IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Case Nos. 00-3897 through 00-3927
(EIK)
)
GC COMPANIES, INC., et al., ) Chapter 11
)
) Jointly Administered
Debtors. )
FIRST AMENDED JOINT PLAN OF REORGANIZATION OF DEBTORS AND OFFICIAL COMMITTEE
OF UNSECURED CREDITORS FOR
GC COMPANIES, INC., AND ITS JOINTLY ADMINISTERED SUBSIDIARIES
PACHULSKI, STANG, ZIEHL, YOUNG & JONES P.C. LLP GOODWIN PROCTER
Marc A. Beilinson Daniel M. Glosband P.C.
Jeremy V. Richards Colleen A. Murphy
10100 Santa Monica Boulevard Exchange Place
Suite 1100 Boston, Massachusetts 02109
Los Angeles, California 90067 (617) 570-1000
(310) 277-6910 (617) 523-1231 (facsimile)
(310) 201-0760 (facsimile) and
Counsel for Official Committee of Unsecured Creditors
PEPPER HAMILTON LLP
David M. Fournier
1201 Market Street
Suite 1600
Wilmington, Delaware 19801
(302) 777-6500
(302) 656-8865 (facsimile)
Dated:_________, 2002 Counsel for Debtors and
Debtors in Possession
TABLE OF CONTENTS
PAGE
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Article 1 DEFINITIONS AND RULES OF CONSTRUCTION .................... 1
Article 2 ADMINISTRATIVE AND TAX CLAIMS ............................ 25
Article 3 CLASSIFICATION OF CLAIMS AND INTERESTS ................... 28
Article 4 IDENTIFICATION OF IMPAIRED CLAIMS AND INTERESTS .......... 29
Article 5 TREATMENT OF CLAIMS AND INTERESTS......................... 30
Article 6 ACCEPTANCE OR REJECTION OF PLAN .......................... 44
Article 7 MEANS FOR IMPLEMENTATION OF THE PLAN ..................... 44
Article 8 EXECUTORY CONTRACTS AND UNEXPIRED LEASES ................. 54
Article 9 DISTRIBUTIONS ............................................ 62
Article 10 LITIGATION AND OBJECTIONS TO CLAIMS ...................... 69
Article 11 EFFECTS OF PLAN CONFIRMATION ............................. 72
Article 12 RELEASES, INJUNCTIONS AND LIMITATION OF LIABILITY ........ 73
Article 13 CONDITIONS TO confirmation and EFFECTIVENESS ............. 78
Article 14 RETENTION OF JURISDICTION ................................ 80
Article 15 MODIFICATION OR WITHDRAWAL OF PLAN ....................... 82
Article 16 MISCELLANEOUS ............................................ 83
i
FIRST AMENDED JOINT PLAN OF REORGANIZATION OF DEBTORS
AND OFFICIAL COMMITTEE OF UNSECURED CREDITORS
FOR GC COMPANIES, INC., AND ITS JOINTLY ADMINISTERED SUBSIDIARIES
GC Companies, Inc. ("GCX") and its jointly administered subsidiaries,1 as
debtors and debtors-in-possession in the above-captioned Chapter 11 cases
("Debtors") and the Official Committee of Creditors Holding Unsecured Claims
("Committee") hereby propose the following First Amended Joint Plan of
Reorganization ("Plan") for the Debtors pursuant to Chapter 11 of Title 11 of
the United States Code, 11 U.S.C. Sections 101 et seq., as amended.
The Disclosure Statement that accompanies this Plan discusses the Debtors'
history, businesses, properties, and results of operations and contains a
summary and discussion of this Plan. Holders of Claims and Interests and parties
to executory contracts and unexpired leases are encouraged to read the
Disclosure Statement. No solicitation materials, other than the Disclosure
Statement and related materials transmitted therewith and approved for
solicitation purposes by the Bankruptcy Court, have been authorized for use in
soliciting acceptances or rejections of this Plan.
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
DEFINED TERMS.
As used herein, the following terms shall have the respective meanings
specified below. All capitalized terms used herein and not otherwise defined
have the meanings assigned to them
1 The Debtors are the following entities: GC Companies, Inc.; GCC
Investments, Inc.; General Cinema Theatres, Inc.; G.C. Theatre Corp. of
California; General Cinema Corp. of Clifton; General Cinema Theatre of
Columbia, Inc.; General Cinema Theatres of Delaware, Inc.; General Cinema
Corp. of Greenwood; General Cinema Theatres of Illinois, Inc.; General
Cinema Corp. of Indiana; General Cinema Corp. of Landmark; General Cinema
Corp. of Maryland, Inc.; General Cinema Corp. of Massachusetts; General
Cinema Corp. of Mayfair; General Cinema Corp. of Mazza; General Cinema
Corp. of Minnesota, Inc.; General Cinema Theatres of New Jersey, Inc.;
General Cinema of New Mexico, Inc.; General Cinema Corp. of New York,
Inc.; General Cinema Corp. of North Carolina; General Cinema Corp. of
Northwestern; General Cinema Theatres of Ohio, Inc.; General Cinema Corp.
of Owings Mills; General Cinema Corp. of Parkway Pointe; General Cinema
Corp. of Pennsylvania; General Cinema Corp. of Plymouth Meeting; General
Cinema Corp. of South Carolina; General Cinema Corp. of Texas; General
Cinema Corp. of Virginia; General Cinema Corp. of Washington and General
Cinema Theatre of Yorktown, Inc.
in the Bankruptcy Code and in the Bankruptcy Rules.
1.1 "Adequate Protection Payments" means all payments made by any of the
Debtors in Possession as "adequate protection" to the holder of any lien or
other interest in property of any of the Debtors or the Estates, including,
without limitation, all payments made by any of the Debtors in Possession to any
Holder of a Claim in any of Classes 3 through 7 inclusive from and after the
Petition Date.
1.2 "Administrative Claim" means any Claim for any cost or expense of
administration of the Cases allowable under section 330, 331, 503(b), or
507(a)(1) of the Bankruptcy Code, including, without limitation, any actual and
necessary postpetition expenses of preserving the estates of the Debtors, any
actual and necessary postpetition expenses of operating the business of the
Debtors in Possession, all compensation or reimbursement of expenses to the
extent allowed by the Bankruptcy Court under section 330, 331, or 503 of the
Bankruptcy Code, any fees or charges assessed against the estates of the Debtors
under section 1930 of title 28 of the United States Code and any and all Allowed
Reclamation Claims. Notwithstanding the foregoing, Administrative Claims shall
not include any Intercompany Claims.
1.3 "Affiliate" means, as to any Person, any other Person that directly or
indirectly owns or controls, is owned or controlled by, or is under common
ownership or control with, such Person. The term "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as applied to any Person, means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or other
ownership interest, by contract or otherwise.
1.4 "Administrative Claims Bar Date" means the last date or dates fixed by
the Plan or the Bankruptcy Court for filing proofs or requests for payment of
certain Administrative Claims pursuant to Section 2.1.2(b) of the Plan, Rule
3003(c)(3) of the Bankruptcy Rules, or any order of the Bankruptcy Court.
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1.5 "Allowed" when used to describe a Claim or Claims means such Claim or
Claims, to the extent that it or they are an "Allowed Claim" or "Allowed
Claims."
1.6 "Allowed Amount" shall mean:
(i) with respect to any Administrative Claim (i) if the Claim
is based upon a Fee Application, the amount of such Fee Application that has
been approved by a Final Order of the Bankruptcy Court; (ii) if the Claim is
based upon any indebtedness or obligation incurred in the ordinary course of
business of the Debtors and is not otherwise subject to an Administrative Claim
Bar Date, the amount of such Claim that has been agreed to by the Debtors and
such creditor, failing which, the amount thereof as fixed by a Final Order of
the Bankruptcy Court; or (iii) if the Holder of such Claim was required to file
and has filed proof thereof with the Bankruptcy Court prior to an Administrative
Claim Bar Date, (1) the amount stated in such proof if no objection to such
proof of claim is interposed within the applicable period of time fixed by the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court, or (2) the amount
thereof as fixed by Final Order of the Bankruptcy Court if an objection to such
proof was interposed within the applicable period of time fixed by the
Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court. The Allowed
Amount of any Administrative Claim which is subject to an Administrative Claims
Bar Date and not filed by the applicable Administrative Claims Bar Date shall be
zero, and no distribution shall be made on account of any such Administrative
Claim;
(ii) with respect to any Tax Claim, Priority Claim, Secured
Bank Claim, Secured Claim or Unsecured Claim, (i) if the Holder of such Claim
did not file proof thereof with the Bankruptcy Court on or before the Claims Bar
Date, the amount of such Claim as listed in the Debtors' Schedules as neither
disputed, contingent or unliquidated; or (ii) if the Holder of such Claim has
filed proof thereof with the Bankruptcy Court on or before the Claims Bar Date,
(1) the amount stated in such proof if no objection to such proof of claim was
interposed within the applicable period of
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time fixed by the Bankruptcy Code, the Bankruptcy Rules, the Plan or the
Bankruptcy Court, or (2) the amount thereof as fixed by Final Order of the
Bankruptcy Court if an objection to such proof was interposed within the
applicable period of time fixed by the Bankruptcy Code, the Bankruptcy Rules,
the Plan or the Bankruptcy Court. The Allowed Amount of any Tax Claim, Priority
Claim, Bank Claim, Secured Claim or Unsecured Claim which is not filed by the
applicable Claims Bar Date and is not listed on the Debtors' Schedules or is
listed as disputed, unliquidated, contingent or unknown shall be zero, and no
distribution shall be made on account of any such Tax Claim, Priority Claim,
Bank Claim, Secured Claim or Unsecured Claim;
(iii) with respect to any Deficiency Claim, the amount thereof
as fixed by Final Order of the Bankruptcy Court. The Allowed Amount of any
Deficiency Claim which is not filed by the Claims Bar Date shall be zero, and no
distribution shall be made on account of any such Deficiency Claim;
(iv) with respect to any Interest, (i) the amount provided by
or established in the records of the Debtors at the Confirmation Date, provided,
however, that a timely filed proof of Interest shall supersede any listing of
such Interest on the records of the Debtors; or (ii) the amount stated in a
proof of Interest Filed prior to the Confirmation Date if no objection to such
Interest was filed prior to the Confirmation Date or such later date as the
Bankruptcy Court allows; or (iii) the amount of such Interest as fixed by a
Final Order of the Bankruptcy Court.
1.7 "Allowed Claim" shall mean, except as otherwise provided in this Plan
(including with respect to those Classes for which the amount of the Allowed
Claims is specified by this Plan), a Claim to the extent (and only to the
extent) of the Allowed Amount of such Claim. Unless otherwise specified herein
or by order of the Bankruptcy Court, "Allowed Claim" shall not include interest
(including but not limited to unamortized original issue discount as of the
Petition Date), fees (including but not limited to late charges and attorneys
fees), or penalties accruing after the Petition Date on such Claim.
1.8 "Allowed _____ Claim" or "Allowed Class ____ Claim" means a Claim of
the type specified or in the Class specified that is also an Allowed Claim
(i.e., an Allowed Secured
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Claim is a Secured Claim that is also an Allowed Claim, and an Allowed Class 6
Claim is a Claim classified in Class 6 that is an Allowed Claim).
1.9 "Allowed Interest" means any Interest to the extent, and only to the
extent, of the Allowed Amount of such Interest.
1.10 "AMCE" means AMC Entertainment Inc., a Delaware corporation
1.11 "AMCE Acquisition Agreement" means such definitive acquisition
agreement as may be executed by and between AMCE, AMC, CDI or any other
Affiliate of AMCE, and Debtors, incorporating the material terms set forth in
the AMCE Letter of Intent, as it may be amended, and which shall be filed by the
Proponents no later than ten (10) days prior to the Confirmation Hearing.
1.12 "AMCE Class 6 Distribution Date" means: (a) in the event the
Committee elects to establish the Unsecured Stock Trust, the latest of: (i)
seventy-five (75) days after the Effective Date; or (ii) the OUST Disputed Fee
Resolution Date; or (b) in the event the Committee does not elect to establish
the Unsecured Stock Trust, the latest of: (i) ninety (90) days after the
Effective Date; or (ii) the OUST Disputed Fee Resolution Date.
1.13 "AMCE Election Deadline" means, in the event the Bank Support
Agreement Condition is not satisfied or waived by AMCE, the last day for AMCE to
elect in writing between Option A and Option B, which date shall be ten (10)
days prior to the Confirmation Hearing.
1.14 "AMCE Letter of Intent" means the Letter of Intent executed by AMCE
and GCX and dated as of December 6, 2001, as it may be amended.
1.15 "AMCE Commitment Date" shall mean the date by which AMCE, pursuant to
the terms of the AMCE Acquisition Agreement, must notify the Debtors that, with
the exception of the conditions which are not subject to the AMCE Commitment
Date, all conditions specified in the AMCE Acquisition Agreement have either
been satisfied or waived.
1.16 "AMCE Stock" means shares of AMCE common stock.
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1.17 "AMC" means American Multi-Cinema, Inc., a Missouri corporation
that is a subsidiary of AMCE.
1.18 "Amended and Restated Certificate of Incorporation or Charter" means,
with respect to each Reorganized Debtor, the amended and restated certificate or
articles of incorporation or charter (or document of similar effect with respect
to any Debtor that is not a corporation) for such Reorganized Debtor, which
shall be substantially in the forms of the examples set forth in the Plan
Documentary Supplement.
