UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW JERSEY
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In re:
THE CLARIDGE HOTEL AND CASINO CORPORATION and THE
CLARIDGE AT PARK PLACE, INCORPORATED,
Chapter 11
Jointly
Administered
Case No.
99-17399
Debtors.
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In re:
ATLANTIC CITY BOARDWALK ASSOCIATES, L.P.,
Chapter 11
Case No. 99-18903
Debtor.
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JOINT PLAN OF REORGANIZATION FOR DEBTORS UNDER CHAPTER 11 OF
THE BANKRUPTCY CODE PROPOSED BY GB HOLDINGS, INC.
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
One Riverfront Plaza
Newark, New Jersey 07102-5497
(973) 596-4500
Attorneys for GB Holdings,Inc.
JL-6065
BERLACK, ISRAELS & LIBERMAN
120 West 45th Street
New York, New York 10036
(212) 704-0100
Special Counsel to GB
Holdings, Inc..
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THE JOINT CHAPTER 11 PLAN
GB HOLDINGS, INC. ("Holdings" or "Proponent"), a Delaware Corporation
and the parent corporation of Greate Bay Hotel and Casino, Inc. ("GHBC"), owner
of the Sands Hotel and Casino, Atlantic City, New Jersey, proposes the following
chapter 11 plan of reorganization pursuant to Section 1121(a) of the Bankruptcy
Code for THE CLARIDGE HOTEL AND CASINO CORPORATION and THE CLARIDGE AT PARK
PLACE, INCORPORATED, two of the above-captioned debtors and
debtors-in-possession (the "Claridge Debtors") and ATLANTIC CITY BOARDWALK
ASSOCIATES, L. P. , the third above-referenced debtor, as debtor-in-possession
("ACBA"; collectively, with the Claridge Debtors, the "Debtors").
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS: Whenever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and
the plural, and pronouns stated in the masculine, feminine or neuter gender
shall include the masculine, the feminine and the neuter. Unless the context
requires otherwise, the following words and phrases shall have the meanings set
forth below when used in fully-or-initially-capitalized form in this Plan:
ACBA: Atlantic City Boardwalk Associates, L. P. , a New Jersey
limited partnership.
ACBA Interests: The equity interests in ACBA including, but
not limited to, those represented by any limited partnership, general
partnership or other ownership interests or rights with respect to ACBA, any
options, warrants, calls, subscriptions or other similar rights or other
agreements, commitments or outstanding securities obligating ACBA to issue,
transfer or sell any interests in or to ACBA.
Acquisition: means the special purpose subsidiary of Holdings
which shall acquire the assets of CPPI and ACBA.
Administrative Expense Claims: Collectively, with respect to
ACBA, CPPI or the Corporation, as the case may be, (a) any cost or expense of
administration of the Chapter 11 Case of ACBA, CPPI or the Corporation, as the
case may be, with priority under Section 507(a)(1) of the Bankruptcy Code,
including, without limitation, costs and expenses allowed under Section 503(b)
of the Bankruptcy Code, (b) any fees or charges assessed against the Estate of
ACBA, CPPI or the Corporation, as the case may be, under title 28, United States
Code, Section 1930; and (c) any Claims against ACBA arising following the
Effective Date in connection with or relating to the liquidation,
administration, winding up or dissolution of ACBA or its affairs, including the
filing of any tax returns.
Administrative Office Building: means the real property and
the improvements thereon owned by CPPI and located at 123 Indiana Avenue,
Atlantic City, New Jersey and which by order dated April 5, 2000 of the
Bankruptcy Court was sold to Greate Bay Hotel and Casino, Inc.
Affiliates: As defined in Section 101 of the Bankruptcy Code.
Allowed: With respect to Claims and Interests, (a) any Claim
against or Interest in the Debtors, proof of which is timely filed or by order
of the Bankruptcy Court is not or will not be required to be filed, (b) any
Claim or Interest that has been or is hereafter listed in the schedules of
liabilities filed by the Debtors as liquidated in amount and not disputed or
contingent or (c) any Claim allowed pursuant to this Plan; provided that, in
each such case in (a) and (b) above, either (i) no objection to the allowance
thereof shall have been interposed within the applicable period of time fixed by
this Plan, the Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court or
(ii) if such an objection shall have been so interposed, the Claim or Interest
shall have been allowed by a Final Order (but only to the extent so allowed).
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AOB Escrow Account: means that certain interest bearing escrow
account maintained at the Summit Bank for the benefit of the Indenture Trustee
in which was deposited the sum of $1,500,000 which represented the initial
purchase price paid for the Administrative Office Building.
Assets: means all property of the Estate of each of the
Debtors, and includes the Hotel Assets but excludes the Administrative Office
Building.
Avoiding Power Causes of Action: means rights and remedies
accruing to the Debtors pursuant to Chapter 5 of the Bankruptcy Code, including
11 U.S.C.ss.ss.544(b), 546, 547, 548, 549, 550 or 553(b).
Ballot: The form distributed, together with the Disclosure
Statement, to holders of Claims entitled to vote for the purpose of acceptance
or rejection of this Plan.
Bankruptcy Code: Title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Cases.
Bankruptcy Court: The United States Bankruptcy Court for the
District of New Jersey with jurisdiction over the Chapter 11 Cases and, to the
extent of any reference made pursuant to 28 U. S. C.ss. 157, the United States
Bankruptcy Court for the District of New Jersey, or any court having competent
jurisdiction to enter the Confirmation Order.
Bankruptcy Rules: The Federal Rules of Bankruptcy Procedure,
as amended, promulgated under section 2075 of title 28 of the United States Code
and the Local Rules of the Bankruptcy Court, as applicable from time to time
during the Chapter 11 Cases.
Bar Date: is the last date for filing Claims as fixed by the
Bankruptcy Court.
Business Day: Any day other than a Saturday, Sunday or "legal
holiday" as defined in Bankruptcy Rule 9006 (a).
Causes of Action: means all legal and equitable claims,
demands, or causes of action held by the Debtors against any person, including
Avoiding Power Causes of Action.
Chapter 11 Cases: means the respective cases under chapter 11
of the Bankruptcy Code concerning the Debtors which were commenced on the Filing
Date.
Claim: Any right to (a) payment from any of the Debtors,
whether or not such right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (b) an equitable remedy for breach of performance if
such breach gives rise to a right to payment from either of the Debtors, whether
or not such equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
Claridge Debtors: means CPPI and Corporation.
Class: means a class of Claims or Interests as classified in
the Plan.
Collateral: means any property of an Estate that secures an
Allowed Secured Claim.
Collateral Trust Agreement: means that certain Collateral
Trust Agreement by and among the Company, CPPI, the ACBA and the Collateral
Trustee, dated as of January 31, 1994, as amended, supplemented or modified from
time to time as permitted thereby and by this Indenture.
Committee: Any committee appointed pursuant to Section 1102(a)
of the Bankruptcy Code in the Chapter 11 Cases.
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Confirmation: The entry by the Bankruptcy Court of an order
confirming this Plan.
Confirmation Date: The date on which the Confirmation Order
shall be entered on the docket maintained by the Clerk of the Bankruptcy Court
with respect to the Chapter 11 Cases.
Confirmation Hearing: means the hearing before the Bankruptcy
Court to consider confirmation of the Plan.
Confirmation Order: The order of the Bankruptcy Court
confirming this Plan and approving the transactions contemplated herein.
Contingent Payment: means a Claim held by Webb or United Way,
or their designees, equal to $20 million plus interest from December 1, 1988, at
the rate of 15% per annum compounded quarterly, in any proceeds ultimately
recovered from the operations and/or the sale or refinancing of the Debtors or
their assets in excess of the First Mortgage and other liabilities.
Contingent Payment Right: means any Claim held by a Releasing
Investor (as defined in the Restructuring Agreement) to payment of any amount by
either of the Claridge Debtors or ACBA, as the case may be, under the
Restructuring Agreement.
Corporation: The Claridge Hotel & Casino Corporation, a New
York corporation.
Corporation Interests: The equity interests in the Corporation
including, but not limited to, those represented by shares of capital stock of
the Corporation and any options, warrants, calls, subscriptions or other similar
rights or other agreements, commitments or outstanding securities obligating the
Corporation to issue, transfer or sell any shares of capital stock of the
Corporation.
CPPI: means the Claridge at Park Place, Incorporated, a New
Jersey corporation.
