s Professional Fees”). Subsequent to the entry of the Interim Cash Collateral Order, the Debtors paid AHS’s Professional Fees in the aggregate sum of $287,332.63 (the “Professional Fee Payments”).

H. Following its formation, the Committee joined in the Objecting Noteholders’ objection to the Cash Collateral Motion. The Objecting Noteholders and, subsequently, the Committee contended, among other things, that the terms and conditions that AHS had demanded in return for permitting the Debtors’ use of cash collateral were overreaching, that AHS was and is substantially over-secured in its collateral and, hence, did not require the various protections that were proposed in favor of AHS in the Cash Collateral Motion, and that the unique nature of the events and insider transactions that had occurred prepetition created material claims against various insiders, the Thomas Parties, and others that required investigation by the Committee.

I. In response to the objections to the Cash Collateral Motion, AHS filed its own objection to the Cash Collateral Motion and a cross-motion for relief from the automatic stay to enforce its rights and remedies under the Secured Facility and Unsecured Facility if the Cash Collateral Motion was not approved in a manner acceptable to

AHS, contending that AHS’s collateral is declining in value and the Debtors cannot provide AHS with adequate protection.

J. Following evidentiary hearings that took place on April 1 and April 6, 2009, the Bankruptcy Court sustained the Committee’s objection to the Cash Collateral Motion and, on April 9, 2009, entered (i) an order authorizing the Debtors’ use of cash collateral on terms and conditions as set forth therein (the “Final Cash Collateral Order”) and (ii) an order denying AHS’s cross-motion for relief from the automatic stay (the “Order Denying the Cross-Motion”; collectively with the Final Cash Collateral Order, the “Orders”). As part of the Cash Collateral Order, the Bankruptcy Court granted the Committee the right to “investigate, assert and/or prosecute on behalf of Debtors’ estates any and all claims of the estates against any party that arise out of, or relate to (a) any transaction by and between NAI or any of its affiliates or shareholders on the one hand, and any of the Debtors on the other hand, (b) transactions that led to AHS, and/or any of AHS’ affiliates, insiders or shareholders, becoming the majority owner of the Debtors and the owner of claims against the Debtors previously held by NAI and (c) any action or omission of any insider or affiliate of the Debtors including, without limitation, NAI, AHS, or any of their respective affiliates, insiders or shareholders, in connection with any of the Debtors” in the Cases.

K. The Cash Collateral Order continued to permit interest payments to be segregated into the Segregated Interest Account subject to AHS’s liens, but prohibited payments of AHS’s Professional Fees, subject to further Court order.

L. On April 20, 2009, AHS appealed each of the Orders and filed with the Bankruptcy Court a motion for leave to appeal each of the Orders under 28 U.S.C. § 158(a) (collectively, each of AHS’s appeals and its motion for leave to appeal, the “Appeals”).

M. On May 11, 2009, the Committee filed a complaint against a number of parties, including the Thomas Parties, alleging claims arising out of and in connection with the February 2008 Transactions and the Redstone-Thomas Transaction (the “Pending Actions”).

N. The Parties have engaged in good faith negotiations regarding resolving (i) the Estates’ claims against the Thomas Parties (including without limitation the claims asserted in the Pending Actions), (ii) the Thomas Parties’ claims against the Estates and interests in the Debtors and (iii) the Appeals.

AGREEMENT

NOW, THEREFORE, the Parties, intending to be legally bound, and in exchange for valuable consideration the receipt of which is acknowledged, agree and stipulate as follows:

1. INCORPORATION OF RECITALS

The Recitals set forth above are incorporated by reference.

2. EFFECTIVENESS OF AGREEMENT

This Agreement shall be submitted for approval by the Bankruptcy Court in a motion filed by the Committee (the “Settlement Motion”) to approve the compromises contained herein pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure and shall become effective and binding on the date (the “Settlement Effective Date”) on which the order approving the Settlement Motion has become a final order (the “Settlement Order”). The Committee shall use reasonable efforts to procure approval of this Agreement by the Bankruptcy Court.