1.19 "Amended and Restated Bylaws" means, with respect to each Reorganized
Debtor, the amended and restated bylaws for such Reorganized Debtor that is a
corporation, which shall be substantially in the forms of the examples set forth
in the Plan Documentary Supplement.
1.20 "Assigned Leases" means any and all real property leases that were
assigned by any of the Debtors to any party other than one of the other Debtors
prior to the Petition Date.
1.21 "Avoidance Rights of Action" means all Rights of Action arising under
Sections 544-550 of the Bankruptcy Code.
1.22 "B of A" means Bank of America, N.A.
1.23 "Ballot Date" means the date set by the Bankruptcy Court as the last
date for timely submission by a Creditor or Interest Holder of a ballot
accepting or rejecting the Plan.
1.24 "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended, as set forth in Title 11 of the United States Code, 11 U.S.C. Sections
101 et seq., as applicable to the Chapter 11 cases.
1.25 "Bankruptcy Court" means the United States Bankruptcy Court for the
District of Delaware, having jurisdiction over the Cases and, to the extent of
any withdrawal of the reference made pursuant to section 157 of title 28 of the
United States Code, the United States District Court for the District of
Delaware; or, in the event such courts cease to exercise jurisdiction over the
Cases, such court or unit thereof that exercises jurisdiction over the Cases in
lieu thereof.
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1.26 "Bankruptcy Rules" means, collectively, as now in effect or hereafter
amended and as applicable to the Cases, (i) the Federal Rules of Bankruptcy
Procedure, and (ii) the Local Bankruptcy Rules and General Orders applicable to
cases pending before the Bankruptcy Court.
1.27 "Banks" means the Domestic Banks and the SA Lenders.
1.28 "Bank Support Agreement" means a Support Agreement similar, or
substantially similar to the Support Agreement entered into by the Creditor
Parties as of December 6, 2001, pursuant to which the Banks shall agree to the
Consensual Class 4 Treatment and the satisfaction of the JV Loan Purchase
Condition, in form and substance reasonably satisfactory to AMCE.
1.29 "Bank Support Agreement Condition" means the execution and delivery
by the Banks to AMCE of a duly executed Bank Support Agreement no later than one
(1) day prior to the LOI Hearing.
1.30 "Business Day" means any day, other than a Saturday, a Sunday or a
"legal holiday," as defined in Bankruptcy Rule 9006(a).
1.31 "Cases" means the Chapter 11 cases commenced by the Debtors on the
Petition Date and pending before the Bankruptcy Court as Case Nos. 00-3897
through 00-3927 (EIK).
1.32 "Cash" means currency of the United States of America and cash
equivalents, including, but not limited to, bank deposits, immediately available
or cleared checks, drafts, wire transfers and other similar forms of payment.
1.33 "CDI" means Centertainment Development, Inc., a Delaware
corporation that is a subsidiary of AMCE.
1.34 "Claim" shall have the broadest possible meaning under section 101(5)
of the Bankruptcy Code, and shall include (a) any right to 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) any right to an equitable remedy
for breach of performance if such breach gives rise to a right of payment from
any of the Debtors, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured.
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1.35 "Claims Bar Date" means, for any Claim other than an Administrative
Claim, May 1, 2001, or such other deadline for filing such Claim as was
established under the "Order Establishing Bar Date For Filing Proofs of Claim
Against GC Companies, Inc. et al. and Approving Form and Manner of Notice,"
dated February 14, 2001 or is established under the Plan.
1.36 "Claims Objection Deadline" means the later of (i) the one hundred
twentieth (120th) day after the Effective Date, (ii) with respect to a specific
Claim, the one-hundred twentieth (120th) day after proof of such Claim is filed,
or (iii) such greater period of limitation as may be fixed or extended by the
Bankruptcy Court or by agreement between a Debtor and the Holder of the Claim.
1.37 "Class" means each group of Claims or Interests classified in Article
3 of the Plan pursuant to sections 1122 and 1123 of the Bankruptcy Code.
1.38 "Class 6 Distribution Agent" means the Person selected by the
Committee to hold and distribute Cash and such other property as may be
distributed pursuant to the Plan to Holders of Allowed Class 6 Claims.
1.39 "Class 6 Distribution Date" means the First Class 6 Distribution Date
and every one hundred and twenty (120) days thereafter until all Disputed
Deduction Claims, Disputed Class 6 Claims and Disputed Class 8 Claims have been
resolved and all distributions have been made on account of all Allowed Class 6
Claims and all Allowed Class 8 Claims, or more frequently in the discretion of
the Post-Confirmation Committee.
1.40 "Class 6 Distribution Expenses" shall mean: (i) the fees and expenses
incurred by the Post-Confirmation Committee, the Class 6 Distribution Agent, any
Unsecured Stock Trustee and the professionals, consultants (including present or
former employees of, or counsel to the Debtors) and sub-agents employed or
retained by any or all of them in connection with: (a) objecting to, litigating
and/or settling Disputed Class 6 Claims, Disputed Convenience Claims and
Disputed Deduction Claims; (b) administering and managing the Class 6 Recovery
(and any proceeds thereof); and (c) performing any other acts or services
reasonably necessary to
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implementing the provisions of the Plan with respect to the Holders of Class 6
and Class 7 Claims; and (ii) any fees due and payable to the Office of the
United States Trustee pursuant to Section 1930(a)(6) of Title 28 of the United
States Code with respect to the Cases that remain open from and after the
Effective Date, subject to the provisions for closing the Cases set forth in
Section 7.13 of the Plan.
1.41 "Class 6 Recovery" means the Base Class 6 Recovery and any
Conditional Class 6 Recovery.
1.42 "Committee" means the Official Committee of Unsecured Creditors of
the Debtors appointed in the Cases pursuant to Section 1102 of the Bankruptcy
Code.
1.43 "Confirmation Date" means the date on which the clerk of the
Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy
Court, but in no event later than March 20, 2002 or April 20, 2002 if AMCE is
entitled to, and does in fact exercise its option to extend said deadline
pursuant to Section 3(d) of the AMCE Letter of Intent, unless a later date is
agreed to by AMCE and the Proponents.
1.44 "Confirmation Hearing" means the hearing on Confirmation of this
Plan.
1.45 "Confirmation Hearing Date" means the date or dates established by
the Bankruptcy Court for the hearing(s) on confirmation of the Plan pursuant to
Section 1129 of the Bankruptcy Code.
1.46 "Confirmation Order" means the order entered by the Bankruptcy Court
confirming the Plan in accordance with the provisions of Chapter 11 of the
Bankruptcy Code, which order must be in form and substance reasonably
satisfactory to AMCE.
1.47 "Convenience Claim" means any Unsecured Claim (other than of the kind
set forth in subparagraphs (a) through (f) of Section 3.6 of the Plan) that is:
(i) in an Allowed Amount of $500 or less; or (ii) in an Allowed Amount of
greater than $500, but which is reduced to an Allowed Amount of $500 by election
of the Holder thereof pursuant to such Holder's Ballot. In no event shall any
Convenience Claim exceed $500 for the purposes of allowance, treatment or
distribution under the Plan. A Holder may elect to reduce to Five Hundred
Dollars
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($500.00) and be deemed to hold a Convenience Claim only as to the aggregate
amount of all such Holders' Claims that would otherwise have been classified in
Class 6 absent such election, and no Claim of any such Holder that would have
been classified in Class 6 absent such election shall be classified in Class 6
if the Holder makes such election.
1.48 "Convenience Claim Amount" means the aggregate Allowed Amount of
all Allowed Convenience Claims.
1.49 "Corporate Restructuring Program" means the program set forth in the
Plan Documentary Supplement and made a part of this Plan pursuant to which
certain of the Debtors shall (I) establish new subsidiaries or other entities,
(II) acquire, merge with, or dissolve various other Debtors, or (III) transfer
some or all of the assets of certain Debtors to newly-created entities or to one
or more of the other surviving Debtors, as further described in Section 7.6.
1.50 "Creditor" means any Person who is the Holder of a Claim against any
Debtor that arose or accrued or is deemed to have arisen or accrued or to have
matured, or otherwise become due, owing, and payable on or before the Petition
Date, including, without limitation, Claims of the kind specified in sections
502(g), 502(h) or 502(i) of the Bankruptcy Code.
1.51 "Creditor Parties" means the Committee, Harcourt and GECC.
1.52 "Cure Claims" means the cost of curing all outstanding defaults under
contracts to be assumed or assumed and assigned by the Reorganized Debtors, and
compensating the non-Debtor party to such contract for any actual pecuniary loss
resulting from such default, and any other amounts required to be paid to the
non-Debtor party under section 365(b) of the Bankruptcy Code.
1.53 "Debtor(s)" means, individually or collectively, GC Companies,
Inc. and each of its subsidiaries that is a debtor and debtor-in-possession
under Chapter 11 of the Bankruptcy Code.
1.54 "Debtors in Possession" mean the Debtors when each is acting in the
capacity of representative of the Estates in the Cases.
1.55 "Debtor Subsidiary" means any or all of the Debtors except GCX.
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1.56 "Deduction Claims" means the aggregate sum of the Administrative
Claims (exclusive of operating expenses incurred or accrued and paid in the
ordinary course of business for goods and services, sales taxes and federal and
state taxes relating to ordinary income), plus retention, severance and bonus
payments (including bonuses paid in the normal course) (without duplication),
plus the Priority Tax Claims, plus the Class 1 Claims, plus the Class 2 Claims,
plus the Cure Claims, plus the Adequate Protection Payments, less the GECC
Excess Payments and any adequate protection payments made to Heller subsequent
to August 1, 2001 and applied to the reduction of the pre-petition principal
amount of Heller's Class 3 Claim, in all instances whether payments on behalf of
such Deduction Claims were made from August 1, 2001 through the Effective Date
or whether such Deduction Claims are outstanding on the Effective Date;
provided, however, that the component of Deduction Claims that relates to
severance and retention payments, including amounts paid under the Amended and
Restated Termination and Change of Control Agreements approved by the Bankruptcy
Court's Order dated March 16, 2001 but not including any bonuses paid in the
normal course, shall be deemed to equal $5 million regardless of the actual
amounts that are paid through the Effective Date or outstanding on the Effective
Date; bonuses paid in the normal course shall constitute a Deduction Claim based
on the actual amount of such bonuses paid. Notwithstanding the foregoing, the
Deduction Claims shall exclude: (a) any and all fees and expenses incurred by
New Investments LLC, in connection with the Plan or otherwise; and (b) the
premium cost incurred by AMCE with respect to a directors' and officers'
insurance policy pursuant to Section 3(k) of the AMCE Letter of Intent.
1.57 "Deduction Claims Limit" shall mean Twenty Million Dollars ($20
million) unless AMCE elects to extend the deadline for the date of entry of the
Confirmation Order from March 31, 2002 to a date on or before April 30, 2002, in
which event the Deduction Claims Limit shall be Twenty Million Five Hundred
Thousand Dollars ($20.5 million).
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1.58 "Deficiency Claim" shall mean any Unsecured Claim representing the
amount, if any, by which the Allowed Amount of a Class 2 Secured Claim exceeds
the value of the property owned or held by the Debtors which secures payment of
the Claim.
1.59 "DIP Facility Agreement" means the postpetition credit agreement,
dated as of October 13, 2000 between certain of the Debtors, the Banks and GECC
and as amended, providing debtor-in-possession financing in the maximum
aggregate principal amount of $45 million.
1.60 "DIP Facility Claims" means Claims arising under the DIP Facility
Agreement.
1.61 "DIP Facility Order" means that certain Final Order (a) Approving
Debtors' Motion for Order Authorizing Debtors to Incur Post-Petition Secured
Indebtedness on a Final Basis and (b) Granting Security Interests of
Superpriority Claims and Adequate Protection, entered by the Bankruptcy Court on
or about November 8, 2000.
1.62 "Disclosure Statement" means the Disclosure Statement, dated as of
January ___, 2002, as amended, modified or supplemented from time to time,
submitted pursuant to Section 1126(b) of the Bankruptcy Code in connection with
the solicitation of acceptances of the Plan.
1.63 "Disputed Administrative Claim" means any Administrative Claim
that is not an Allowed Administrative Claim.
1.64 "Disputed Claim" means all or any part of a Claim as to which any one
of the following applies: (i) no proof of claim has been filed with respect to
such Claim, and either (a) the Claim is not listed in the Schedules, or (b) the
Claim is listed in the Schedules as unliquidated, disputed, contingent, unknown
or in a zero amount, (ii) the Claim is the subject of a timely objection or
request for estimation in accordance with the Bankruptcy Code, the Bankruptcy
Rules, any applicable order of the Bankruptcy Court, or the Plan which is Filed
on or before the Claims Objection Deadline, which objection or request for
estimation has not been withdrawn or determined by a Final Order, or (iii) the
Claim is otherwise treated as a "Disputed Claim" pursuant to this Plan.
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In addition, prior to the earlier of (i) the Claims Objection
Deadline, (ii) such date as the Bankruptcy Court allows the Claim pursuant to a
Final Order, or (iii) in the case of Class 6 Claims only, the date upon which
the Post-Confirmation Committee determines, in its discretion, not to object to
a Class 6 proof of claim or reaches an agreement with the Holder of a Class 6
Claim as to the Allowed Amount of such Claim and so notifies the Class 6
Distribution Agent, any Claim evidenced by a proof of claim in Classes 1, 2 or 6
or any Tax Claim, shall be deemed a Disputed Claim for purposes of calculating
and making any distributions under this Plan if: (a) no Claim corresponding to
the proof of claim is listed in the Schedules, (b) the Claim corresponding to
the proof of claim is listed in the Schedules as disputed, contingent,
unliquidated, unknown, or in a zero amount, (c) the amount of the Claim as
specified in the proof of claim exceeds the amount of any corresponding Claim
listed in the Schedules as not disputed, not contingent, and liquidated, but
only to such extent, or (d) the priority or classification of the Claim as
specified in the proof of claim differs from the priority of any corresponding
Claim listed in the Schedules.