CPPI Guaranty: means that certain guaranty executed by CPPI on
January 31, 1994 evidencing CPPI's guarantee of the Corporation's obligations
under the First Mortgage Notes Indenture and the First Mortgage Notes and all
amendments thereto prior to the date hereof.
CPPI Interests: The equity interests in CPPI including, but
not limited to, those represented by shares of capital stock of CPPI and any
options, warrants, calls, subscriptions or other similar rights or other
agreements, commitments or outstanding securities obligating CPPI to issue,
transfer or sell any shares of capital stock of CPPI, all of which are owned by
the Corporation.
Creditor: means any Person that is the Holder of a Claim
against any of the Debtors that arose on or before the Filing Date or through
and including the Effective Date or a Claim against any of the Estates of the
kind specified in Section 502(g), 502(h) or 502(i) of the Bankruptcy Code.
Debtors: means collectively, the Corporation, CPPI and ACBA.
Deficiency Claim: means the amount by which a Creditor's Claim
exceeds the value of the Collateral that secures such Claim.
DEWNJ: means Del E. Webb New Jersey, Inc., a New Jersey
corporation and a wholly-owned subsidiary of Webb.
Disbursing Agent: means _____________________________.
Disclosure Statement: means the disclosure statement
distributed to holders of Claims entitled to vote for the purpose of accepting
or rejecting this Plan in accordance with Section 1126(b)(1) of the Bankruptcy
Code.
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Disputed: means with respect to Claims, any Claim that is not
Allowed.
Distribution Record Date: means the date on which the
Confirmation Order is signed.
Effective Date: means the first Business Day:
(a) that is at least 11 days after the Confirmation Date;
(b) on which no stay of the Confirmation Order is in effect;
and
(c) on which all conditions in Article XII of the Plan have
been satisfied or have been waived as provided in the Plan.
Employee Claim: means an Unsecured Claim based on salaries,
wages, sales commissions, expense reimbursements, accrued vacation pay,
health-related benefits, incentive programs, employee compensation guarantees,
severance or similar employee benefits.
Estate: means the estate created upon the commencement of each
Case as to each Debtor by Section 541 of the Bankruptcy Code.
Exempt Tax: means any stamp, recording or similar tax or
charge (including any penalties, interest or additions thereto) within the
meaning of Section 1146(c) of the Bankruptcy Code that may be imposed by the
laws of any state upon the transactions contemplated under, or necessary for the
success of, the Plan, including without limitation, any mortgage recording,
securities transfer, deed, realty transfer, documentary transfer or gains taxes.
Expansion Wraparound Note: means the promissory note in the
original principal amount of $17,000,000, dated as of March 17, 1986, given by
ACBA to CPPI, and all amendments thereto prior to the date hereof.
Fee Application: an application of a professional Person under
Section 330, 503 or 506(b) of the Bankruptcy Code for allowance of compensation
and reimbursement of expenses in any Chapter 11 Case.
Fee Claim: a Claim under Section 330, 503 or 506(b) of the
Bankruptcy Code for allowance of compensation and reimbursement of expenses in
any Chapter 11 Case.
FF&E Notes: means those certain promissory notes of various
dates given by ACBA to CPPI evidencing loans made by CPPI to ACBA under the
Wraparound Mortgage to fund the purchase of certain furniture, fixtures,
equipment and other capital items.
Filing Date: means with respect to the Corporation and CPPI,
August 16, 1999, and with respect to ACBA, October 5, 1999.
Final Order: means an order, ruling or judgment that is no
longer subject to review, modification or amendment by appeal or writ of
certiorari.
First Mortgage: means the non-recourse first mortgage upon the
Hotel Assets and all related security agreements and assignments granted by ACBA
to or for the benefit of the holders of the First Mortgage Notes, and all
amendments thereto prior to the date hereof.
First Mortgage Notes: means the 11-3/4% First Mortgage Notes
Due 2002, issued and outstanding under the First Mortgage Notes Indenture.
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First Mortgage Note Claim: means any Claim against the Debtors
by any Holder of a First Mortgage Note, including pursuant to or arising under
the First Mortgage Notes, the First Mortgage, the CPPI Guaranty, the First
Mortgage Notes Indenture, the Collateral Trust Agreement and the Security
Documents.
First Mortgage Notes Indenture: means that certain Indenture,
dated as of January 31, 1994, among the Corporation, CPPI and the Indenture
Trustee. pursuant to which the First Mortgage Notes were issued, and all
amendments thereto prior to the date hereof.
General ACBA Claim: means any unsecured claim against ACBA,
other than an Intercompany Claim.
General CPPI Claim: means any Unsecured Claim against CPPI
other than an Intercompany Claim.
Holder: means the beneficial owner of any Claim or Interest.
Holdings: means GB Holdings, Inc., a Delaware Corporation and
the parent corporation of Greate Bay Hotel and Casino, Inc. ("GBHC"), owner of
the Sands Hotel and Casino, Atlantic City, New Jersey.
Hotel Assets: means the buildings, valet parking facility, and
non-gaming, depreciable, tangible personal property and the underlying land of
the Claridge Hotel and Casino, which are owned by ACBA and leased to CPPI
pursuant to the Operating Leases.
Impaired: means any Claim or Interest that is impaired within
the meaning of section 1124 of the Bankruptcy Code.
Indenture Trustee: Bank of New York, in its capacity as
successor trustee and IBJ Whitehall Bank & Trust Company, in its capacity as
indenture trustee under the First Mortgage Notes Indenture.
Intercompany Claim: means any Claim against one Debtor held by
any other Debtor.
Interests: means the collective reference to the ACBA
Interests, the Corporation Interests and the CPPI Interests.
Local Rules: means the Local Bankruptcy Rules of the District
of New Jersey, as applicable to the Chapter 11 Cases.
Miscellaneous Secured Claim: means any Claim, other than a
First Mortgage Note Claim, that is a Secured Claim.
NJCCC: means the New Jersey Casino Control Commission.
Noteholders Committee: means the Official Committee of First
Mortgage Noteholders
Operating Leases: means the collective reference to the
Operating Lease Agreement between ACBA, as lessor, and CPPI, as lessee, dated as
of October 31, 1993, and the Expansion Operating Lease Agreement between ACBA,
as lessor, and CPPI, as lessee, dated as of March 17, 1986 and, in each case,
all amendments thereto prior to the date hereof.
Person: means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, limited liability
company, estate, person, trust, trustee, United States trustee, unincorporated
organization, government, governmental unit (as defined in the Bankruptcy Code)
or political subdivision thereof, agency, or other person.
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Plan: means this Joint Chapter 11 Plan, as altered, amended or
modified from time to time by the Proponents in accordance with the Bankruptcy
Code, the Bankruptcy Rules and this Plan.
Priority Claim: means any Claim, other than a Priority Tax
Claim or an Administrative Expense Claim, which is entitled to priority in
payment under section 507(a) of the Bankruptcy Code.
Priority Tax Claim: Any Claim which is entitled to priority in
payment under section 507(a)(8) of the Bankruptcy Code.
Record Date: means the date on which Creditors entitled to
vote on the Plan are determined by their record ownership of Claims, which date
shall be the date of entry of an Order of the Bankruptcy Court approving the
Disclosure Statement.
Related Documents: means the Collateral Trust Agreement and
the Security Documents.
Restructuring Agreement: means the agreement, dated October
27, 1988, among the Corporation, CPPI, DEWNJ, ACBA, Robert Swanson, Everett
Mangam, T. Edward Plant, Anthony Atchley, Gerald Heetland, AC Boardwalk Partners
Corp. and First Fidelity Bank, National Association, New Jersey, to restructure
the financial obligations of the Corporation and CPPL
Sands Common Stock: means the 5,652,000 million shares of
common stock of Holdings to be issued and distributed pari passu and pro rata
for the benefit of the holders of First Mortgage Notes.
Schedules: means the schedules of assets and liabilities and
statement of financial affairs, as may have been amended from time to time,
filed by each of the Debtors pursuant to Bankruptcy Rule 1007.
Secured Claim: A Claim under Bankruptcy Code ss. 506 arising
on or before the relevant Filing Date that is secured by a valid, perfected,
enforceable and non-avoidable lien on property of a Debtor or that is subject to
setoff under Bankruptcy Code ss. 553, to the extent of the value of the interest
of the Holder of such Claim in the Debtor's interest in the property, or to the
extent of the amount of the setoff, as applicable, provided, however, that if
the Holder's Class timely elects application of Bankruptcy Code ss. 1111(b)(2),
each Holder's Claim in such Class shall be a Secured Claim in the full amount of
the Holder's Allowed Claim.