3. SETTLEMENT PAYMENT

3.1. Consideration to Thomas Parties. In full and complete satisfaction of all claims, liens, security interests, rights and interests of any of the Thomas Parties in the Debtors or any property of the Debtors (collectively, the “Thomas Claims”), the Thomas Parties shall receive the following:

a. Allowed Settlement Claim. Effective as of the Settlement Effective Date, AHS shall have an allowed claim against the Estates in the aggregate amount of $5,000,000 (the “Settlement Claim”). The Settlement Claim shall be secured by a valid, binding, perfected, first in priority lien and security interest in those assets that constitute collateral under the Secured Facility and proceeds thereof (the “Collateral”), provided, that the security interest securing the Settlement Claim shall not be subject to surcharge under section 506(c) of the Bankruptcy Code or the equities of the case exception to section 552(b) of the Bankruptcy Code, and further provided that the Debtors may not grant, to any person or entity, liens on or security interests in the Collateral that are senior to the security interest securing the Settlement Claim. The Settlement Claim and the security interest securing the Settlement Claim shall be effective as of the date of the Settlement Effective Date without any further action by the Thomas Parties or the Debtors and without the necessity of the execution, filing or recordation of any financing statements, security agreements, lien applications or other documents. The security interest securing the Settlement Claim shall terminate automatically upon receipt of the Settlement Payment (as defined in Section 3.1(b)).

b. Amount and Timing of Settlement Payment. Upon the earlier of (i) the date upon which the sale of substantially all of the Debtors’ assets closes (“Sale Date”) and (ii) the effective date of a confirmed plan of reorganization or liquidation (“Plan”) in the Cases (“Plan Effective Date” and either of the Sale Date and Plan Effective Date, as applicable, a “Settlement Payment Date”), the Estates shall pay to AHS in cash, by wire transfer of immediately available funds to an account maintained with a depository located in the United States and specified by AHS, the amount of the Settlement Claim, less the Professional Fee Payments (the “Settlement Payment”), provided that in the event that a sale of substantially all of the Debtors’ assets under (i) of this Section 3.1(b), AHS may request that the Settlement Payment be paid to AHS at closing directly from the sale proceeds.

c.	Releases. Effective as of the Settlement Effective Date, the releases contained in Section 5 hereof shall become effective and binding in all respects.

4. DISPOSITION OF THOMAS CLAIMS AND MAJORITY SHARES

4.1. Upon Closing of Sale(s). Each of the Thomas Parties hereby consents to any sale of substantially all of the Debtors’ assets, or to any sales of assets that, collectively, will result in the sale of substantially all of the Debtors’ assets, so long as such sale or sales result in the Thomas Parties’ timely receipt of the Settlement Payment, as provided herein. Each of the Thomas Parties further agrees that any such sale(s) of assets will be free and clear (within the meaning of section 363(f) of the Bankruptcy Code) of all liens, claims, interests and other encumbrances that secure the Settlement Claim, provided such liens, claims, interests and other encumbrances attach to the proceeds of any such sales with the validity, priority, force and effect as set forth in Section 3.1(a) of this Agreement.

4.2. No Further Claims. Upon the receipt of the Settlement Payment but subject to Sections 5.5 and 5.6(b) hereof, (a) none of the Thomas Parties will have any claim arising out of or in any way related to the Redstone-Thomas Transaction, against anyone, including, without limitation, the Committee, the Debtors or the Estates, or against any property of any of the Estates and (b) none of the Thomas Parties will assert or will be entitled to assert any further right of payment from the Committee, the Debtors or the Estates with respect to any such claim. For the avoidance of doubt, none of the Thomas Parties is, by virtue of Section 4.2, waiving any claim which may later be asserted as a Permitted Counterclaim (as hereinafter defined).

4.3. No Interest or Fees. No interest will accrue on the Settlement Claim. Furthermore, the Thomas Parties shall not be entitled to recover from the Estates or from any property of any of the Estates any interest, fees or expenses in connection with either the Thomas Claims or the Settlement Claim.

4.4. Majority Shares. Effective upon the Settlement Effective Date, the Thomas Parties hereby grant to the Committee, on behalf of the Estates and their general unsecured creditors, an irrevocable proxy to vote the Majority Shares (the “Proxy”) and do hereby forever and irrevocably relinquish the right to vote the Majority Shares in favor of the Committee pursuant to the Proxy or pursuant to the dictates of a Plan supported by the Committee and confirmed by the Bankruptcy Court. The ultimate disposition of the Majority Shares will be determined by the Committee, on behalf of the Estates and their general unsecured creditors, in the context of a Plan supported by the Committee and confirmed by the Bankruptcy Court, or, if the Cases are converted to chapter 7 bankruptcy cases, by the chapter 7 trustee of the Midway’s bankruptcy estate.

5. RELEASES.

5.1. The Estates’ Release of the Thomas Parties: Effective as of the Settlement Effective Date, the Committee, on behalf of the Estates and any other party having standing to bring the causes of action released pursuant to this Section 5,1, hereby RELEASE, ACQUIT and