1.65 "Disputed ___ Claim" or "Disputed Class ___ Claim" means a Claim of
the type specified or in the Class specified that is also a Disputed Claim
(i.e., a Disputed Tax Claim is a Tax Claim that is also a Disputed Claim, and a
Disputed Class 6 Claim is a Claim classified in Class 6 that is also a Disputed
Claim).
1.66 "Distribution Agent" means the Person selected pursuant to the Plan
to hold and distribute Cash and such other property as may be distributed
pursuant to the Plan other than to Holders of Claims in Class 6 (which Person
(a) may be Reorganized GCX; (b) will be identified in the Plan Documentary
Supplement; and (c) will not be an insider of the Debtors).
1.67 "Domestic Banks" means Fleet and the Bank of Novia Scotia.
1.68 "Domestic Bank Claims" means all Claims against any Debtor, secured
or unsecured, held by the Domestic Banks or any predecessors, successors or
assignees in any capacity, whether directly or as assignee, subrogee or
otherwise, including, without limitation, any Claims arising under or relating
to the Domestic Bank Documents.
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1.69 "Domestic Bank Documents" means the following documents, as amended,
restated, supplemented, or otherwise modified from time to time prior to the
Effective Date: (I) the Revolving Credit Agreement dated as of January 26, 1999
by and among GCX and the Domestic Banks; (II) all promissory notes evidencing
the indebtedness incurred under the Revolving Credit Agreement described in
clause (i) above; (III) all agreements, documents, and instruments pursuant to
which any interest in collateral was granted or purported to be granted,
created, evidenced, or perfected in connection with such Revolving Credit
Agreement, including, without limitation, all security agreements, pledge
agreements, assignments, financing statements, the Intercreditor Agreement and
similar documents; (IV) all guarantees of any GCX Subsidiary with respect to the
Revolving Credit Agreement and ancillary agreements as to which any holder of
any of the obligations evidenced by any of the foregoing is a party or a
beneficiary, all other agreements as to which any holder of any of the
obligations evidenced by any of the foregoing is a party or a beneficiary and
all other agreements, guarantees, instruments, documents, and certificates
delivered in connection with any of the foregoing; and (V) Claim numbers 1457,
1943, 1453, 1454, 1456, 1458, 1459, 1460, 1461, 1462, 1942, 1934, 1935, 1937,
1938, 1455, 1939, 1940, 1941, 1463, 1440, 1441, 1442, 1443, 1444, 1445, 1446,
1447, 1448, 1449 and 1450 Filed in the Cases.
1.70 "Effective Date" means a date to be agreed upon by AMCE and the
Proponents as soon as practicable after the conditions set forth in Section
13.2(b) of the Plan have been satisfied or waived as provided in the Plan, but
in no event later than April 1, 2002 provided, however, that if AMCE is not in
breach of its obligations under the AMCE Letter of Intent, and the AMCE
Acquisition Agreement, AMCE may extend the deadline for the Effective Date
through and including May 1, 2002 by giving written notice of such election to
GCX, the Committee, GECC and Harcourt on or before April 1, 2002.
1.71 "Estate" means each estate created pursuant to Section 541(a) of the
Bankruptcy Code upon the commencement of each Case.
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1.72 "Existing GCX Common Stock" means the shares of common stock of GCX,
outstanding immediately prior to the Effective Date.
1.73 "Fee Applications" shall mean applications of Professional Persons
under sections 330, 331 or 503 of the Bankruptcy Code for allowance of
compensation and reimbursement of expenses in the Cases.
1.74 "Fee Claim" shall mean a Claim under sections 330 or 503 of the
Bankruptcy Code for allowance of compensation and reimbursement of expenses in
the Cases.
1.75 "Filed" shall mean delivered to, received by and entered upon the
legal docket by the Clerk of the Bankruptcy Court.
1.76 "Final Order" means a judgment, order, ruling or other decree issued
and entered by the Bankruptcy Court or by any state or other federal court or
other tribunal as to which no appeal, petition for certiorari, or other
proceedings for reargument or rehearing shall then be pending or as to which any
right to appeal, petition for certiorari, reargue, or rehear shall have been
waived in writing in form and substance satisfactory to the Proponents and AMCE
or, in the event that an appeal, writ of certiorari, or reargument or rehearing
thereof has been sought, such order or judgment of the Bankruptcy Court or other
applicable court shall have been affirmed by the highest court to which such
order or judgment was appealed, or certiorari, reargument, or rehearing has been
denied, and the time to take any further appeal, petition for certiorari, or
move for reargument or rehearing shall have expired.
1.77 "First Class 6 Distribution Date" means no later then ten (10)
business days after the AMCE Class 6 Distribution Date.
1.78 "Fleet" means Fleet National Bank, N.A.
1.79 "GCT" means General Cinema Theatres, Inc., a Maine corporation.
1.80 "GCX" means GC Companies, Inc., a Delaware corporation.
1.81 "GCX Guaranties" means GCX's several guaranties relating to the
JV Loans .
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1.82 "GCX Guaranty Claims" means any and all claims which arise, under,
refer, relate or pertain in any way to the GCX Guaranties and include, without
limitation, all Claims asserted in Claim Nos. 1304 and 1427 Filed in the Cases.
1.83 "GCX JV Loan Portion" means fifty percent (50%) of each of the JV
Loans, representing the entirety of that portion of all of the JV Claims that
have been guaranteed by GCX.
1.84 "GCX Subsidiary" means every Debtor and every other corporation which
is a direct or indirect subsidiary of GCX or any other Debtor.
1.85 "GCX Unsecured Claim" means an Unsecured Claim against GCX that is
not also a Claim against any of the Debtor Subsidiaries including, without
limitation the GCX Guaranty Claims and shall only be separately classified as
Class 8 Claims rather than Class 6 Claims in the event the Bank Support
Agreement Condition is neither satisfied nor waived by AMCE.
1.86 "GECC" means General Electric Capital Corporation.
1.87 "GECC Documents" means the following documents, as same may have been
amended, restated, supplemented or otherwise modified from time to time: (I)
that certain Master Lease Agreement by and between GCT and GECC dated November
21, 1996 (the "GECC Master Lease"), all lease schedules, documents, instruments
and agreements executed or delivered as required or contemplated thereby, any
participations or assignments of interests to any member of the GECC Group, any
other agreements entered into pursuant thereto or in connection therewith or
which incorporate any or all of the terms thereof, and any other related
agreements or other documents including, without limitation, any agreement
between any Debtor and any member of the GECC Group; and (II) Claims numbers
1703, 1684, 1735, 1727, 1707, 1706, 1705, 1704, 1690, 1689, 1724, 1725, 1732,
1733, 2106, 1773, 1774, 1686, 1688, 1736 , 1681, 1685, 1687, 1734, 1710, 1680
and 1683 Filed in the Cases.
1.88 "GECC Excess Payments" means one half of all Adequate Protection
Payments made to the GECC Group in excess of $9 million in the aggregate.
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1.89 "GECC Group" means GECC and its participants under the GECC
Agreements, including, without limitation, Bank Leumi Leasing Corp., Imperial
Bank, The Fifth Third Leasing Company, Fleet Capital Corporation, ReliaStar Life
Insurance Company (successor by merger to ReliaStar), Northern Life Insurance
Company and ReliaStar Life Insurance Company of New York, f/k/a ReliaStar
Bankers Security Life Insurance Company.
1.90 "GECC Group Claims" means all Claims against any Debtor, secured or
unsecured, held by any member of the GECC Group or any predecessor, successor or
assignee in any capacity, whether directly or as assignee, subrogee or
otherwise, including, without limitation, any Claim arising under or relating to
any of the GECC Documents.
1.91 "Harcourt" means Harcourt General, Inc.
1.92 "Harcourt Claims" means all Claims against any Debtor, secured or
unsecured, held by Harcourt or any predecessor, successor, assignee, agent or
Affiliate (including, without limitation GCLRA LLC) in any capacity, whether in
its own name, in the name of a third party landlord, as subrogee, as assignee or
otherwise including, without limitation, any Claim under or relating to the
Harcourt Documents and any claim arising out of or relating to Harcourt's
liability, whether as guarantor or otherwise, under or with respect to any lease
under which any Debtor is or was a lessee or to which any Debtor is or was
otherwise a party.
1.93 "Harcourt Documents" means (i) that certain Amended and Restated
Reimbursement and Security Agreement, dated as of January 26, 1999 by and
between GCX and Harcourt, as same may have been amended, supplemented, restated
or otherwise modified from time to time; and (ii) the Harcourt Proofs of Claim.
1.94 "Harcourt Leases" means all leases (other than the Erie Commons,
Summit Park and Midway Mall leases, which shall be deemed not to be Harcourt
Leases): (a) under which Harcourt was the original tenant, is a guarantor or is
otherwise liable for rent upon any default in payment thereof; (b) that had not
yet been rejected as of December 6, 2001; and (c) that had not been assigned as
of December 6, 2001 by any of the Debtors to parties other than Affiliates of
the Debtors, whether before or after the Petition Date. Without limiting the
foregoing, all of the
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Reserved Leases shall be deemed to be Harcourt Leases and none of the Identified
Leases shall be deemed to be a Harcourt Lease. The Harcourt Leases are
identified in Exhibit 1.94 to the Plan.
1.95 "Harcourt Proofs of Claim" shall mean any and all proofs of claim
filed by Harcourt (whether timely or untimely or whether filed in its own name,
in the name of a third party landlord, as subrogee, as assignee or otherwise)
against any or all of the Debtors including, without limitation, those proofs of
claim identified in Exhibit 1.95 to the Plan.
1.96 "Heller" means Heller EMX, Inc.
1.97 "Heller Claims" means all Claims against any Debtor, secured or
unsecured, held by Heller or any predecessor, successor or assignee in any
capacity, whether directly or as assignee, subrogee or otherwise, including,
without limitation, any Claim arising under or relating to the Heller Documents.
1.98 "Heller Documents" means (i) that certain Lease and Security
Agreement dated as of October 28, 1999 by and between Heller and GCX, as same
may have been amended, supplemented, restated or otherwise modified from time to
time; and (ii) Claim numbers 1434, 1435, 1436 and 1437 Filed in the Cases.
1.99 "Holder" means the beneficial owner of any Claim or Interest, which,
in the case of an investment company, shall be the investment company and not
its shareholders, and which in the case of an insurance company, shall be the
insurance company and not its insureds.
1.100 "Identified Claims" shall mean any and all Claims which refer,
relate or pertain in any way to the Identified Leases.
1.101 "Identified Leases" means those real property leases identified in
Exhibit 1.101.
1.102 "Intercompany Claim" means any Claim held or asserted against any
Debtor by GCX or any GCX Subsidiary.
1.103 "Intercreditor Agreement" means that certain Intercreditor Agreement
dated as of January 26, 1999 by and between Bank Boston, N.A. (n/k/a Fleet
National Bank, N.A.) as
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administrative agent for the Domestic Banks, Harcourt and GCX, as same may have
been amended, supplemented, restated, or otherwise modified from time to time.
1.104 "Interest" means an equity security or interest of or in any Debtor
within the meaning of Section 101(16) of the Bankruptcy Code, including, without
limitation, any equity interest in any of the Debtors, whether in the form of
common or preferred stock, stock options, warrants, partnership interests,
membership interests, or any other equity security or interest, and includes,
without limitation, any equity interest based on Existing GCX Common Stock or on
any common stock of any other Debtor.
1.105 "Interim Operating Agreement" means that certain Interim Operating
Agreement dated as of December 6, 2001, as may be amended, entered into by and
between AMCE and GCX.
1.106 "JV Loan" means any loan made to Hoyts General Cinemas South America
or its subsidiaries that is guaranteed, in whole or in part, by GCX.
1.107 "Lien" has the meaning given in Section 101(37) of the Bankruptcy
Code.
1.108 "LOI Hearing" means the date first set for the Bankruptcy Court to
consider approval of certain binding agreements set forth in the AMCE Letter of
Intent.
1.109 "New AMCE Notes" means newly issued notes added to AMCE's existing
issue of 9.5% Senior Subordinated Notes due 2011 or any other issue of AMCE
Senior Subordinated Notes with materially similar terms, as described in Exhibit
1.109 to the Plan.
1.110 "New AMCE Notes Exchange Option" means the option of Holders of
certain Allowed Claims to elect to receive, in lieu of New AMCE Notes, Cash in
an amount equal to 87.5% of the principal face amount of the New AMCE Notes to
which they would otherwise be entitled.
1.111 "New AMCE Securities" means, collectively, the New AMCE Stock and
the New AMCE Notes to be distributed under Sections 5.4 through 5.6 of the Plan.
1.112 "New AMCE Stock" means newly issued shares of AMCE common stock,
valued at the Plan Value.
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1.113 "New GCX Common Stock" means newly issued shares of common stock of
Reorganized GCX, all of which shall be issued by Reorganized GCX to AMCE or its
designee on the Effective Date pursuant to the Plan.
1.114 "Newly Rejected Lease" means any lease rejected effective on or
after December 6, 2001 other than the Bay Plaza Expansion, Erie Commons, Summit
Park and Midway Mall leases as identified in Exhibit 1.114 to the Plan.