Security Documents: means all other documents, pledges,
agreements, guarantees, subordination agreements, assignments or other documents
between the Debtors, the Indenture Trustee or the First Mortgage Note holders
which grant or evidence any legal, contractual or equitable right or remedy of
the holders of the First Mortgage Notes or the Indenture Trustee in, to or
against the Debtors or their property, including the CPPI Cash Collateral
Pledge, the CPPI Security Agreement, the Corporation Pledge Agreement, the
Partnership Cash Collateral Pledge and the Partnership Security Agreement as
such terms are defined in the First Mortgage Notes Indenture.
Self-Parking Garage: means that certain parcel of real
property together with the improvements thereon owned by CPPI on which is
operated a 24-hour self-parking garage.
Trade Claim: An Unsecured Claim of any Person against any of
the Debtors for goods provided and/or services rendered in the ordinary course
by such Person to such Debtor.
Trustee Fee Reserve: The amount of shares of Sands Common
Stock needed to satisfy Section 2.5 of the Plan. Any and all shares in excess of
the actual fees and expenses of the Indenture Trustee ultimately shall be
released to the Holders of Class 3 Claims.
United Way: means the Valley of the Sun United Way.
Webb: means Del Webb Corporation, an Arizona corporation.
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Unsecured Claim: Any Claim other than a Miscellaneous Secured
Claim, an Administrative Expense, a Priority Claim or a Priority Tax Claim.
Wraparound Mortgage: The Expandable Wraparound Mortgage and
Security Agreement between ACBA, as Mortgagor, and CPPI, as Mortgagee, dated as
of October 31, 1983, and all amendments thereto prior to the date hereof.
Wraparound Note: The promissory note in the original principal
amount of $127,000,000 dated as of October 31, 1983, given by ACBA to CPPI, and
all amendments thereto prior to the date hereof, that matures on September 30,
2005.
1.2 DOCUMENT REFERENCES. All references to documents shall include all
addenda, exhibits and schedules attached thereto or referred to therein.
1.3 OTHER DEFINITIONS. A term used and not defined herein, but that is
defined in the Bankruptcy Code, shall have the meaning set forth therein. The
words "herein," "hereof", "hereto," "hereunder," and others of similar import
refer to the Plan as a whole and not to any particular section, subsection, or
clause contained in the Plan. The word "including" shall mean "including,
without limitation." The singular shall include the plural and vice versa unless
the context otherwise requires.
ARTICLE II
ADMINISTRATIVE, PRIORITY TAX AND INTERCOMPANY CLAIMS
2.1 ADMINISTRATIVE EXPENSE CLAIMS. Except as set forth in section 2.3
below, Allowed Administrative Expense Claims (other than Claims for compensation
and reimbursement of expenses of Professionals) will be paid in full, in Cash,
on the Effective Date, or, if such Claim becomes Allowed after the Effective
Date, within five (5) days after such Claim becomes Allowed. Any fees due and
owing to the United States Trustee shall be paid in full on the Effective Date,
or as soon thereafter as practicable. All requests by Professionals for final
allowance of compensation and reimbursement of expenses accrued as of the
Confirmation Date must be filed with the Court within sixty (60) days of the
Confirmation Date and will be paid within five (5) days after such Claims become
Allowed. For the period arising from and after the Effective Date, including
with respect to ACBA through its dissolution date and the completion of its
winding-up, fees or expenses incurred by ACBA or CPPI, as the case may be, shall
be paid by Acquisition, when and to the extent such fees or expenses become due
and payable without further order of the Bankruptcy Court. The estimated amount
of unpaid fees and expenses of Professionals as of the Effective Date will be
deposited by Acquisition in one or more segregated accounts on the Confirmation
Date. Such escrowed funds shall be used to pay Allowed Administrative Expense
Claims of Professionals and any funds remaining after making all such payments
shall revest in Acquisition. Notwithstanding anything in the Plan to the
contrary, Administrative Claims of the United States Trustee for fees pursuant
to 11 U.S.C. ss. 1930(a)(6) shall be paid in accordance with the applicable
schedule for payment of such fees.
2.2 SOURCE OF FUNDING. The source of funding to satisfy Administrative
Expense Claims shall be from cash on hand as of the Effective Date or, to the
extent such Claim is not due and payable until after the Effective Date, from
cash on hand of Acquisition.
2.3 BAR DATE FOR ADMINISTRATIVE EXPENSE CLAIMS.
(a) IN GENERAL. Unless the payment date is otherwise established by an
Order of the Bankruptcy Court, and other than Administrative Expense Claims of
Professionals, requests for payment of Administrative Expense Claims must be
filed and served on Acquisition no later than thirty (30) days after the
Effective Date. Any Person that is required to file and serve a request for
payment of an Administrative Expense Claim and that fails to timely file and
serve such request, shall be forever barred, estopped and enjoined from
asserting such Claim against CPPI or ACBA, their Estates or their respective
property. The administrative bar date shall not apply to fees payable to the
United States Trustee pursuant to 11 U.S.C. ss. 1930(a)(6).
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(b) PROFESSIONALS. Professionals or other Persons requesting
compensation or reimbursement of expenses pursuant to sections 327, 328, 330,
331, 503(b) and 1103 of the Bankruptcy Code for services rendered before the
Confirmation Date shall file an application for final allowance of compensation
and reimbursement of expenses no later than sixty (60) days after the
Confirmation Date. Objections to applications of professionals or other Persons
for compensation or reimbursement of expenses must be filed no later than ninety
(90) days after the Confirmation Date.
(c) ORDINARY COURSE LIABILITIES. Holders of Administrative Expense
Claims arising in the ordinary course of the Chapter 11 Cases of CPPI and ACBA
and holders of Claims and obligations assumed by Acquisition under this Plan
shall not be required to file any request for payment of such Claims. All
Administrative Operating Expense Claims' which are not due and payable by their
terms as of the Confirmation Date shall be assumed by Acquisition, and paid in
accordance with their terms, subject to all applicable offsets and defenses
which the Debtors may hold to the payment of such Claims.
2.4 PRIORITY TAX CLAIMS. At the option of Holdings or Acquisition, each
holder of an Allowed Priority Tax Claim asserted against the CPPI and ACBA
arising in the ordinary course of their Chapter 11 Cases shall be paid the full
amount of the Allowed Priority Tax Claim, (a) in Cash, on the later of (i) the
Effective Date (or as soon thereafter as is practicable), or (ii) the first
Business Day after such Claim becomes an Allowed Claim (or as soon thereafter as
is practicable); or (b) in equal quarterly installments of principal and
interest at the applicable legal rate over a period not to exceed six (6) years
from the date of assessment of such Priority Tax Claim. The source of funding
for Allowed Priority Tax Claims against the Debtors' Estates shall be from cash
on hand of Acquisition.
2.5 INDENTURE TRUSTEE FEES AND EXPENSES. The Indenture Trustee
estimates that it will have incurred fees and unreimbursed expenses of
$____________ by the Confirmation Date, which amount shall constitute the
Trustee Fee Reserve. On the Effective Date, in satisfaction of the Indenture
Trustee's unpaid fees and expenses, the Indenture Trustee shall reserve from the
Sands Common Stock distributed for the benefit of the First Mortgage Note
claimants a sufficient number of shares to satisfy in full the aggregate amount
set forth above. The Indenture Trustee shall be required to file an application
with respect to its fees and expenses and the fees and expenses of its retained
professionals with the Bankruptcy Court or another court of competent
jurisdiction. The shares of the Sands Common Stock that are not required to
satisfy the Allowed amount of the Indenture Trustee's fees and expenses
ultimately shall be released to the holders of Class 3 Claims. The Cash
Distribution for the benefit of the holders of First Mortgage Notes Claims shall
not be used to satisfy the fees and the expenses of the Trustee but shall
instead be distributed to Holders of First Mortgage Notes in accordance with
Section 5.3 of this Plan.
