Opinion
Charles W. Mulcahy, Jr., Boston, Mass., for Trustees of the Debtor.
James F. Freeley, Jr., Boston, Mass., for United Transp. Union.
Steven B. Levine, Brown, Rudnick, Freed & Gesmer, Boston, Mass., for City of Cambridge, Mass.
James A. Arpante, Office of Atty. Gen., Albany, N.Y., for the State of New York.
Joseph H.B. Edwards, Bingham, Dana & Gould, Boston, Mass., for First Mortgage Bondholders.
Linda D. Chase, Peabody & Arnold, Boston, Mass., for Second Mortgage Bondholders.
OPINION
re
CONFIRMATION OF THE AMENDED PLAN
FRANK J. MURRAY, Senior District Judge.
The Amended Plan of reorganization of Boston and Maine Corporation ("B & M"), approved by the Interstate Commerce Commission ("ICC") and certified to this court, approved by this court, 46 B.R. 930, and submitted to creditors entitled to vote for acceptance or rejection of the Amended Plan, is confirmed by the court. Simultaneously with the filing of this opinion, the order of the court confirming the plan will be entered.
All classes of creditors (except Class 8 creditors holding claims for pre-bankruptcy taxes), entitled to vote for acceptance or rejection of the plan, have accepted in writing the Amended Plan by large majorities.
None of the creditors in Class 8 holding claims for payment of pre-bankruptcy tax assessments (other than such claims secured by valid liens) has been reported as voting on the question of confirmation of the Amended Plan. Under these circumstances, and in conformity with the provisions of Section 77(e) of the Bankruptcy Act [11 U.S.C. § 205(e) ], the court will treat the Class 8 creditors as not accepting the plan. Nevertheless, Section 77(e) empowers the court to confirm the plan, if satisfied that certain conditions have been fulfilled, even if a class does not accept the plan.
In considering the exercise of such power, the court finds that nothing has transpired since the approval of the Amended Plan by the court, or since stating the conclusions or reasons reached for the approval of the plan, in such manner as to disturb or unsettle the basis of the court's approval of the Amended Plan. Moreover, the court finds that the specified conditions in Section 77(e) for confirmation of the plan, notwithstanding the non-acceptance of the Amended Plan by the Class 8 creditors, have been satisfied.
At the hearing on the Trustees' petition for confirmation of the Amended Plan, the City of Cambridge ("Cambridge") withdrew its objection to confirmation of the plan. No other objections to confirmation were filed in writing, and no objections to confirmation of the plan were raised at the hearing. Cambridge also withdrew its motion to stay further proceedings on confirmation of the plan pending Cambridge's appeal to the Circuit Court of Appeals from the court's order approving the plan.
Where there has been no change affecting the basis of the court's approval of the Amended Plan, the pendency of appeals taken from the court's order of approval does not in the opinion of the court, justify delay in confirmation. Accordingly, as noted above, the order of the court confirming the Amended Plan shall be entered.