1.115 "Option A" means the option of AMCE to require GCX to reject the GCX
Guaranties (to the extent, if any, that such guaranty is an executory contract),
and have any GCC Guaranty Claims asserted by the SA Lenders be treated as a
Class 6 Claim.
1.116 "Option B" means the option of AMCE to establish Class 8 under the
Plan and to have Allowed Class 8 Claims treated as set forth in Section 5.8 of
the Plan.
1.117 "OUST" means the Office of the United States Trustee.
1.118 "OUST Disputed Fee Resolution Date" means the earlier of (a) the
date upon which the Committee or the Post-Confirmation Committee reaches an
agreement with the OUST regarding the total amount of quarterly fees owing to
the OUST through the Effective Date; (b) the date upon which the OUST agrees
upon the amount of a reserve reasonably necessary to assure the OUST of payment
in full of any and all disputed OUST quarterly fees for the period through and
including the Effective Date; or (c) the date of entry of a Final Order
establishing an adequate reserve for payment of all disputed fees owed, or
allegedly owed to the OUST as quarterly fees for the period through and
including the Effective Date.
1.119 "Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority, governmental unit, Committee
or other entity of whatever nature.
1.120 "Petition Date" means the date on which each Debtor filed its
petition for relief under Chapter 11 of the Bankruptcy Code, i.e. October 11,
2000.
1.121 "Plan" means the Joint Plan of Reorganization as set forth herein,
together with the Schedules and Exhibits thereto and the Plan Documents, as the
same may be amended or
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modified by the Proponents with the consent of AMCE from time to time pursuant
to the Plan, the Bankruptcy Code or the Bankruptcy Rules.
1.122 "Plan Documentary Supplement" means a supplement to this Plan,
containing various documents relating to the implementation of the Plan, to be
Filed with the Bankruptcy Court no later than ten (10) business days prior to
the commencement of the Confirmation Hearing, as said supplement may be amended
from time to time at any time prior to the Effective Date by agreement of the
Proponents and AMCE.
1.123 "Plan Documents" means the Amended and Restated Certificates of
Incorporation or Charters, the Amended and Restated By-Laws, the AMCE
Acquisition Agreement, the Unsecured Stock Trust Agreement and the Stock
Disposition Agreement (if the Unsecured Stock Trust is elected by the
Committee), the Harcourt Indemnification Agreement, the New Investments LLC
Agreement and any other documents required by the Plan or determined by the
Proponents and AMCE to be necessary or advisable to implement the Plan. The Plan
Documents shall be in form and content acceptable to AMCE and the Proponents.
Final or near-final versions of the Plan Documents shall be filed with the clerk
of the Bankruptcy Court as part of the Plan Documentary Supplement as early as
practicable (but in no event later than ten (10) business days prior to the
commencement of the Confirmation Hearing, or on such other date as the
Bankruptcy Court may establish).
1.124 "Plan Rate" means the interest rate available on ninety (90) day
United States Treasuries on the Effective Date, but in no event greater than
7.0% per annum.
1.125 "Plan Value," when referencing New AMCE Stock, means the product of
multiplying the applicable number of shares of New AMCE Stock by the per share
value of the New AMCE Stock, valued at the average closing price per share for
the 15 days prior to the Effective Date, subject to a minimum price per share of
$10. The number of shares of New AMCE Stock needed to achieve a specified Plan
Value is calculated by dividing that Plan Value by the per share value of the
New AMCE Stock as so determined.
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1.126 "Post-Confirmation Committee" means the Committee after the
Effective Date, as reconstituted and with the rights and duties set forth in the
Plan.
1.127 "Priority Claim" means any Claim, other than an Administrative Claim
or a Tax Claim, to the extent entitled to priority under Section 507(a) of the
Bankruptcy Code.
1.128 "Pro Rata" means proportionately, so that with respect to any
distribution in respect of any Allowed Claim, the ratio of (a)(i) the amount of
property distributed on account of such Allowed Claim to (ii) the amount of such
Allowed Claim, is the same as the ratio of (b)(i) the amount of property
distributed on account of all Allowed Claims of the Class or Classes sharing in
such distribution to (ii) the amount of all Allowed Claims in such Class or
Classes.
1.129 "Professional" means a Person or Entity (a) employed by the Debtors
in Possession or the Committee pursuant to a Final Order in accordance with
Sections 327 and 1103 of the Bankruptcy Code and to be compensated for services
rendered prior to the Effective Date, pursuant to Sections 327, 328, 329, 330
and 331 of the Bankruptcy Code, or (b) for which compensation and reimbursement
has been allowed by the Bankruptcy Court pursuant to Section 503(b) of the
Bankruptcy Code.
1.130 "Professional Fees" means all Allowed Claims for compensation and
for reimbursement of expenses under Sections 328, 330 and/or 503(b) of the
Bankruptcy Code.
1.131 "Proponents" shall mean those parties in interest proposing the
Plan, i.e., the Debtors and the Committee.
1.132 "Reclamation Claim" means any Claim asserted by any Person pursuant
to Section 546(c) of the Bankruptcy Code and applicable state law, relating to
the reclamation of goods that were provided by such Person to the Debtors.
1.133 "Record Date" means the Confirmation Date or such other date as is
designated in the Confirmation Order.
1.134 "Reorganized GCT" means GCT on and after the Effective Date.
1.135 "Reorganized GCX" means GCX on and after the Effective Date.
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1.136 "Reorganized Debtors" means, collectively, all of the Debtors or any
successors thereto by merger, consolidation, acquisition, or otherwise on and
after the Effective Date.
1.137 "Reserved Leases" means the Springfield, Hollywood Galaxy and
Centennial Lakes theater leases under which one of the Debtors is lessee.
1.138 "Rights of Action" means any and all claims, demands, rights,
defenses, actions, causes of action, suits, contracts, agreements, obligations,
accounts, defenses, offsets, powers and privileges of any kind or character
whatsoever, known or unknown, suspected or unsuspected, whether arising prior
to, on or after the Petition Date, in contract or in tort, at law or in equity,
or under any other theory of law, held by any of the Debtors against any person
or entity, including but not limited to: (i) rights of setoff, counterclaim, or
recoupment, and claims on contracts or for breaches of duties imposed by law;
(ii) the right to object to Claims; (iii) such claims and defenses as fraud,
mistake, duress and usury and (iv) all Avoidance Rights Of Action.
1.139 "Schedules" means the schedules of assets and liabilities and list
of equity security holders Filed by the Debtors, as required by section 521(1)
of the Bankruptcy Code, Bankruptcy Rules 1007(a)(3) and (b)(1), and Official
Bankruptcy Form No. 6, as amended from time to time.
1.140 "Secured Claim" means any Claim, including interest, fees, costs,
and charges to the extent allowable pursuant to Bankruptcy Code section 506(b)
and the Plan, that is secured by a valid and unavoidable Lien on property in
which the Debtors have, or any of them or any Estate has, an interest or that is
subject to recoupment or setoff under Section 553 of the Bankruptcy Code, to the
extent of the value of such Holder's interest in the Debtors', any Debtor's or
any Estate's interest in the property, determined pursuant to Section 506(a) of
the Bankruptcy Code.
1.141 "State" means any state of the United States of America and shall
include the District of Columbia and Puerto Rico.
1.142 "Stock Disposition Agreement" means that certain Stock Disposition
Agreement to be entered into by the Unsecured Stock Trustee and AMCE providing
for limitations on and
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benefits to the Unsecured Stock Trustee in connection with the trustee's sale of
the New AMCE Stock issued with respect to Class 6 Claims, in the event the
Committee elects to establish an Unsecured Stock Trust.
1.143 "Tax" means any tax, charge, fee, levy, impost or other assessment
by any federal, state, local or foreign taxing authority, including, without
limitation, income, excise, property, sales, transfer, employment, payroll,
franchise, profits, license, use, ad valorem, estimated, severance, stamp,
occupation and withholding tax. "Tax" shall include any interest or additions
attributable to, or imposed on or with respect to such assessments.
1.144 "Tax Claim" means any Claim for any Tax to the extent that it is
entitled to priority in payment under Section 507(a)(8) of the Bankruptcy Code.
1.145 "Unclaimed Property" means all Cash, New AMCE Stock or New AMCE
Notes deemed to be "Unclaimed Property" pursuant to Sections 9.3, 9.4.1 and 9.7
of the Plan.
1.146 "Unsecured Claim" means a Claim against any Debtor that is not (a) a
Secured Claim, (b) an Administrative Claim, (c) a Tax Claim or (d) a Priority
Claim.
1.147 "Unsecured Stock Trust" means a trust to be established for the
benefit of the Holders of Allowed Class 6 Claims, to be funded with the Class 6
Recovery and to be governed by the Unsecured Stock Trust Agreement.
1.148 "Voting Tabulator" means the entity designated by the Debtors and
retained pursuant to Final Order of the Bankruptcy Court to receive Creditors'
ballots for voting on the Plan.
Other Definitions.
Other defined terms used in the Plan (in addition to those set forth
above), are defined in the section of the Plan in which such terms are first
used as listed below:
"34 Act" is defined in Section 5.10.1 of the Plan.
"34 Act Registration" is defined in Section 5.10.1 of the Plan.
"40 Act" is defined in Section 5.10.1 of the Plan.
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"Adviser Act Registration" is defined in Section 5.10.1 of the Plan.
"Allowed Designated Lease Claims" is defined in Section 5.6.2 of the Plan.
"Allowed Identified Lease Claims" is defined in Section 5.6.3 of the Plan.
"Actual JV Loan Purchase Price" is defined in Section 5.6.2 of the Plan.
"Assumed Contract or Lease" is defined in Section 5.6.2 of the Plan.
"Assumed Contracts and Leases" is defined in Section 8.1 of the Plan.
"Bank Leumi" is defined in Section 5.5.1 of the Plan.
"Base Class 6 Recovery" is defined in Section 5.6.2 of the Plan.
"BDC Election" is defined in Section 5.10.1 of the Plan.
"Class 4 Alternative Treatment" is defined in Section 5.4.1 of the Plan.
"Class 6 Expense Reserve" is defined in Section 9.2.2 of the Plan
"Class 10 Participation Conditions" is defined in Section 5.10.5 of the
Plan.
"Class 10 Percentage" is defined in Section 5.10.2 of the Plan.
"Conditional Class 6 Recovery" is defined in Section 5.6.3 of the Plan.
"Consensual Class 4 Treatment" is defined in Section 5.4.1 of the Plan.
"Cure Claim Amount" is defined in Section 8.3. of the Plan.
"Distribution Conditions" is defined in Section 5.10.1 of the Plan.
"D&O Policy" is defined in Section 8.8 of the Plan.
"Equity Financing" is defined in Section 5.10.3 of the Plan.
"Fifth Third" is defined in Section 5.5.1 of the Plan.
"GCCI Inc." is defined in Section 5.10.1 of the Plan.
"GCCI LLC" is defined in Section 5.10.1 of the Plan.
"GECC Master Lease" is defined in Section 1.87 of the Plan.
"Greeley Claim" is defined in Section 5.9 of the Plan.
"Harcourt Indemnification Agreement" is defined in Section 5.9 of the
Plan.
"Harcourt Lease Amendment" is defined in Section 5.9.5 of the Plan and
shall be in the form attached to the Plan as Exhibit 5.9
"Indemnity Obligations" is defined in Section 8.8 of the Plan.
"Instrument and Security or Instruments and Securities" is defined in
Section 9.3.1 of
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Plan.
"LLC Interests" is defined Section 5.10.2 of the Plan
"New Boards" is defined in Section 7.10 of the Plan.
"New Investments LLC" is defined in Section 5.10.1 of the Plan.
"New Investments LLC Agreement" is defined in Section 5.10.4 of the Plan.
"1940 Act" is defined in Section 5.10.1 of the Plan.
"Objection Deadline" is defined in Section 10.2 of the Plan.
"Option Period" is defined in Section 5.10.4 of the Plan.
"Preferred LLC Interests" is defined in Section 5.10.4 of the Plan.
"Preferred LLC Priority Amount" is defined in Section 5.10.4 of the Plan
"Pro Rata Share" is defined in Section 5.10.1(i) of the Plan.
"Releasees" is defined in Section 12.1.1 of the Plan.
"Required Cure Payment" is defined in Section 8.3. of the Plan.
"Schedule of Assumed Contracts" is defined in Section 8.6.1 of the Plan.
"Tail Coverage" is defined in Section 8.8 of the Plan.
"Tax Administrative Claims" is defined in Section 2.1.2 (ii) (b) of the
Plan.
"Top-Up AMCE Stock" is defined in Section 5.6.3 of the Plan
"Unclaimed Property" is defined in Section 9.7 of the Plan.
"Unsecured Stock Trust Agreement" is defined in Section 7.5 of the Plan.
"Unsecured Stock Trustee" is defined in Section 7.5.2 of the Plan.
RULES OF CONSTRUCTION.