2.6 INTERCOMPANY CLAIMS. Effective on the Effective Date, the
Intercompany Claims will be compromised and settled. By that compromise and
settlement, CPPI will waive and release any and all claims it may hold against
ACBA arising under the Wraparound Note, the FF&E Notes or otherwise, in exchange
for which release and waiver, ACBA will release any claims it may have against
CPPI and sell, transfer, convey and assign, without recourse, all of its right,
title and interest in and to its Assets, including, without limitation, the
Hotel Assets, to CPPI free and clear of any liens, claims, encumbrances or
interests, other than any lien classified in Class 2, which will then be dealt
with under the Plan in Class 2, or asserted by or on behalf of the holders of
the First Mortgage Notes, which lien will then be released, extinguished and
waived in accordance with the treatment afforded holders of Allowed Class 3
Claims under the Sands Plan. The Operating Leases will be terminated without
Liability.
Notwithstanding the compromise and settlement of the Claims of CPPI and
ACBA against each other as set forth in the foregoing paragraph, no Claim held
by CPPI against the Corporation will be affected by the Plan.
ARTICLE III
CLASSIFICATION OF CLAIM AND INTERESTS
3.1 CLASSIFICATION OF CLAIMS. Pursuant to section 1122 of the
Bankruptcy Code, set forth below is a designation of classes of Claims and
Interests. Administrative Expense Claims and Priority Tax Claims of the kinds
specified in Sections 507(a)(1) and 507(a)(8) of the Bankruptcy Code (set forth
in Article IV, below) have not been
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classified and are excluded from the following classes in accordance with
Section 1123(a)(1) of the Bankruptcy Code.
3.2 CLASS 1: PRIORITY CLAIMS. This class consists of all Priority
Claims that are not claims of the type referred to in Section 2.4 hereof.
3.3 CLASS 2: MISCELLANEOUS SECURED CLAIMS. This class consists of all
Miscellaneous Secured Claims.
3.4 CLASS 3: FIRST MORTGAGE NOTE CLAIMS. This class consists of all
First Mortgage Note Claims, including any Claim held by the holders of the First
Mortgage Notes against any of the Debtors under the First Mortgage Notes, the
First Mortgage Notes Indenture, the First Mortgage or the CPPI Guaranty, or any
other instrument or documents, including any Deficiency Claim.
3.5 CLASS 4: GENERAL CPPI CLAIMS. This class consists of all General
CPPI Claims (including Trade Claims against CPPI and Employee Claims)
3.6 CLASS 5: GENERAL ACBA CLAIMS. This class consists of General ACBA
Claims.
3.8 CLASS 6: CONTINGENT PAYMENT RIGHTS CLAIMS. This class consists of
all Allowed Contingent Payment Rights Claims.
3.9 CLASS 7: CONTINGENT PAYMENT CLAIMS. This class consists of all
Allowed Contingent Payment Claims.
3.10 CLASS 8: CPPI INTERESTS. This class consists of all CPPI
Interests.
3.11 CLASS 9: ACBA INTERESTS. This class consists of all ACBA
Interests.
3.12 CLASSIFICATION RULES. A Claim is in a particular Class only to the
extent that the Claim qualifies within the description of Claims of that Class,
and such Claim is in a different Class to the extent that the remainder of the
Claim qualifies within the description of the different Class. Pursuant to
section 1123(a)(4) of the Bankruptcy Code, all Allowed Claims of a particular
Class shall receive the same treatment unless the Holder of a particular Allowed
Claim agrees to a less favorable treatment for such Allowed Claim. For purposes
of the Plan, and pursuant to section 510(a) of the Bankruptcy Code, the Plan
shall give effect to subordination agreements which are enforceable under
applicable non-bankruptcy law, except to the extent the beneficiary or
beneficiaries thereof agree to less favorable treatment. The Plan shall also
give effect to the subordination rules of sections 510(b) and (c) of the
Bankruptcy Code. The inclusion of a Creditor by name in any Class is for
purposes of general description only, and includes all Persons claiming as
beneficial interest holders, assignees, heirs, devisees, transferees or
successors in interest of any kind of the Creditor named.
ARTICLE IV
IDENTIFICATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED AND NOT IMPAIRED BY THIS PLAN
4.1 CLASSES OF CLAIMS IMPAIRED BY THIS PLAN AND ENTITLED TO VOTE. First
Mortgage Note Clams (Class 3), General CPPI Claims (Class 4) and General ACBA
Claims (Class 5), are Impaired by this Plan, are receiving distributions under
the Plan and, therefore, the holders of Allowed Claims in Classes 3, 4 and 5 are
entitled to vote to accept or reject this Plan.
4.2 CLASSES OF CLAIMS AND INTERESTS IMPAIRED BY THIS PLAN AND DEEMED TO
REJECT THIS PLAN. Holders of Allowed Contingent Payment Rights Claims (Class 6),
Allowed Contingent Payment Claims (Class 7), and CPPI Interests (Class 8) and
ACBA Interests (Class 9) are impaired and do not receive or retain any property
9
under this Plan. Under section 1126(g) of the Bankruptcy Code, the holders of
such Claims and Interests are deemed to reject this Plan and the votes of such
holders will not be solicited.
4.3 CLASSES OF CLAIMS AND INTERESTS NOT IMPAIRED BY THIS PLAN AND
CONCLUSIVELY PRESUMED TO ACCEPT THIS PLAN. Priority Claims (Class 1), and
Miscellaneous Secured Claims (Class 2), are not Impaired by this Plan. Under
section 1126(f) of the Bankruptcy Code, the holders of such Claims and Interests
are conclusively presumed to accept this Plan, and the votes of such holders
will not be solicited.
ARTICLE V
PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS
5.1 PRIORITY CLAIMS (CLASS 1). Each holder of an Allowed Priority Claim
shall be paid the Allowed amount of such Claim, including all applicable
interest and other charges to which the Holder of such Allowed Priority Claim
may be entitled under applicable law or contract, to the extent permitted under
the applicable provision of section 507(a), in Cash, on the later of (a) the
Effective Date (or as soon thereafter as is practicable) or (b) the first
Business Day after such Claim becomes an Allowed Claim (or as soon thereafter as
is practicable).
5.2 MISCELLANEOUS SECURED CLAIMS (CLASS 2). With respect to an Allowed
Miscellaneous Secured Claim, the Holder of such Allowed Claim shall receive, at
the sole option of Holdings (a) the unaltered legal, equitable and contractual
rights to which the Miscellaneous Secured Claim entitles the Holder of such
Claim, (b) such other treatment that will render such Miscellaneous Secured
Claim unimpaired under section 1124 of the Bankruptcy Code, (c) the transfer and
surrender of all collateral securing such Claim to such Holder, without
representation or warranty by or recourse against either CPPI or ACBA, or (d)
will be treated in accordance with an agreement between the Proponent and the
Holder of such Claim. In the event that the treatment provided in subparagraphs
(a), (b) or (c) above results in payment to such Creditor of less than the
Allowed amount of its Claim, it shall be entitled to assert a General Unsecured
Claim against the Debtors for any deficiency.
5.3 FIRST MORTGAGEE NOTE CLAIMS (CLASS 3). Upon the Effective Date, any
Claim held or asserted by the holders of the First Mortgage Notes against CPPI
and ACBA, including any Deficiency Claim, and including any Claim evidenced by
or under the First Mortgage Notes, the Security Documents, the CPPI Guaranty,
the First Mortgage or the First Mortgage Notes Indenture or any other instrument
or document, shall be extinguished, discharged and released and any mortgage,
lien or encumbrance securing such Claim, including any interest in the funds
held in the AOB Escrow Account or otherwise received by the Indenture Trustee,
shall be discharged, waived and released in exchange for pari passu and pro rata
distribution of: (i) 5,652,000 shares of Sands Common Stock and (ii) Cash in the
estimated amount of $2,500,000 currently held by, or previously distributed to,
the Indenture Trustee for the benefit of the Holders of First Mortgage Notes.
In the event of a legal challenge to the Plan as it is currently
written, the Plan shall be deemed modified prior to the Confirmation Hearing to
incorporate either the First or the Second Alternative set forth in the
Disclosure Statement. In any event, although the adoption of either of the First
or Second Alternatives set forth in the Disclosure Statement will result in a
modification of the transactions by which distributions to the Holders of Claims
in Class 3 will be made under the Plan, it will not result in a change in either
the nature or the amount of such distributions.
5.4 GENERAL CPPI CLAIMS (CLASS 4). Upon the Effective Date, the holders
of Allowed General CPPI claims shall receive a distribution, in Cash, of an
amount equal to 75% of the holders' Allowed Claim or such greater amount as the
Bankruptcy Courtpermits.
5.5 GENERAL ACBA CLAIMS (CLASS 5). Upon the Effective Date, the holders
of Allowed General ACBA claims shall receive a distribution, in Cash, of an
amount equal to 75% of the holder's Allowed Claim or such greater amount as the
Bankruptcy Court permits.
5.6 CONTINGENT PAYMENT RIGHTS CLAIMS (CLASS 6). On the Effective Date,
all Allowed Contingent Payment Rights Claims shall be extinguished and no
distribution will be made in respect of such Allowed Contingent
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Payment Rights Claims, including any Allowed Claims arising out of or in
connection with the Debtors' rejection of the Restructuring Agreement.
5.7 CONTINGENT PAYMENT CLAIMS (CLASS 7). On the Effective Date, all
Allowed Contingent Payment Claims shall be extinguished and no distributions
will be made in respect of such Allowed Contingent Payment claims, including any
Allowed Claims arising out of or in connection with the Debtors' rejection of
the Restructuring Agreement.
5.8 CPPI INTERESTS (CLASS 8). As soon as is practicable after the
assets of CPPI have been conveyed to Acquisition as provided by the Plan, the
CPPI interests will be distributed to the Indenture Trustee and deemed
cancelled. .
5.9 ACBA INTERESTS (CLASS 9). The Holders of Allowed ACBA Interests
will not receive or retain any property under the Plan on account of such
Interests and, on the Effective Date. All such Interests shall be extinguished
and canceled.
ARTICLE VI
UNEXPIRED LEASES AND EXECUTORY CONTRACTS
6.1 GENERALLY. Effective on and as of the Effective Date, all executory
contracts and unexpired leases that exist between either CPPI or ACBA, on the
one hand, and any Person, on the other hand, including, but not limited to the
Restructuring Agreement and the Operating Leases will be rejected, except for
(i) any executory contracts and unexpired leases that have been specifically
assumed by either CPPI or ACBA, with the approval of the Bankruptcy Court on or
before the Effective Date or with respect to which a motion for assumption has
been filed on or before the Effective Date; and (ii) any executory contracts or
unexpired leases Holdings identifies on a schedule to be supplied to the
Bankruptcy Court prior to the Confirmation Hearing, which executory contracts or
unexpired leases will be assigned on the Effective Date to Acquisition..
6.2 ASSUMPTION AND ASSIGNMENT. Entry of the Confirmation Order by the
Clerk of the Bankruptcy Court shall constitute approval of all executory
contracts and unexpired leases to be assumed by either CPPI or ACBA and, as the
case may be, assigned by ACBA and CPPI to Acquisition in accordance with Section
6.1 hereof pursuant to section 365(a) and (k) of the Bankruptcy Code.
6.3 REJECTION CLAIMS. Claims created by or arising in connection with
the rejection of executory contracts and unexpired leases of the Debtors must be
filed no later 30 days after receipt of notice of the entry of a Final Order
authorizing such rejection. Any such Claims not filed within such time shall be
forever barred from assertion against CPPI, ACBA and Acquisition and their
property and estates. Each Claim resulting from such rejection shall constitute
a Class 2 Claim if secured or a Class 4 or 5 Claim, as the case may be, if
unsecured.
ARTICLE VII
DIRECTORS AND OFFICERS
7.1 BOARD OF DIRECTORS. The Board of Directors of Holdings shall
continue in place after the Effective Date. Holdings, as the owner of 100% of
Acquisition, shall appoint a Board of Directors of Acquisition in accordance
with Acquisition's certificate of incorporation and by-laws.
7.2 NO CORPORATE OR PARTNERSHIP ACTION REQUIRED. As of the Effective
Date, the adoption, execution, delivery, and assignment, and implementation of
all contracts, leases, documents, instruments, and other agreements related to
or contemplated by the Plan, and the other matters provided for, under or in
furtherance of the Plan involving action to be taken by or required of the
Debtors shall be deemed to have occurred and be effective as provided herein,
and shall be authorized and approved in all respects without further order of
the Bankruptcy Court
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or any requirement of further action by stockholders or directors or the
partners of the Debtors. All documents or instruments which must be examined and
delivered by either CPPI or ACBA under this Plan shall be deemed AUTHORIZED IF
APPROVED by either of the President, Chief Executive Officer, Executive Vice
President or any Vice President of CPPI, or any General Partner of ACBA. The
power of attorney in favor of the General Partners in the ACBA limited
partnership agreement shall be deemed to permit the General Partners to effect
the transfer of all partnership interest to Reorganized CPPI to effectuate this
Plan.
7.3 RESERVATION OF RIGHT TO MODIFY. In the event of a legal challenge
to the Plan as it is currently written, the Proponent reserves the right to
modify the Plan provisions prior to the Confirmation Hearing to incorporate
either the First or Second of the Alternatives set forth in the Disclosure
Statement. Neither the First nor the Second Alternative will change the
distributions for the benefit of Creditors.
ARTICLE VIII
IMPLEMENTATION OF THIS PLAN
8.1 VESTING OF PROPERTY. Except as otherwise expressly provided in this
Plan, on the Effective Date, title to all property of CPPI, after the transfer
to CPPI by ACBA of all of the Assets of ACBA, shall vest in Acquisition,
including all causes of action, free and clear of all Claims, liens,
encumbrances, charges and Interests arising on or before the Effective Date,
except as set forth in this Plan.
8.2 ISSUANCE OF SANDS COMMON STOCK. On the Effective Date, Holdings
will issue the Sands Common Stock and deliver it to Acquisitions to be
distributed in accordance with this Plan.
8.3 No FRACTIONAL INTERESTS. The calculation of the percentage
distribution of the Sands Common Stock to be made to holders of Class 3 Claims
may theoretically entitle the holder of such a Class 3 Claim to a fractional
interest in Sands Common Stock. For purposes of applying this section, the
holders of Class 3 Claims under or evidenced by the First Mortgage Notes shall
mean the beneficial holders thereof as of the Record Date,
The number of shares of the Sands Common Stock to be received by a
holder of a Class 3 Claim shall be rounded to the next lower whole number of
shares. The total number of shares of Sands Common Stock to be distributed to
Class 3 Claims shall be adjusted as necessary to account for the rounding
provided for in this Section. No consideration shall be provided in lieu of the
fractional shares that are rounded down and not issued. The total amount of such
fractional shares shall revert to Holdings and become unissued Sands Common
Stock.
8.4 DISSOLUTION OF ACBA. On the Effective Date, ACBA will be dissolved
and its business operations and affairs shall cease, other than those actions
which AC Boardwalk Partners, Inc., as general partner of ACBA, may need take to
wind-up the affairs of ACBA, including the preparation of final tax returns. AC
Boardwalk Partners Inc., shall also serve as tax matter partner for the final
tax returns and shall be substituted for Gerald Heetland as tax matters partner
for all prior years.
8.5 DISMISSAL OF THE CORPORATION'S BANKRUPTCY CASE. On the Effective
Date of the Plan, the Corporation's Chapter 11 Case will be dismissed.
8.6 CANCELLATION OF SECURITIES, NOTES OR OTHER INSTRUMENTS; DISCHARGE
OF INDENTURE OBLIGATIONS.
(a) As of the Effective Date, any security, note or instrument
evidencing a Claim or Interest that is impaired by this Plan, including without
limitation the First Mortgage Notes, shall be deemed canceled and terminated,
and the obligations of either CPPI or ACBA relating to, arising under, in
respect of or in connection with such securities, instruments and agreements
shall be discharged; provided, however, that except as otherwise provided
herein, notes and other evidence of Claims shall, effective upon the Effective
Date, represent the right to participate, to the extent such claims are Allowed,
in the distributions contemplated by this Plan.
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(b) The First Mortgage Notes Indenture, and the obligations of the
Indenture Trustee thereunder, shall be canceled and discharged on the Effective
Date, provided that nothing shall affect the Indenture Trustee's lien rights in
respect of its fees and expenses.