For purposes of the Plan, (i) whenever from the context it is
appropriate, each term, whether stated in the singular or the plural, shall
include both the singular and the plural; (ii) any reference in the Plan to a
contract, instrument, release, indenture, agreement, or other document being in
a particular form or on particular terms and conditions means that such document
shall be substantially and materially in such form or substantially and
materially on such terms and conditions; (iii) any reference in the Plan to a
document, schedule, or exhibit to
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the Plan, Plan Documentary Supplement, or Disclosure Statement Filed or to be
Filed means such document, schedule, or exhibit, as it may have been or may be
amended, modified, or supplemented; (iv) unless otherwise specified, all
references in the Plan to articles, sections, subsections, clauses, paragraphs,
schedules, and exhibits are references to articles, sections, subsections,
clauses, paragraphs, schedules, and exhibits of or to the Plan; (v) 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, clause, or
paragraph contained in the Plan; (vi) a term used herein that is not defined
herein shall have the meaning ascribed to that term, if any, in the Bankruptcy
Code or Bankruptcy Rules; and (vii) the rules of construction set forth in
section 102 of the Bankruptcy Code shall apply to the extent such rules are not
inconsistent with the express terms of the Plan or any other provision in this
Section I.B.
PLAN DOCUMENTARY SUPPLEMENT.
Forms or summaries of certain documents referred to herein will be
contained in a separate Plan Documentary Supplement, which the Debtors shall
file with the Bankruptcy Court and amend from time to time with AMCE's consent,
prior to the Effective Date. A copy of the Plan Documentary Supplement may be
obtained from Goodwin Proctor LLP, counsel for the Debtors, at the address set
forth in Section 16.5 of the Plan, upon written request.
EXHIBITS.
All exhibits to the Plan and all documents contained in the Plan
Documentary Supplement are incorporated into and are a part of the Plan as if
set forth in full herein.
ARTICLE 2
ADMINISTRATIVE AND TAX CLAIMS
2.1 Administrative Claims.
2.1.1 DIP Facility Claims. On the Effective Date, or as soon
thereafter as practicable, each Holder of a DIP Facility Claim shall receive
payment in full in Cash of the unpaid portion of such DIP Facility Claim. Any
dispute as to any DIP Facility Claim shall be
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resolved by the Bankruptcy Court in accordance with the Bankruptcy Code and the
Bankruptcy Rules, after notice and a hearing.
2.1.2 Other Administrative Claims.
(i) Payment Generally.
Except to the extent that the Holder of an Allowed Administrative
Claim agrees to a different treatment, and subject to the bar dates for
Administrative Claims set forth in the following Sections, the Distribution
Agent shall pay each Allowed Administrative Claim in full, in Cash, on the later
of (i) the Effective Date, (ii) within ten (10) Business Days after the date
such Administrative Claim becomes an Allowed Administrative Claim, or (iii) the
date such Allowed Administrative Claim becomes due according to its terms.
Notwithstanding the foregoing, any Allowed Administrative Claim representing
obligations incurred in the ordinary course of postpetition business by the
Debtors in Possession (including without limitation postpetition trade
obligations and routine postpetition payroll obligations, but excluding any
postpetition tax obligations) shall be paid in full or performed by the
Reorganized Debtors in the ordinary course of business, in accordance with the
terms of the particular obligation.
(ii) Administrative Claims Bar Date:
a. General Administrative Claims Bar Date:
All applications for final compensation of Professionals for
services rendered and for reimbursement of expenses incurred on or before the
Effective Date and all other requests for payment of Administrative Claims
incurred before the Effective Date under sections 507(a)(1) or 507(b) of the
Bankruptcy Code (except only for (i) postpetition, ordinary course trade
obligations and routine postpetition payroll obligations incurred in the
ordinary course of the Debtors' postpetition business, for which no bar date
shall apply, and (ii) postpetition tax obligations, for which the bar date
described in the following Section shall apply) shall be filed with the
Bankruptcy Court and served upon the Reorganized Debtors, the Post-Confirmation
Committee and AMCE no later than sixty (60) days after the Effective Date (the
"General Administrative Claims Bar Date"), unless such date is extended by the
Bankruptcy Court after notice to the
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Reorganized Debtors. Any such request for payment of an Administrative Claim
that is subject to the General Administrative Claims Bar Date and that is not
filed and served on or before the General Administrative Claims Bar Date shall
be forever barred; any party that seeks payment of Administrative Claims that
(i) is required to file a request for payment of such Administrative Claims and
(ii) does not file such a request by the deadline established herein shall be
forever barred from asserting such Administrative Claims against the Debtors,
the Reorganized Debtors, their estates, or any of their property.
b. Administrative Tax Claims Bar Date:
All requests for payment of Administrative Claims by a governmental
unit for taxes (and for interest and/or penalties related to such taxes) for any
tax year or period, all or any portion of which occurs or falls within the
period from and including the Petition Date through and including the Effective
Date ("Tax Administrative Claims") and for which no bar date has otherwise
previously been established, must be filed and served on the Reorganized
Debtors, the Post-Confirmation Committee and AMCE on or before the later of (i)
sixty (60) days following the Effective Date; and (ii) 120 days following the
filing of the tax return for such taxes for such tax year or period with the
applicable governmental unit. Any Holder of any Tax Administrative Claims that
is required to file a request for payment of such taxes and does not file and
properly serve such a request by the applicable bar date shall be forever barred
from asserting any such Tax Administrative Claims against the Debtors,
Reorganized Debtors, their estates, or their property.
(iii) Post-Effective Date Professional Fees and
Expenses:
Any professional fees or reimbursement of expenses incurred by the
Reorganized Debtors subsequent to the Effective Date may be paid by the
Reorganized Debtors without application to the Bankruptcy Court; provided,
however, that the Bankruptcy Court shall retain jurisdiction to resolve any
disputes regarding payment for professional services relating to the
implementation of the Plan or the administration of the Chapter 11 Cases.
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2.2 Tax Claims. Each Person holding a Tax Claim that is an Allowed Claim
shall receive, at the option of Reorganized GCX: (a) payment in Cash in full on
the later of the Effective Date or the date such Tax Claim becomes an Allowed
Claim, or as soon as practicable thereafter; or (b) equal Cash payments
calculated at the Plan Rate, on each Distribution Date, payable in arrears, over
a period not exceeding six (6) years after the date of assessment of such Tax
Claim; or (c) such payments as may be agreed to by such Person and Reorganized
GCX or determined by the Bankruptcy Court. For purposes of distribution under
the Plan, Tax Claims shall include sales taxes related to the GECC Master Lease.
Any Tax Claim (including all interest, penalties and other charges) that is an
Allowed Tax Claim for which any member of the GECC Group is liable, the payment
of which is demanded from such member by the applicable taxing authority, shall
be payable upon the later of the date of such demand or the Effective Date.
Article 3
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 Class 1 - Priority Claims. Class 1 consists of all Priority Claims,
excluding Tax Claims.
3.2 Class 2 - Other Secured Claims. Class 2 consists of all Secured Claims
other than Secured Claims held by the Banks, the GECC Group, Heller or Harcourt.
Each Class 2 Claim which is an Allowed Claim shall be deemed to be a separate
subclass for voting and confirmation purposes.
3.3 Class 3 - Claims of Heller. Class 3 consists of all Heller
Claims.
3.4 Class 4 - Claims of the Domestic Banks. Class 4 consists of all
Domestic Bank Claims.
3.5 Class 5 - Claims of the GECC Group. Class 5 consists of all GECC
Group Claims.
3.6 Class 6 - Unsecured Claims. Class 6 consists of all Unsecured Claims
other than: (a) the GCX Guaranty Claims (unless the Bank Support Agreement
Condition is not satisfied or waived by AMCE and AMCE elects Option A, in which
event the GCX Guaranty Claims will be
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treated as Class 6 Claims); (b) Domestic Bank Claims; (c) GECC Group Claims; (d)
Heller Claims; (e) Harcourt Claims; (f) Intercompany Claims; and (g) Convenience
Claims. Notwithstanding the foregoing, in the event that Bank Support Agreement
Condition is not satisfied or waived by AMCE and AMCE elects Option B, Class 6
Claims shall exclude all GCX Unsecured Claims.
3.7 Class 7 - Convenience Claims. Class 7 consists of all
Convenience Claims.
3.8 Class 8 - GCX Unsecured Claims. Class 8 consists of all GCX Unsecured
Claims and shall only be operative in the event that the Bank Support Agreement
Condition is neither satisfied nor waived by AMCE and AMCE elects Option B.
3.9 Class 9 - Claims of Harcourt. Class 9 consists of all Harcourt
Claims.
3.10 Class 10 - Interests in GCX. Class 10 consists of all Interests
represented by Existing GCX Common Stock.
3.11 Class 11 - Common Stock Options. Class 11 consists of all
outstanding, unexercised options for the acquisition of Existing GCX Common
Stock and all Interests based on such options.
3.12 Class 12 - Intercompany Claims. Class 12 consists of all
Intercompany Claims.
3.13 Class 13 - Interests in Each Debtor (other than GCX). Class 13
consists of all Interests in each of the Debtors other than GCX.
ARTICLE 4
IDENTIFICATION OF IMPAIRED CLAIMS AND INTERESTS
4.1 Classes of Claims and Interests that are not Impaired. Classes 1, 2,
3, 12 and 13 are not impaired under the Plan.
4.2 Impaired Classes of Claims and Interests. All other Classes of
Claims and Interests are impaired under the Plan.
ARTICLE 5
TREATMENT OF CLAIMS AND INTERESTS
The following treatment shall be in full satisfaction and discharge of all
of the Claims
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against and Interests in the Debtors:
5.1 Class 1 - Priority Claims. Each Person holding an Allowed Claim in
Class 1 shall be paid (a) the full amount of such Allowed Claim in Cash on the
later of (i) the Effective Date, (ii) the date such Claim becomes an Allowed
Claim or (iii) the date such Claim becomes payable in accordance with the terms
governing such Claim, or (b) upon such other less favorable terms as may be
agreed to by such Person and Reorganized GCX or Reorganized GCT.
5.2 Class 2 - Secured Claims. In respect of each Allowed Class 2 Secured
Claim, the Reorganized Debtor which is liable thereon shall, at the option of
AMCE, either: (a) reinstate such Claim by curing all outstanding defaults, with
all legal, equitable and contractual rights remaining unaltered, except as
permitted by Bankruptcy Code Section 1124(2); (b) pay such Claim in Cash in full
as soon as practicable after the later of the Effective Date or the date such
Claim becomes an Allowed Claim, or such other date to which such Person and
Reorganized GCX agree; (c) distribute to the Holder of such Claim the property
securing such Claim, in which event any Allowed Deficiency Claim of the Holder
shall be entitled to treatment in Class 6; or (d) accord the Person holding such
Claim such other treatment as may be agreed to by such Person and Reorganized
GCX or Reorganized GCT.
5.3 Class 3 - Claims of Heller. As to each Class 3 Claim, Reorganized GCX
or Reorganized GCT will reinstate such Class 3 Claim by curing all outstanding
defaults and leaving all legal, equitable, and contractual rights unaltered,
except as permitted by Bankruptcy Code Section 1124(2); provided, that, at the
option of AMCE, Reorganized GCX or Reorganized GCT shall have the right to pay
such Allowed Class 3 Claim in full in Cash on the Effective Date, or as soon
thereafter as practicable, in full satisfaction of such Allowed Class 3 Claim.
For purposes of the foregoing, Heller shall be deemed to have an Allowed Class 3
Claim in the amount of $28,408,027 as of December 4, 2001, which amount shall be
reduced by that portion of any Adequate Protection Payments thereafter made to
Heller through the Effective Date which is applied to the principal amount of
Heller's Allowed Class 3 Claim.
5.4 Class 4 - Claims of the Domestic Banks.
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5.4.1 If and only if the Bank Support Agreement Condition is
satisfied or waived by AMCE and the Domestic Banks vote to accept the Plan,
Class 4 Claims shall receive the following treatment under the Plan (the
"Consensual Class 4 Treatment"): For purposes of the Plan, the Domestic Banks
shall be deemed to have Allowed Class 4 Claims in the aggregate amount of $44.6
million. On the Effective Date, or as soon thereafter as practicable, each
Holder of an Allowed Class 4 Claim will receive New AMCE Notes with a face
amount equal to 100% of its Allowed Class 4 Claim; provided, however, that each
Holder of an Allowed Class 4 Claim may elect to exercise the New AMCE Notes
Exchange Option, and receive Cash in an amount equal to 87.5% of the face amount
of the New AMCE Notes to which it would otherwise be entitled. Whether or not
the New AMCE Notes Exchange Option is exercised, the consideration provided for
herein shall be in full satisfaction of all Allowed Class 4 Claims for all
purposes, and without limiting the foregoing, will be deemed to fully satisfy
all Claims and rights of the Domestic Banks against Harcourt under the
Intercreditor Agreement.
5.4.2 In the event the Bank Support Agreement Condition is not
satisfied or waived by AMCE, the treatment of Class 4 Claims under the Plan
shall be either, at the election of AMCE: (a) On the Effective Date, or as soon
thereafter as practicable, each Holder of an Allowed Class 4 Claim will receive
New AMCE Notes with a face amount equal to one hundred percent (100%) of its
Allowed Class 4 Claim. In the event the Bankruptcy Court determines that the
fair market value (based on the average of the bid and ask prices on the trading
date immediately prior to the Effective Date) of the New AMCE Notes to be
distributed to the Holders of Allowed Class 4 Claims is less than the Allowed
Amount of such Claim, such Holders shall be entitled to receive: (a) additional
New AMCE Notes with a fair market value (as determined above) equal to any such
deficiency; or (b) such alternative treatment (the "Class 4 Alternative
Treatment") as designated by AMCE on or before the AMCE Election Deadline,
provided such Class 4 Alternative
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Treatment does not require any reduction in the amount of the consideration that
would have been received by the Holders of Allowed Claims in any other Class
absent such Class 4 Alternative Treatment and, provided further, such Class 4
Alternative Treatment does not have a material adverse effect on the treatment
of any other Class of Claims under the Plan. The foregoing consideration under
either subparagraphs (a) or (b) shall be in full satisfaction of all Allowed
Class 4 Claims for all purposes, and without limiting the foregoing, will be
deemed to fully satisfy all claims and rights of the Domestic Banks against
Harcourt under the Intercreditor Agreement, provided, however, that if the
Bankruptcy Court enters a Final Order determining that the amount of the "Senior
Debt" (as defined in the Intercreditor Agreement) that the Holders of Allowed
Class 4 Claims are entitled to recover from Harcourt under the Intercreditor
Agreement is in excess of the Allowed Amount of their respective Allowed Class 4
Claims, such Holders shall be entitled to receive additional New AMCE Notes with
a fair market value (as determined above) equal to any such excess.
5.4.3 AMCE shall have the right to pay Cash to such Holders of Class
4 Claims as it may select in lieu of part of the New AMCE Notes, at 100% of the
principal amount thereof, to the extent that AMCE's bond indentures restrict
AMCE's ability to issue New AMCE Notes in excess of a certain aggregate amount.
5.5 Class 5 - Claims of the GECC Group. For purposes of the Plan, the GECC
Group shall be deemed to have Allowed Class 5 Claims in the aggregate amount of
$78.3 million less the GECC Excess Payments. Accordingly, all amounts of Allowed
Claims set forth in Sections 5.5.1 through 5.5.3 shall be reduced by a ratable
portion of the GECC Excess Payments.
5.5.1 On the Effective Date, or as soon thereafter as practicable,
each Holder of an Allowed Class 5 Claim secured by identifiable equipment or
leaseholds (i.e., all members of the GECC Group excluding The Fifth Third
Leasing Company ("Fifth Third") and Bank Leumi Leasing Corp. ("Bank Leumi")),
whose Allowed Class 5 Claims for purposes of the Plan shall be $71.1 million in
the aggregate, will receive the following consideration: (a) New AMCE Notes with
a face amount equal to 90% of its Allowed Class 5 Claim (i.e., approximately $64
million in the aggregate); provided, however, that each such Holder of an
Allowed Class 5 Claim shall have the right to exercise the New AMCE Notes
Exchange Option for the New AMCE Notes to which it would otherwise be entitled
(such that such Holders may exercise the New AMCE
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Notes Exchange Option to receive up to approximately $56 million in cash in the
aggregate); and (b) New AMCE Stock with an aggregate Plan Value equal to 4.5% of
its Allowed Class 5 Claim (i.e., approximately $3.2 million of aggregate Plan
Value).
5.5.2 On the Effective Date, or as soon thereafter as practicable,
each Holder of an Allowed Class 5 Claim secured by unidentifiable equipment
(i.e., Fifth Third and Bank Leumi), whose Allowed Class 5 Claims shall not
exceed $7.2 million in the aggregate, will receive the following consideration
(a) New AMCE Notes with a face amount equal to 50% of its Allowed Class 5 Claim
(i.e., approximately $3.6 million in the aggregate); provided, however, that
each Holder of an Allowed Class 5 Claim shall have the right to exercise the New
AMCE Notes Exchange Option for the New AMCE Notes to which it would otherwise be
entitled (such that such Holders may exercise the New AMCE Notes Exchange Option
to receive up to approximately $3.15 million in cash in the aggregate); and (b)
New AMCE Stock with an aggregate Plan Value equal to 22.5% of its Allowed Class
5 Claim (i.e., approximately $1.62 million of aggregate Plan Value).
5.5.3 AMCE shall have the right to pay Cash to such Holders of Class
5 Claims as it may select in lieu of part of the New AMCE Notes, at 100% of the
principal amount thereof, to the extent that AMCE's current bond indenture
restricts AMCE's ability to issue New AMCE Notes in excess of a certain
aggregate amount.
5.5.4 Holders of Allowed Class 5 Claims who are "qualified
institutional buyers," as that term is defined in Rule 144A promulgated pursuant
to the Securities Act of 1933, shall be entitled to participate in the Equity
Financing in an amount of up to $6,250,000. Such Holders of Allowed Class 5
Claims shall be entitled to participate in such amount Pro Rata in proportion to
the amount of their Allowed Class 5 Claims and shall have over-subscription
rights to the extent other holders of Allowed Class 5 Claims do not subscribe
for their respective Pro Rata shares. Such participation shall be at the same
purchase price per share as the other participants in the Equity Financing. This
Section 5.5.4 shall not apply if AMCE elects to
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modify the Plan under Section 5.10.7 or if an objection to the treatment of
Class 10 under the Plan is sustained by the Bankruptcy Court.
5.6 Class 6 - Unsecured Claims.
5.6.1 Each Holder of an Allowed Class 6 Claim will receive New AMCE
Stock with an aggregate Plan Value equal to such Holder's pro rata share of the
sum of (a) the Base Class 6 Recovery plus (b) the Conditional Class 6 Recovery
(if any), each as defined below after payment of, or provision for payment of
actual or anticipated Class 6 Distribution Expenses; provided, that in no event
shall Holders of Allowed Class 6 Claims receive New AMCE Stock with a Plan Value
in excess of 100% of their Allowed Claims minus the Class 6 Distribution
Expenses.
5.6.2 The "Base Class 6 Recovery" shall be equal to: (v) $37.5
million (plus, if and only if (A) AMCE exercises its rights to require the
Debtors to reject any Newly Rejected Lease and (B) AMCE has been afforded the
reasonable opportunity to renegotiate the terms of any such Newly Rejected Lease
prior to such rejection, 32/45's (or 71.1%) of the Allowed Class 6 Claim of the
lessor arising as a result of such rejection of the Newly Rejected Leases); plus
(x) to the extent that any Class 6 Claims are allowed on account of the
rejection of the theatre leases known as Rancho (Unit 422), Galleria (Unit 744),
Lincoln Mall (Unit 870) or Deerfield 8 (Unit 922) (such Allowed Class 6 Claims
being hereinafter referred to in the aggregate as the "Allowed Designated Lease
Claims"), the positive amount (if any) that results from multiplying (i) the
lesser of $1.4 million or the Allowed Designated Lease Claims, minus (in either
case) $650,000 and (ii) that fraction, the numerator of which fraction is the
total Plan Value of the New AMCE Stock (plus, if applicable under clause (b) of
the Conditional Class 6 Recovery, the Plan Value of the Top-Up AMCE Stock and
any cash substituted by Harcourt therefor) that would have been distributed to
the holders of Allowed Class 6 Claims had the Allowed Designated Lease Claims
been zero, and the denominator of which is the total amount of the Allowed Class
6 Claims other than the Allowed Designated
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Lease Claims; minus (y) the amount (if any) by which the aggregate amount of the
Allowed Deduction Claims exceeds the Deduction Claims Limit; plus (z) the amount
(if any) by which the aggregate amount of the Allowed Deduction Claims is less
then the Deduction Claims Limit. All Class 6 Distribution Expenses and all
distributions on account of all Allowed Convenience Claims shall be satisfied
from the Class 6 Recovery.
5.6.3 The "Conditional Class 6 Recovery" shall be equal to the sum
of the following, which shall be conditioned upon occurrence of the conditions
described in clauses (a) and (b) and may therefore be zero:
(a) If AMCE elects Option A, AMCE will make available for
distribution on account of the Allowed GCX Guaranty Claims New AMCE Stock with a
Plan Value equal to that fraction of the Allowed GCX Guaranty Claims, the
numerator of which is the total Plan Value of the New AMCE Stock (plus, if
applicable under clause (b) of the Conditional Class 6 Recovery, the Plan Value
of the Top-Up AMCE Stock and any cash substituted by Harcourt therefor) that
would have been distributed to the Holders of Allowed Class 6 Claims had AMCE
not elected Option A and this provision had not become effective, and the
denominator of which is the total amount of the Allowed Class 6 Claims other
than the Allowed GCX Guaranty Claims. The Plan Value of such New AMCE Stock
distributed with respect to each Allowed GCX Guaranty Claim shall be applied to
reduce the amount of debt outstanding under the JV Loan to which each Allowed
GCX Guaranty Claim relates; plus
(b) to the extent any Class 6 Claims are Allowed on account of the
rejection of any of the Identified Leases (any such Allowed Claims being
"Allowed Identified Lease Claims"), Harcourt shall, at its own expense, purchase
AMCE Stock in the open market (or New AMCE Stock if agreed by AMCE) to be
delivered to the Class 6 Distribution Agent for distribution to the holders of
Allowed Class 6 Claims such that, when added to the New AMCE Stock made
available by AMCE under the Base Class 6 Recovery and any New AMCE Stock to be
distributed under clause (a) above, the AMCE Stock made available by Harcourt is
sufficient to enable holders of Allowed Class 6 Claims other than the holders of
Allowed Identified Lease
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Claims to receive the same amount of AMCE Stock per dollar amount of their
Allowed Class 6 Claims as they would have received if the Allowed Identified
Lease Claims had not been allowed (the "Top-Up AMCE Stock"); provided, that
Harcourt may satisfy this obligation by delivering to the Class 6 Distribution
Agent, in Harcourt's discretion, either a number of shares of AMCE Stock equal
to the Top-Up AMCE Stock or cash in an amount equal to the market value of the
Top-Up AMCE Stock as of the Effective Date. Except as provided in the preceding
clause (b), Harcourt shall have no responsibility with respect to any
distributions to the Holders of any Allowed Class 6 Claim.
(c) The Conditional Class 6 Recovery is intended to provide for the
same treatment to the holders of Allowed Class 6 Claims that are determined to
be such under the conditions described in clauses (a) and (b) of this Section
5.6.3 (in terms of the number of shares of AMCE Stock per dollar of Allowed
Class 6 Claims) as other holders of Allowed Class 6 Claims would receive if the
Claims described in clauses (a) and (b) of this Section 5.6.3 had not become
Allowed Class 6 Claims, and the Conditional Class 6 Recovery shall be
interpreted accordingly.
5.6.4 Notwithstanding anything to the contrary contained herein, the
treatment of Allowed Class 6 Claims under the Plan is predicated upon the fact
that all of the Identified Leases (other than the Erie Commons, Summit Park and
Midway Mall leases, which shall be rejected) and all Assigned Leases have been
rejected or have been deemed rejected under section 365(d) of the Bankruptcy
Code. Accordingly, notwithstanding anything to the contrary contained herein,
the Debtors have rejected or shall be deemed to have rejected all Identified
Leases and all Assigned Leases and neither the Identified Leases nor the
Assigned Leases shall constitute Newly Rejected Leases for the purposes of the
Plan.
5.7 Class 7 - Convenience Claims
5.7.1 As soon as practicable following the AMCE Class 6 Distribution
Date, each Holder of an Allowed Convenience Claim shall receive Cash paid from
the Class 6 Recovery (or the proceeds thereof), in an amount equal to seventy
percent (70%) of such
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Holder's Allowed Convenience Claim. Notwithstanding the foregoing, if the
Convenience Claim Amount exceeds $425,000.00 the Committee may elect, on or
before the Confirmation Date, to eliminate Class 7 of the Plan, in which event
each and every Allowed Convenience Claim shall be treated in all respects as an
Allowed Class 6 Claim and any election of the Holder thereof to reduce its
Allowed Claim to $500 shall be deemed null and void.
5.8 Class 8 - GCX Unsecured Claims
5.8.1 In the event AMCE elects Option B, on the Effective Date, or
as soon thereafter as reasonably practicable, each Holder of an Allowed Class 8
Claim shall receive New AMC Stock with a Plan Value or, at AMCE's option, Cash,
equal to nine percent (9%) of such Holder's Allowed Class 8 Claim; or such other
treatment as AMCE may elect on or before the AMCE Election Deadline, provided
such other treatment: (i) does not require any reduction in the amount of the
consideration that would be received by the Holders of Allowed Claims in any
other Class below that which would have been received had AMCE elected Option A;
and (ii) does not have a material adverse effect on the treatment of any other
Class of Claims as compared to the treatment that would have been received had
AMCE elected Option A.
5.9 Class 9 - Claims of Harcourt.
5.9.1 On the Effective Date, or as soon thereafter as practicable,
in full satisfaction of Harcourt's Class 9 Claims (i) Harcourt will receive Cash
in an amount equal to $1 million; and (ii) AMCE shall, as to each of the
Harcourt Leases either (a) agree to become a substitute guarantor of such
Harcourt Lease in exchange for the lessor under such Harcourt Lease releasing
Harcourt from all claims thereunder or (b) absent such a release of Harcourt by
the applicable lessor, provide an indemnification pursuant to an indemnification
agreement in form and substance reasonably satisfactory to AMCE and Harcourt
(the "Harcourt Indemnification Agreement") to Harcourt against any further
liability related to such Harcourt Lease (which indemnification shall include
any and all costs and liabilities of Harcourt arising after the Effective Date
in connection with a default under such Harcourt Lease, including but not
limited to reasonable fees of counsel, but shall not include any guarantee fee
or other payment that is not
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based upon actual costs incurred by Harcourt in satisfying or defending its
obligations under the applicable Harcourt Lease). The Harcourt Leases shall be
assumed or assumed and assigned as of the Effective Date, without any payment or
subsidy from Harcourt. No Harcourt Lease shall be rejected without Harcourt's
consent, unless otherwise agreed by AMCE and Harcourt in connection with the
Harcourt Lease renegotiations described below.