8.7 SURRENDER OF SECURITIES. Each Holder of a promissory note or other
instrument evidencing a Claim impaired hereby shall surrender the same to the
Disbursing Agent/Holdings and the Disbursing Agent/Holdings shall distribute or
shall cause to be distributed to the Holders thereof the appropriate
distribution of property hereunder. No distribution of property hereunder shall
be made to or on behalf of any such Holder unless and until such promissory note
or other instrument is received by the Disbursing Agent/Holdings, or the
unavailability of such note or other instrument is established to the
satisfaction of the Disbursing Agent/Holdings. Any such Holder that fails to
surrender or cause to be surrendered such promissory note or other instrument,
or to execute and deliver an affidavit of loss and indemnity satisfactory to
either the Disbursing Agent/Holdings, and, in the event that the Disbursing
Agent/Holdings shall also request with respect to the First Mortgage Notes,
fails to furnish a bond in form and substance (including, without limitation,
with respect to amount) reasonably satisfactory to the Disbursing Agent/Holdings
, said holder shall be deemed to have forfeited all Claims against either CPPI,
ACBA or the Corporation by such note or other instrument and shall not
participate in any distribution hereunder in regards of such note or other
instrument and all property in respect of such forfeited distribution, including
(if applicable) interest accrued thereon, shall revert to Holdings.
Notwithstanding the foregoing, all Claims shall be discharged and all Interests
shall be terminated by this Plan to the extent provided herein regardless of
whether and when any surrender, indemnity or bond required by this Section is
provided and regardless of whether the Disbursing Agent/Holdings/Acquisition
makes a distribution hereunder in the absence of compliance by any holder of a
Claim with the requirements of this Section. Holdings may waive the requirements
of this Section.
8.8 AUTHORIZATION OF CORPORATE ACTION. The entry of the Confirmation
Order shall constitute a direction and authorization to and of CPPI and ACBA and
the Reorganized CPPI to take or cause to be taken any corporate or partnership
action necessary or appropriate to consummate the provisions of this Plan prior
to and through the Effective Date without any requirement of further action by
the stockholders, partners or directors of ACBA and CPPI, and all such actions
taken or caused to be taken shall be deemed to have been authorized and approved
by the Bankruptcy Court.
ARTICLE IX
DISCHARGE AND INJUNCTION
9.1 DISCHARGE OF DEBTORS. Except as otherwise expressly provided
herein, the confirmation of this Plan shall, provided that the Effective Date
shall have occurred, discharge all Claims against and Interests in ACBA and
CPPI, to the fullest extent authorized or provided for by the Bankruptcy Code,
including, without limitation, to the extent authorized or provided for by
section 1141 thereof.
9.2 INJUNCTION. Except as otherwise expressly provided herein, the
entry of the Confirmation Order shall, provided that the Effective Date shall
have occurred, permanently enjoin all Persons that have held, currently hold or
may hold a Claim, or other debt or liability receiving treatment pursuant to
this Plan or who have held, currently hold or may hold an interest, in either of
ACBA or CPPI from taking any of the following actions in respect of such Claim,
debt or liability or such Interest: (a) commencing, conducting or continuing in
any manner, directly or indirectly, any suit, action or other proceeding of any
kind against either of ACBA or CPPI, their property or their respective
officers, directors, employees or the General Partners of ACBA; (b) enforcing,
levying, attaching, collecting or otherwise recovering in any manner or by any
means, whether directly or indirectly, any judgment, award, decree or order
against ACBA or CPPI, their property or their respective officers, directors,
employees or the General Partners of ACBA; (c) creating, perfecting or enforcing
in any manner, directly or indirectly, any lien or encumbrance of any kind
against ACBA or CPPI, their property or their respective officers, directors,
employees or the General Partners of ACBA; (d) asserting any setoff, right of
subrogation or recoupment of any kind, directly or indirectly, against any debt,
liability or obligation due to ACBA or CPPI, their property or their respective
officers, directors, employees or the General Partners of ACBA; and (e)
proceeding in any manner in any place whatsoever that does not conform to or
comply with or is inconsistent with the provisions of this Plan.
13
9.3 EXCULPATION. Neither ACBA, CPPI, nor any creditors' committee, the
General Partners of ACBA, nor any of their respective members, officers,
directors, shareholders, employees, agents, attorneys, accountants or other
advisors shall have or incur any liability to any Holder of a Claim or Interest
for any act or failure to act in connection with, or arising out of, the pursuit
of confirmation of this Plan, the consummation of this Plan or the
administration of this Plan or the property to be distributed under this Plan,
except for any act or failure to act that constitutes willful misconduct or
recklessness as determined pursuant to a Final Order, and in all respects, such
Persons (a) shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under this Plan, and shall be fully protected
from liability in acting or in refraining from action in accordance with such
advice and (b) shall be fully protected from liability with respect to any act
or failure to act that is approved or ratified by the Bankruptcy Court.
ARTICLE X
PROVISIONS COVERING DISTRIBUTIONS
10.1 TIME OF DISTRIBUTIONS UNDER THIS PLAN. Except as otherwise
provided in this Plan, payments and distributions in respect of Allowed Claims
shall be made by the Disbursing Agent, on or as promptly as practicable after
the Effective Date.
10.2 COMPLIANCE WITH TAX REQUIREMENT. With respect to CPPI in
connection with each distribution with respect to which the filing of an
information return (such as an Internal Revenue Service Form 1099 or 1042)
and/or withholding is required, Acquisition shall file such information return
with the Internal Revenue Service and provide any required statements in
connection therewith to the recipients of such distribution, and/or effect any
such withholding and deposit all moneys so withheld as required by law. With
respect to any Person from whom a tax identification number, certified tax
identification number or other tax information required by law to avoid
withholding has not been received by Acquisition, Acquisition shall withhold the
amount required and distribute the balance to such Person.
With respect to ACBA, the Plan contemplates that following the
Effective Date ACBA will be dissolved under applicable non-bankruptcy law. In
connection therewith, AC Boardwalk Partners, Inc., shall have the power and
authority to wind-up ACBA, including causing ACBA to file all necessary tax
returns.
10.3 DISTRIBUTION OF UNCLAIMED PROPERTY. Any distribution of property
under the Plan which is unclaimed after two years following the Effective Date
shall irrevocably revert to Acquisition, except for Sands Common Stock, which
shall revert to Holdings.
10.4 SATURDAY, SUNDAY OR LEGAL HOLIDAY. If any payment or act under
this Plan is required to be made or performed on a date that is not a Business
Day, then the making of such payment or the performance of such act may be
completed on the next succeeding Business Day, but shall be deemed to have been
completed as of the required date.
10.5 DISTRIBUTION RECORD DATE. The Disbursing Agent shall distribute,
or cause to be distributed, all distributions of property to be made pursuant to
this Plan to the record holders of Allowed First Mortgage Note Claims as of the
Record Date. As of the close of business on the Record Date, the transfer
ledgers with respect to the First Mortgage Notes shall be closed and Holdings,
Acquisition, the Disbursing Agent, CPPI and ACBA and the Indenture Trustee shall
have no obligation to recognize any transfer of the First Mortgage Notes
occurring thereafter.
ARTICLE XI
PROCEDURES FOR RESOLVING DISPUTED CLAIMS
11.1 OBJECTIONS TO CLAIMS. Only Claims that are Allowed shall be
entitled to distributions under the Plan. Holdingsand/or Acquisition reserves
the sole and absolute right to contest and object to any Claims filed or
asserted against ACBA or CPPI, including, without limitation, those Claims that
are not listed in the Schedules, are listed therein as disputed, contingent
and/or unliquidated in amount, or are listed therein at a lesser amount than
14
asserted by the Holder of such Claim filed or asserted against ACBA or CPPI.
Unless otherwise ordered by the Bankruptcy Court, all objections to Claims
(other than Administrative Expense Claims) shall be filed and served upon
counsel to Holdings, counsel to the Debtors, counsel to any Committee and the
Holder of the Claim objected to on or before the later of (a) 60 days after the
Effective Date and (b) 60 days after the date (if any) on which a proof of claim
is filed in respect of such Claim, or such other date determined by the
Bankruptcy Court upon motion to the Bankruptcy Court without further notice or
hearing.