5.9.2 AMCE acknowledges that Harcourt has paid certain Cure Claims
relating to the Plaza at Chapel lease (Unit 496) in the amount of $56,423.99 and
Centennial lease (Unit 942) in the amount of $90,986.67, and Harcourt shall have
an Allowed Administrative Claim and will be reimbursed for such payments on the
Effective Date in lieu of any Claims with respect to such Cure Claims by such
lessors. Such payments shall be deemed to constitute Cure Claims for purposes of
calculating Deduction Claims.
5.9.3 Harcourt shall also be released from all claims of the
Domestic Banks under the Intercreditor Agreement, and the Reimbursement and
Security Agreement described therein shall terminate and be of no further force
or effect.
5.9.4 AMCE shall use reasonable commercial efforts (which shall not
be interpreted to require AMCE to pay any amount other than its own attorneys'
fees) to renegotiate the Harcourt Leases prior to the Effective Date. Except as
provided in the following sentence, Harcourt shall be entitled to participate in
such renegotiations until the Effective Date, but direction and control of such
renegotiations shall be at AMCE's sole and absolute discretion. Harcourt shall
not be entitled to participate in renegotiation of the Reserved Leases;
provided, that AMCE shall keep Harcourt reasonably informed with respect to the
status of such negotiations and provided further that AMCE shall not seek or
obtain lease concessions on other leases AMCE may have with the lessors under
the Reserved Leases in lieu of lease concessions under the Reserved Leases
without Harcourt's consent. If the renegotiation of any Reserved Lease results
in an agreement with the lessor for a replacement lease or lease buyout within
the time frames set forth below, Harcourt will be entitled to the following: (1)
with respect to each Reserved Lease for which an agreement for a replacement
lease or lease buyout is executed prior
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to the Effective Date, Harcourt will be entitled to receive New AMCE Stock with
a Plan Value of $250,000 on the Effective Date; and (2) with respect to each
Reserved Lease for which AMCE received a written proposal from the lessor for a
replacement lease or lease buyout prior to the Effective Date and for which AMCE
and such lessor execute an agreement for a replacement lease or lease buyout
within six (6) months after the Effective Date on terms that are at least as
favorable to the lessee (after taking into account any payment to Harcourt
pursuant to the Plan) as those contained in such proposal, Harcourt will be
entitled to receive New AMCE Stock with a Plan Value of $250,000 within ten (10)
business days following execution of such post-Effective Date agreement.
5.9.5 Harcourt agrees that it will work cooperatively with AMCE with
respect to the renegotiation of the Harcourt Leases. Regardless of whether
Harcourt participates in a renegotiation, Harcourt shall receive the net present
value, using a 10% discount rate, of 50% of any rent reductions (net of
inducement payments, if any, paid by AMCE) that are renegotiated prior to the
Effective Date for any of the Harcourt Leases (excluding any rent reductions
that may be part of a replacement lease with respect to a Reserved Lease or a
lease buyout of a Reserved Lease, but otherwise including any rent reduction on
a Reserved Lease). For purposes of the foregoing, a rent reduction will be
deemed to have been renegotiated prior to the Effective Date if either (a) the
rent reduction is documented by an executed and fully effective lease amendment
(a "Harcourt Lease Amendment") prior to or on the Effective Date, or (b)
notwithstanding that a Harcourt Lease Amendment was not obtained by the
Effective Date, (1) the rent reduction was evidenced by a written proposal from
the lessor under the applicable Harcourt Lease prior to the Effective Date and
(2) a Harcourt Lease Amendment is executed within six (6) months following the
Effective Date that includes terms that are at least as favorable to the lessee
(after taking into account any payment to Harcourt pursuant to the Plan) as
those contained in such proposal. Amounts to which Harcourt is entitled under
this paragraph, if any, shall be payable in cash on the later of (1) the
Effective Date, or as soon thereafter as practicable, or (2) the date of
execution of the applicable Harcourt Lease Amendment.
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5.9.6 Furthermore, except for Springfield Mall, Virginia (Unit 867);
Southlake, Indiana (Unit 875); Ford City, Illinois (Unit 940); and Bay Plaza,
New York (Unit 902), AMCE shall not extend the term of any of the leases of
which Harcourt is a guarantor beyond its current term, unless Harcourt is
provided evidence reasonably satisfactory to it that it is not liable, or is
removed, as guarantor of the applicable lease for any such extension period.
5.9.7 GCX shall also assign to Harcourt, without representation or
recourse, all of GCX's right, title and interest in, to and under any collateral
or security, including without limitation any letters of credit, guaranties and
other security or documents supporting the non-GCX assignee's or subtenant's
liability under any Assigned Leases under which Harcourt may have contingent
liability, whether as a guarantor, original tenant or otherwise.
5.9.8 Harcourt's (and its Affiliates') recovery and distribution
under the Plan shall be exclusively as set forth in this treatment of Class 9
Allowed Claims, and Harcourt (and its Affiliates) shall not be entitled to
assert any Claim in Class 6 or any other Class, whether in its own name, in the
name of a third party landlord , as subrogee, as assignee or otherwise. As of
the Effective Date of the Plan, Harcourt (and its Affiliates) shall be deemed to
have withdrawn any and all proofs of claim asserted against the Debtors in any
and all such capacities, with prejudice.
5.10 Class 10 - Interests in GCX.
5.10.1 Subject to satisfaction of the Class 10 Participation
Conditions (as defined below), a limited liability company ("New Investments
LLC") will acquire 100% of the membership interests in GCC Investments LLC
("GCCI LLC") and, subject to certain conditions, the equity interests in New
Investments LLC will be distributed to (i) Holders of Allowed Interests, (ii)
AMCE or its designee and (iii) investors who participate in a $16,250,000 equity
financing to be conducted by New Investments LLC, as described in more detail
below. Immediately prior to such acquisition by New Investments LLC, any
investment portfolio assets, any net proceeds received after the filing of the
Plan with respect to or from a disposition of such assets not initiated by GCCI
LLC, and any furniture, fixtures and equipment that are owned by
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GCC Investments, Inc. ("GCCI Inc.") will be transferred to GCCI LLC, subject to
any restrictions on transfers binding on GCCI Inc. with respect to such
investments.
5.10.2 If and only if the Class 10 Participation Conditions are
satisfied, and not otherwise, Holders of Allowed Interests shall receive the
following consideration on the Effective Date, or as soon thereafter as
practicable:
(i) Each such Holder shall receive its Pro Rata Share of (i)
$100,000.00 Cash plus (ii) 10.416667% of the limited liability interests (the
"LLC Interests") of New Investments LLC (the "Class 10 Percentage"), which
percentage shall be increased to 14% if the Preferred LLC Interest Repurchase,
as described below, occurs. "Pro Rata Share" means the percentage calculated by
dividing such Holder's Allowed Common Stock Interest by the aggregate amount of
all Allowed Interests.
(ii) The distribution to each such Holder of its LLC Interests
shall be subject to and contingent upon the following conditions (the
"Distribution Conditions"): (i) the filing of the notification of election on
Form N-54A by New Investments LLC to be subject to the provisions of Sections 54
through 65 (applicable to business development companies) of the Investment
Company Act of 1940 (the "BDC Election"), (ii) effectiveness of the registration
of New Investments LLC on Form 10 under Section 12(g) of the Securities Exchange
Act of 1934 (the "34 Act Registration"), and (iii) the effectiveness of
registration of New Investment LLC's investment manager (the "Investment
Manager") as an investment adviser under the Investment Advisers Act of 1940
(the "Adviser Act Registration"), without, in the case of any of the BDC
Election, the 34 Act Registration or the Adviser Act Registration, the SEC
requiring any changes to the terms and provisions applicable to New Investments
LLC and the Investment Manager as described herein or in the Form 10 or
indicating that any such term or provision might violate a provision of law or
regulation or subject New Investments LLC, the Investment Manager or their
respective members, managers, employees or agents to any liability. If the
Distribution Conditions do not occur, New Investments LLC shall have the option
at the sole discretion of the Investment Manager to direct that no LLC Interests
shall be distributed to the Holders of
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Allowed Interests. If New Investments LLC exercises such option, (i) the LLC
Interests which would otherwise be distributed to the Holders shall be held by
AMCE, or at AMCE's election, Reorganized GCX or another of AMCE's designees,
(ii) New Investments LLC shall withdraw or not make, as the case may be, its BDC
Election and 34 Act Registration and the Investment Manager shall withdraw or
not make the Adviser Act Registration, (iii) New Investments LLC will operate as
an investment company exempt from registration under the Investment Company Act
of 1940 (the "40 Act"), and (iv) the Holders of Allowed Interests will not
receive the Cash distribution described above. In such event, none of New
Investments LLC, the Investment Manager, the Reorganized Debtors or AMCE, nor
their respective members, managers, employees or agents shall have any liability
to the Holders of Allowed Interests if such Holders do not receive any
distribution of LLC Interests or Cash.
(iii) It is anticipated that New Investments LLC will file the
Form 10 prior to the Effective Date, and unless the SEC agrees to accelerated
consideration of the Form 10, the SEC's decision to declare the Form 10
effective under the Securities Exchange Act of 1934 (the "34 Act") shall require
at least 60 days from filing. Because the BDC Election will become effective
upon filing, it is anticipated that New Investments LLC will make the BDC
Election only upon the effectiveness of the 34 Act Registration. Accordingly,
any distribution of LLC Interests to Holders of Allowed Interests may be delayed
until several months after confirmation until the Distribution Conditions have
been fulfilled or waived.
5.10.3 As a condition to the acquisition by New Investments LLC of
the equity interests in GCCI LLC, New Investments LLC shall have raised in an
equity financing (the "Equity Financing") $16,250,000 in invested or committed
capital. Investors in the Equity Financing will receive LLC Interests in New
Investments LLC, which LLC Interests will represent, after the issuance of the
Preferred LLC Interests and the Class 10 LLC Interests, 63.988095% of the equity
of New Investments LLC. In the event the Preferred LLC Interest Repurchase
occurs, the LLC Interests acquired by the investors in the Equity Financing will
represent 86% of the equity of New Investments LLC.
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5.10.4 The remaining equity interests in New Investments LLC will be
a special class of equity interests (the "Preferred LLC Interests") which will
be owned by AMCE, or at AMCE's election, Reorganized GCX or another of AMCE's
designees. The Preferred LLC Interests will represent 25.595238% of the equity
of New Investments LLC and will be entitled to receive a distribution priority
in an amount equal to $6.5 million (the "Preferred LLC Priority Amount"). The
Preferred LLC Interests will further be subject to an option in favor of New
Investments LLC to purchase all, but not less than all, of such Preferred LLC
Interests for $6.5 million in Cash within 30 days (the "Option Period") after
the Effective Date. In the event such option is not exercised, AMCE or its
designee shall have the right to put such Preferred LLC Interests to New
Investments LLC at any time during the seven (7) day period after the expiration
of the Option Period for such $6.5 million amount. (The exercise of either of
such option or such put is referred to as the "Preferred LLC Interest
Repurchase.") New Investments LLC shall not incur debt or grant liens upon its
assets without the consent of the holders of the Preferred LLC Interests while
they remain outstanding.
5.10.5 The foregoing description of New Investment LLC is not
intended to be a comprehensive description of the governance and other
provisions of the agreement (the "New Investments LLC Agreement") forming and
governing New Investments LLC, which are described in more detail in the
Disclosure Statement and shall be set forth, together with the changes thereto
(if any) in the New Investments LLC Agreement to be filed with the Plan
Documentary Supplement. To the extent of any inconsistency between the Plan,
Disclosure Statement and the New Investments LLC Agreement, the New Investments
LLC Agreement shall govern.
5.10.6 If (a) prior to February 4, 2002, members of the family of
Richard A. Smith or their affiliates (the "Smith Family") and New Investments
LLC have not executed an agreement obligating the Smith Family to provide the
Equity Financing and New Investments LLC to consummate the transactions
described herein with respect to the Class 10 treatment, subject only to the
conditions described herein, or (b) prior to the Confirmation Date, the
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$16,250,000 to be raised in the Equity Financing has not been invested in or
committed to New Investments LLC (the "Class 10 Participation Conditions"), the
Holders of Allowed Interests shall receive no consideration under the Plan.
5.10.7 Notwithstanding anything to the contrary contained herein, in
the event than any Class of Claims does not accept the Plan, and the Bankruptcy
Court determines that the proposed treatment of Class 10 as set forth herein
violates the provisions of section 1129(b)(2) of the Bankruptcy Code with
respect to the treatment of such nonaccepting Class, the treatment of Class 10
shall be modified in any manner elected by AMCE to the extent necessary to cause
the Plan not to violate the provisions of section 1129(b)(2) of the Bankruptcy
Code. In addition, if any party in interest objects to the treatment of Class 10
as set forth herein and the Bankruptcy Court sustains such objection, then the
Holders of Allowed Interests shall receive no consideration under the Plan. As a
matter of disclosure but not as an obligation under or pursuant to the Plan, in
such event Reorganized GCCI Inc. would retain all of its interest in GCCI LLC on
the Effective Date but AMCE would intend to cause the sale of such interest to
New Investments LLC after the Effective Date for $6.5 million.
5.10.8 All Existing GCX Common Stock shall be deemed cancelled on
the Effective Date.
5.11 Class 11 - Common Stock Options. On the Effective Date, all existing,
unexercised options to acquire Existing GCX Common Stock shall be cancelled, and
Holders of such options shall not receive or retain any property on account of
such options or any Claim or Interest arising out of or relating to such
options.