11.2 PROCEDURES FOR RESOLVING DISPUTED CLAIMS. Unless otherwise ordered
by the Bankruptcy Court or agreed to by written stipulation of CPPI and ACBA,
with the consent of Holdings, and approved by the Bankruptcy Court prior to the
Effective Date , or until the objections thereto of CPPI and ACBA, are withdrawn
with the consent of Holdings, CPPI or ACBA shall litigate the merits of each
disputed claim until determined by a Final Order. From and after the Effective
Date, Holdings and/or Acquisition shall litigate the merits of each Disputed
Claim until determined by a Final Order, provided, however, that, subject to the
approval of the Bankruptcy Court, (a) prior to the Effective Date, CPPI or ACBA,
with the consent of Holdings, and (b) after the Effective Date, Acquisition or
Holdings, may compromise and settle any objection to any Claim.
11.3 TIMING OF PAYMENTS AND DISTRIBUTIONS WITH RESPECT TO DISPUTED
CLAIMS. Subject to the provisions of this Plan, payments and distributions with
respect to each Disputed Claim that becomes an Allowed Claim, and that would
have otherwise been made had the Allowed Claim been an Allowed Claim on the
Effective Date, shall be made within thirty days after the date that such
Disputed Claim becomes an Allowed Claim. Holders of Disputed Claims that become
Allowed Claims shall be bound, obligated and governed in all respects by the
provisions of this Plan.
11.4 ESTIMATION OF CLAIM. Holdings and/or Acquisition may, at any time,
request that the Bankruptcy Court, on proper notice estimate any Disputed Claim
pursuant to Section 502(c) of the Bankruptcy Code and the Bankruptcy Court will
retain jurisdiction to estimate any Claim at any time during litigation
concerning any objection to any Claim, including during the pendency of any
appeal relating to any such objection. If the Bankruptcy Court estimates any
Disputed Claim, that estimated amount will constitute either the Allowed of such
Claim or a maximum limitation on such Claim, as determined by the Bankruptcy
Court. If the estimated amount constitutes a maximum limitation on such Claim,
Holdings may elect to pursue any supplemental proceedings to object to any
ultimate Distribution to such Claim. All of the objection, estimation,
settlement and resolution procedures set forth in the Plan are cumulative and
not necessarily exclusive of one another. Claims may be estimated and
subsequently compromised, settled, withdrawn or resolved by any mechanism
approved by the Bankruptcy Court.
11.5 NO RECOURSE. Notwithstanding that the Allowed amount of any
particular Disputed Claim is reconsidered under the applicable provisions of the
Bankruptcy Court and Bankruptcy Rules or is Allowed in an amount for which there
is insufficient Cash in the relevant account to provide a recovery equal to that
received by other holders of Allowed Claims in the relevant Class, no Claim
holder shall have recourse to either ACBA, CPPI, Holdings or Acquisition, their
respective property or any of their respective professionals, or their
successors or assigns, or the holder of any other Claim, or any of their
respective property. However, nothing in the Plan shall modify any right of a
holder of a Claim under Section 502(c) of the Bankruptcy Code. THUS, THE
BANKRUPTCY COURT'S ENTRY OF AN ESTIMATION ORDER MAY LIMIT THE DISTRIBUTION TO BE
MADE ON INDIVIDUAL DISPUTED CLAIMS, REGARDLESS OF THE AMOUNT FINALLY ALLOWED ON
ACCOUNT OF SUCH DISPUTED CLAIMS.
ARTICLE XII
CONDITIONS TO CONFIRMATION AND EFFECTIVE DATE
12. 1 CONDITION PRECEDENT TO CONFIRMATION DATE.
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(a) the Bankruptcy Court has entered the Confirmation Order
containing findings, supported by evidence to be introduced at the Confirmation
Hearing, that the issuance of the Sands Common Stock and the execution of any
required indenture and security documents in respect thereto, shall have been
duly and validly authorized by all necessary corporation action; and all other
documents required under the Plan are in form and substance reasonably
satisfactory to the PROPONENT;
(b) CPPI and ACBA have been authorized to assume all leases
and executory contracts which they may seek to assume and which are to be
assigned to Acquisition; and
(c) Holdings has received the consent of any governmental
units whose consents required for confirmation.
(d) the Bankruptcy Court shall have determined that all
obligation of the CPPI and ACBA are discharged pursuant to Section 1141(d) of
the Code, except to the extent that such Claims and obligations are provided for
in the Plan or assumed by Acquisition hereunder.
12. 2 CONDITIONS TO EFFECTIVE DATE. The following conditions must occur
and be satisfied on or before the Effective Date for this Plan to be effective
on the Effective Date:
(a) CONFIRMATION ORDER. The Confirmation Order, in form and
substance acceptable to the Debtors, shall have been signed by the Bankruptcy
Court and duly entered and shall have become a Final Order.
(b) REGULATORY APPROVAL. The NJCCC shall have issued any
necessary approvals of this Plan and of the Exhibits hereto and Icahn has
obtained any necessary clearance under the Hart-Scott-Rodino Anti-Trust
Improvements Act.
(c) TIMELINESS. The Effective Date shall be not later than
April 1, 2001.
(d) WAIVER OF CONDITIONS. The PROPONENT shall have the right
to waive any of the foregoing conditions (a) to the Confirmation Date, or (b) to
the Effective Date except 12.2(b). Without limiting the foregoing, the Effective
Date may occur notwithstanding the pendency of an appeal of the Confirmation
Order or any order related thereto so long as there is no stay in effect. The
Effective Date may occur before the expiration of time to take an appeal to seek
reconsideration of the Confirmation Order without the giving of any notice to
any objecting party. In the event of any such appeal, the PROPONENT may seek the
dismissal of such appeal as moot as following the Effective Date of the Plan.
ARTICLE XIII
MODIFICATION, REVOCATION OR WITHDRAWAL OF THE PLAN
13.1 MODIFICATION OF PLAN. The Proponent may alter, amend or modify
this Plan pursuant to section 1127 of the Bankruptcy Code at any time prior to
the time that the Bankruptcy Court has signed the Confirmation Order. After such
time and prior to the substantial consummation of this Plan, the Proponent may,
so long as the treatment of holders of Claims and Interests under this Plan is
not adversely affected, institute proceedings in the Bankruptcy Court to remedy
any defect or omission or to reconcile any inconsistencies in this Plan, the
Disclosure Statement or the Confirmation Order and any other matters as may be
necessary to carry out the purposes and effects of this Plan; provided, however,
that prior notice of such proceedings shall be served in accordance with
Bankruptcy Rule 2002.
13.2 REVOCATION OR WITHDRAWAL OF PLAN.
(a) RIGHT TO REVOKE. The Proponent reserves the right to
revoke or withdraw this Plan at any time prior to the Confirmation Date.
16
(b) EFFECT OF WITHDRAWAL OR REVOCATION. If the Proponent
revokes or withdraws this Plan prior to the Confirmation Date, then this Plan
shall be deemed null and void. In such event, nothing contained herein shall be
deemed to constitute a waiver or release of any Claims by or against the Debtors
or any other Person or to prejudice in any manner the rights of the Debtors or
any Person in any further proceedings involving the Debtors.
13.3 NONCONSENSUAL CONFIRMATION. Holdings shall request that the
Bankruptcy Court confirm this Plan pursuant to section 1129(b) of the Bankruptcy
Code with respect to any non-consenting Classes on the basis that this Plan is
fair and equitable and does not discriminate unfairly with respect to such
Classes.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 BANKRUPTCY COURT TO RETAIN JURISDICTION. The business and assets
of the CPPI and ACBA shall remain subject to the jurisdiction of the Bankruptcy
Court until the Effective Date. From and after the Effective Date, the
Bankruptcy Court shall retain and have exclusive jurisdiction over the Chapter
11 Cases of ACBA and CPPI to the fullest extent permissible by law, including,
without limitation, for the purposes of determining all disputes and other
issues presented by or arising under this Plan, including, without limitation,
exclusive jurisdiction to (a) determine any and all disputes relating to Claims
and the allowance and amount thereof, (b) determine any and all disputes among
Creditors with respect to their Claims, (c) consider and allow any and all
applications for compensation for professional services rendered and
disbursements incurred in connection therewith, (d) determine any and all
applications, motions, adversary proceedings and contested or litigated matters
pending on the Effective Date and arising in or related to the Chapter 11 Cases
or this Plan, (e) remedy any defect or omission or reconcile any inconsistency
in the Confirmation order, (f) enforce the provisions of this Plan relating to
the distributions to be made hereunder, (g) issue such orders, consistent with
section 1142 of the Bankruptcy Code, as may be necessary to effectuate the
consummation and full and complete implementation of this Plan, (h) enforce and
interpret any provisions of this Plan, (i) determine such other matters as may
be set forth in the Confirmation Order or that may arise in connection with the
implementation of this Plan, and (j) determine the final amounts allowable as
compensation or reimbursement of expenses pursuant to section 503(b) of the
Bankruptcy Code.
14.2 BINDING EFFECT OF THIS PLAN. The provisions of this Plan shall be
binding upon and inure to the benefit of ACBA, CPPI, Holdings, Acquisition, any
holder of a Claim or Interest, their respective predecessors, successors,
assigns, agents, officers and directors and any other Person affected by this
Plan whether or not such Person or Holder of a Claim or Interest has accepted
the Plan.
14.3 RETIREE BENEFITS. Except as otherwise provided in the Plan, any
obligations of CPPI or ACBA to any Person for the purpose of providing or
reimbursing payments for retired employees and their spouses and dependents for
medical, surgical, or hospital care benefits, or benefits in the event of
sickness, accident, disability, or death under any plan, fund or program
(through the purchase of insurance or otherwise) maintained or established in
whole or in part by either CPPI or ACBA prior to the Petition Date, if any,
shall be continued by Acquisition.
14.4 CPPI'S AND ACBA'S CAUSES OF ACTION. Pursuant to section 1123(b)(3)
of the Bankruptcy Code, Acquisition shall retain, with the exclusive right to
enforce in its sole discretion, any and all rights and causes of action of
either of CPPI, including all rights and causes of action which may exist under
sections 510, 544 through 550 and 553 of the Bankruptcy Code or under similar
state laws, if any, and all other rights and causes of action of a trustee and
debtor-in-possession under the Bankruptcy Code (except for claims or rights
which must under tax law be enforced by the tax matters partner of ACBA),
including all other causes of action. Any Claims of ACBA will be transferred to
Acquisition under the Plan and Acquisition shall have the exclusive right to
prosecute and settle any such claims. Notwithstanding the foregoing, on the
Effective Date, CPPI and ACBA shall each release any claim they and their
respective debtor Estates may have against any of the officers and directors of
CPPI and/or against the general partners of ACBA, including any claims for
indemnity or contribution.
14.5 SETOFFS. Except as otherwise provided in the Plan with respect to
Intercompany Claims, [Holdings] may, but shall not be required to, set off
against any Claim and the distributions to be made pursuant to this Plan in
respect of such Claim, any claims of any nature whatsoever which either ACBA or
CPPI may have
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against the Holder of such Claim, but neither the failure to do so nor the
allowance of any Claim hereunder shall constitute a waiver or release of any
such Claim either ACBA or CPPI may have against such Holder.
14.6 CAPTIONS. Article and Section captions used in this Plan are for
convenience only and will not affect the construction of this Plan.
14.7 METHOD OF NOTICE. All notices required to be given under this
Plan, if any, shall be in writing and shall be sent by first class mail, postage
prepaid, or by overnight courier:
If to the CPPI to:
The Claridge Hotel and Casino Corporation
Indiana Avenue and the Boardwalk
Atlantic City, New Jersey 08401
Attn.: Frank A. Bellis. Jr.
with copies to:
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, New York 10 166
Attn.: Dennis J. Drebsky, Esq.
If to ACBA to:
c/o AC Boardwalk Partners, Inc.
2880 West Meade Avenue
Suite 204
Las Vegas, NV 89102
Attn.: Anthony Atchley, President
with copies to:
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
Attn.: William S. Katchen, Esq.
If to Holdings:
Sands Hotel and Casino
Indiana Avenue and Brighton Park
Atlantic City, New Jersey 08401
Attn: Frederick H. Kraus, Esq.
with copies to:
Gibbons, Del Deo, Dolan,
Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102
Attn: James N. Lawlor, Esq.
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Any of the above may, from time to time, change its address for future notices
and other communications hereunder by filing a notice of the change of address
with the Bankruptcy Court. Any and all notices given under this Plan shall be
effective when received.
14.8 DISSOLUTION OF ANY COMMITTEE. On the Effective Date, any Committee
shall cease to exist and its members and employees or agents (including, without
limitation, attorneys, investment bankers, financial advisors, accountants and
other Professionals) shall be released and discharged from all further
authority, duties, responsibilities and obligations relating to and arising from
and in connection with the Chapter 11 Cases.
14.9 GOVERNING LAW. Except to the extent that the Bankruptcy Code, the
Bankruptcy Rules or other federal laws are applicable, the laws of the State of
New Jersey shall govern the construction and implementation of, this Plan and
all rights and obligations arising under this Plan.
14.10 TIME. Unless otherwise specified herein, in computing any period
of time prescribed or allowed by this Plan, the day of the act or event from
which the designated period begins to run shall not be included. The last day of
the period so computed shall be included, unless it is not a Business Day, in
which event the period runs until the end of the next succeeding day which is a
Business Day.
14.11 SECTION 1146 EXEMPTION. Pursuant to section 1146(c) of the
Bankruptcy Code, the issuance. transfer or exchange of any security under this
Plan, or the execution, delivery or recording of an instrument of transfer
pursuant to, in implementation of, or as contemplated by this Plan, or the
revesting, transfer or sale of any real property of the Debtors pursuant to, in
implementation of or as contemplated by this Plan shall not be taxed under any
state or local law imposing a stamp tax, transfer tax or similar tax or fee.
Consistent with the foregoing, each recorder of deeds or similar official for
any county, city or governmental unit in which any instrument hereunder is to be
recorded shall, pursuant to the Confirmation Order, be ordered and directed to
accept such instrument, without requiring the payment of any documentary stamp
tax, deed stamps, stamp tax, transfer tax, intangible tax or similar tax.
14.12 SEVERABILITY. In the event that any provision of this Plan is
determined to be unenforceable, such determination shall not limit or affect the
enforceability and operative effect of any other provisions of this Plan. To the
extent that any provision of this Plan would, by its inclusion in this Plan,
prevent or preclude the Bankruptcy Court from entering the Confirmation Order,
the Bankruptcy Court, on the request of the Debtor, may modify or amend such
provision, in whole or in part as necessary to cure any defect or remove any
impediment to the confirmation of this Plan existing by reason of such
provision; PROVIDED, HOWEVER, that such modification shall not be effected
except in compliance with Section 14.01 of this Plan.
14.13 SUBORDINATION RIGHTS. The classification and treatment of all
Claims and Interests under the Plan shall be in full settlement and satisfaction
of any contractual, legal and equitable subordination rights, whether arising
under general principles of equitable subordination, section 510(c) of the
Bankruptcy Code or otherwise, that a Holder of a Claim or Interest may have
against other Claim Holders with respect to any distribution made pursuant to
the Plan
14.14 SATISFACTION OF ACTIONS TAKEN. Entry of the Confirmation Order
shall ratify all transactions effected by CPPI and ACBA from and including the
Filing Date through the Confirmation Date. After entry of the Confirmation
Order, all Creditors and Interest Holders shall be enjoined and restrained from
commencing or continuing any action or proceeding arising out of or related to
the consummation of the transactions contemplated by the Plan.
14.15 REGISTRATION AND LISTING OF SANDS COMMON STOCK. The Sands Common
Stock shall be issued under this Plan in reliance on the exemption from
registration provided in Section 1145 of the Bankruptcy Code, subject to the
approval of the NJCCC. Holdings shall use its good faith best efforts to
complete the listing of Sands Common Stock on the American Stock Exchange or
such other national exchange as may be appropriate in the discretion of
Holdings.
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14.16 NO MULTIPLE SATISFACTIONS. Any Person that holds a Claim against
more than one of CPPI and ACBA that arises from the same right to payment or
equitable remedy that gives rise to a right to payment, such as a Holder of a
Claim for a loan given to either CPPI or ACBA, which loan is guaranteed by the
other, shall only receive a distribution as if the Person was the Holder of a
Claim against one of ACBA or CPPI. Such distribution shall be deemed to be in
full satisfaction of the Person's Claims against both CPPI and ACBA.
14.17 PLAN CONTROLS. In the event and to the extent that any provision
of this Plan is inconsistent with the provisions of the Disclosure Statement, or
any other instrument or agreement contemplated to be executed pursuant to this
Plan, the provisions of this Plan shall control and take precedence.
Dated: Atlantic City, New Jersey
November 28, 2000
Respectfully submitted,
GB HOLDINGS, INC.
By:
Alfred J. Luciani
President
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