5.12 Class 12 - Intercompany Claims. At the election of AMCE, and with the
agreement of Reorganized GCX and the applicable Reorganized Debtor, the Debtors,
with respect to each Intercompany Claim that is reflected on the Debtors' books
and records as of the Effective Date, may either (i) eliminate such Intercompany
Claim on the Effective Date either through (a) the declaration of intercompany
dividends and/or contributions to capital, or (b) cancellation of such
Intercompany Claim, or (ii) leave such Intercompany Claim unimpaired,
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in which event such Intercompany Claim shall continue in full force and effect
notwithstanding the Confirmation Order and this Plan. Any other Intercompany
Claims that are not reflected on the Debtors books and records as of the
Effective Date shall be deemed to be released as of the Effective Date.
5.13 Class 13 - Interests in Each Debtor Other than GCX. At the election
of AMCE, and with the agreement of Reorganized GCX and the applicable
Reorganized Debtor, the Allowed Interest represented by the common stock of each
Debtor, other than the Existing GCX Common Stock, shall be treated as follows:
(i) the holder of the common stock of such Debtor shall retain such common
stock; or (ii) the common stock of such Debtor shall be cancelled, and 100% of
the new common stock of such Debtor shall be issued to the existing holder of
such common stock or to such new holder as shall be designated by AMCE.
Article 6
ACCEPTANCE OR REJECTION OF PLAN
6.1 Classes Entitled to Vote. Classes 1, 2, 3, 12 and 13 are unimpaired
and are conclusively presumed pursuant to Section 1126(f) of the Bankruptcy Code
to have accepted the Plan. Classes 4, 5, 6, 7, 8, 9 and 10 shall be entitled to
vote to accept or reject the Plan. Class 11 is conclusively presumed pursuant to
Section 1126(g) of the Bankruptcy Code to have rejected the Plan.
Notwithstanding the foregoing, in the event the Class 10 Participation
Conditions are not satisfied, Class 10 shall conclusively be presumed pursuant
to Section 1126(g) of the Bankruptcy Code to have rejected the Plan.
6.2 Nonconsensual Confirmation. In the event that any Class of Claims or
Interests fails to accept the Plan as required by Section 1129(a) of the
Bankruptcy Code, the Proponents will request the Bankruptcy Court to confirm the
Plan in accordance with Section 1129(b) of the Bankruptcy Code. Without
limitation of any of the foregoing, in the event that any Class of Claims or
Interests fails to accept the Plan as required by Section 1129(a) of the
Bankruptcy Code, the Plan may be amended in accordance with Section 15.1 of the
Plan.
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ARTICLE 7
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1 Acquisition of GCX by AMCE. On the Effective Date, pursuant to the
AMCE Acquisition Agreement: (i) all of the Existing GCX Common Stock shall be
cancelled, and 100% of the New GCX Common Stock shall be issued to AMCE or its
designee; (ii) all of the existing issued and outstanding common stock of GCT
shall be cancelled and one hundred percent (100%) of the New Common Stock of
Reorganized GCT shall be re-issued to AMCE or its designee; (iii) all of the
issued and outstanding stock of General Cinema International, Inc. shall be
conveyed to AMCE or its designee; and (iv) all of the existing issued and
outstanding common stock of GCCI Inc. shall be canceled and 100% of the new
common stock of Reorganized GCCI Inc. shall be issued to AMCE or its designee.
Thereafter, Reorganized GCX, the other Reorganized Debtors and their direct and
indirect non-Debtor subsidiaries (other than GCC Investments) shall be operated
as direct and indirect subsidiaries of AMCE, unless otherwise elected by AMCE;
and AMCE shall have no liability for any Claims against or other liabilities or
obligations of the Debtors or any of their non-Debtor subsidiaries, except for
(i) the specific obligations to issue New AMCE Securities or Cash in lieu
thereof as specifically provided under Sections 5.4 through 5.6 of the Plan and
(ii) the obligations to Harcourt provided under Section 5.9 of the Plan (and any
documents to be executed by AMCE in favor of Harcourt pursuant to Section 5.9 of
the Plan). Plan Documents corresponding to the final form of the transaction
under which AMCE will acquire the Reorganized Debtors shall be filed with the
Clerk of the Bankruptcy Court as a part of the Plan Documentary Supplement.
7.2 Sources of Funds and Other Consideration Under The Plan. AMCE shall
deliver all New AMCE Stock and New AMCE Notes (or Cash in lieu thereof), and
Reorganized GCX or Reorganized GCT shall deliver all other Cash required for
distributions under the Plan other than distributions to Holders of Allowed
Convenience Claims, which shall be paid out of the Class 6 Recovery (except
that, to the extent that Reorganized GCX and Reorganized GCT have insufficient
Cash for this purpose, AMCE shall provide the Cash necessary to cover the
shortfall)
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to the Distribution Agent, Class 6 Distribution Agent, or to Persons designated
in writing by the Distribution Agent and Class 6 Distribution Agent. The New
AMCE Stock distributable to the Holders of Allowed Class 6 Claims pursuant to
subparagraphs (u) (other than as a result of the rejection of any Newly Rejected
Leases), (w), (x) and/or (y) of Section 5.6.2 of the Plan (after reserving for
Disputed Deduction Claims pursuant to Section 7.3 of the Plan) shall be
delivered by AMCE to the Class 6 Distribution Agent or (if the Committee elects
to establish the Unsecured Stock Trust) to the Unsecured Stock Trustee on the
AMCE Class 6 Distribution Date. AMCE shall distribute to the Class 6
Distribution Agent or (if the Committee has elected to establish the Unsecured
Stock Trust) the Unsecured Stock Trustee any amounts distributable to the
Holders of Allowed Class 6 Claims as a result of the allowance of Claims on
account of Newly Rejected Leases as soon as practicable, but in any event no
more than ten (10) business days after any Newly Rejected Lease Claim becomes an
Allowed Claim. AMCE shall deliver to the Class 6 Distribution Agent or (if the
Committee has elected to established the Unsecured Stock Trust) the Unsecured
Stock Trustee (as defined below) any amounts distributable to the Holders of
Allowed Class 6 Claims pursuant to Sections 5.6.2 (v) or 5.6.3(a) of the Plan
and Harcourt shall deliver to the Class 6 Distribution Agent or (if the
Committee has established the Unsecured Stock Trust) the Unsecured Stock Trustee
any amounts distributable to the Holders of Allowed Class 6 Claims pursuant to
Section 5.6.3(b) of the Plan as soon as practicable, but in any event no later
than ten (10) business days after objections with respect to all Disputed Class
6 Claims have been finally resolved including all appeals thereof, and the
Post-Confirmation Committee indicates in writing that it has completed
objections with respect to all Disputed Class 6 Claims and has calculated the
final percentage distribution received, or to be received by the Holders of
Allowed Class 6 Claims, and provides AMCE with detailed supporting information
for such calculation; provided, however, that if AMCE disputes the
Post-Confirmation Committee's calculation, such distributions shall not be made
until ten (10) business days after such dispute is resolved by the Bankruptcy
Court (or pursuant to such other mechanism as may be agreed to by both the
Post-Confirmation Committee and AMCE). In the event the Committee
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does not elect to establish the Unsecured Stock Trust, the Class 6 Distribution
Agent may reserve New AMCE Stock with a Plan Value not to exceed One Million
Dollars ($1,000,000) for the payment of actual or anticipated Class 6
Distribution Expenses and Allowed Convenience Claims and may sell or otherwise
dispose of no more than Twenty-five Thousand (25,000) shares of such New AMCE
Stock in any one week period. New Investments LLC shall issue and deliver to the
Distribution Agent or to Persons designated in writing by the Distribution Agent
all LLC Interests required for distributions under the Plan.
7.3 Reserve for Disputed Deduction Claims. In calculating the amount of
New AMCE Stock to be distributed by AMCE to the Class 6 Distribution Agent from
and after the Effective Date, to the extent that any Deduction Claims are
Disputed Deduction Claims, the face amount of the Disputed Deduction Claim shall
be used for the proposes of such calculation, and, without respect to each
Disputed Deduction Claim, New AMCE Stock with a Plan Value equal to such face
amount will be withheld by AMCE until such Disputed Deduction Claim becomes an
Allowed Deduction Claim. To the extent that Disputed Deduction Claims become
Allowed Deduction Claims and the Allowed Amount of such Claim is less than the
face amount of such Claim that was used for purposes of withholding by AMCE, as
soon as reasonably practicable thereafter, AMCE shall make additional
distributions of New AMCE Stock with respect to such difference calculated in
accordance with Section 5.6 of the Plan. AMCE shall, at all times, reserve a
sufficient number of shares of New AMCE Stock so as to be able to fully perform
its obligations pursuant to this Section 7.3.
7.4 Reserve for Newly Asserted Deduction Claims. In the event that,
following the initial distribution of New AMCE Stock to the Class 6 Distribution
Agent, a Deduction Claim that was not taken into account in making such initial
distribution of New AMCE Stock is filed or otherwise asserted against any
Reorganized Debtor: (i) the Class 6 Distribution Agent or Unsecured Stock
Trustee, as applicable, shall withhold from distribution and reserve New AMCE
Stock with a Plan Value equal to the face amount of such Deduction Claim; and
(ii) upon the entry of a Final Order determining the Allowed Amount of such
Deduction Claim, the Class
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6 Distribution Agent or the Unsecured Stock Trustee, as applicable, shall
deliver to AMCE New AMCE Stock with a Plan Value equal to such Allowed Amount
(or, if the Class 6 Distribution Agent or Unsecured Stock Trustee has
insufficient New AMCE Stock to do so, cash in an amount equal to the difference
between such Allowed Amount and the Plan Value of the New AMCE Stock which is so
delivered to AMCE, to the extent still in the possession of the Class 6
Distribution Agent or Unsecured Stock Trustee).
7.5 Unsecured Stock Trust. No later than ten (10) business days prior to
the Confirmation Hearing, the Committee may elect to create an Unsecured Stock
Trust on the Effective Date for the purpose of receiving, liquidating and
distributing the Class 6 Recovery to the Holders of Allowed Class 6 Claims. As a
condition to such election by the Committee, the Unsecured Stock Trustee shall
enter into the Stock Disposition Agreement with AMCE in form and substance
reasonably satisfactory to both the Committee and AMCE which shall, among other
things, establish parameters for the orderly liquidation of the New AMCE Stock,
and which agreement shall be Filed as part of the Plan Documentary Supplement.
The terms of the Unsecured Stock Trust shall be governed by an agreement (the
"Unsecured Stock Trust Agreement") and the disposition of New AMCE Stock
distributed to the Unsecured Stock Trust shall be governed by the Stock
Disposition Agreement, both to be filed by the Committee as part of the Plan
Documentary Supplement no later than ten (10) business days prior to the
Confirmation Hearing.
7.5.1 Beneficiaries. The beneficiaries of the Unsecured Stock Trust
shall be the Holders of Allowed Claims in Class 6. The net proceeds allocable to
the Holders of Claims in Class 6 will be distributed by the trustee to the
Persons entitled to such distributions in accordance with the allocation
percentages provided under the Plan. Neither AMCE nor the Reorganized Debtors
shall have any liability or responsibility with respect to such distribution by
the trustee of the Unsecured Stock Trust.
7.5.2 Trustee. The trustee (the "Unsecured Stock Trustee") of the
Unsecured Stock Trust shall be appointed by the Committee and disclosed no later
than ten (10) days prior
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to the Confirmation Hearing. The trustee shall be the exclusive trustee of the
assets of the Unsecured Stock Trust for purposes of 31 U.S.C. Section 3713(b)
and 26 U.S.C. Section 6012(b)(3). Powers, rights and responsibilities of the
trustee shall be specified in the Unsecured Stock Trust Agreement and shall
include the authority and responsibility to: (a) receive, manage and liquidate
the Class 6 Recovery and deposit sale proceeds in interest-bearing trust
accounts; (b) defend, prosecute and, if appropriate, compromise claims arising
in respect to trust assets; (c) pay taxes or other obligations incurred by the
trust; (d) retain and compensate from the trust assets, without further order of
the Bankruptcy Court, the services of professionals to advise and assist in the
administration, prosecution and distribution of trust assets, and (e) calculate
and implement distributions of trust assets. Other rights and duties of the
trustee and the beneficiaries shall be as set forth in the Unsecured Stock Trust
Agreement.
7.5.3 Funding. The costs of administration of the Unsecured Stock
Trust will be funded from the Class 6 Recovery.
7.6 Substantive Consolidation for Purposes of Claim Allowance and Plan
Distributions. Each Debtor shall be substantively consolidated with each other
Debtor, nunc pro tunc to the Petition Date, solely for purposes of the allowance
of Claims and distributions under the Plan and of confirmation, consummation and
implementation of the Plan, as follows: On the Effective Date, nunc pro tunc to
the Petition Date, (i) solely for the purposes of distribution under the Plan,
the assets and liabilities of each Debtor shall be deemed to be the assets and
liabilities of all of the Debtors and consolidated into a single estate; (ii)
all guarantees by any Debtor of the obligations of any other Debtor existing
prior to the Effective Date (regardless whether such guarantee is secured,
unsecured, liquidated, unliquidated, contingent, or disputed) shall be deemed
liquidated so that any Claim against any Debtor and any guarantee thereof
executed by any other Debtor, shall be deemed to be a single obligation of the
consolidated Debtors; (iii) any joint liability (including, but not limited to
joint and several liability) of any of the Debtors with one another shall be
deemed to be a single obligation of the consolidated Debtors; (iv) each and
every proof of claim filed or to be filed in the Cases, shall be deemed filed
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against the consolidated Debtors, and shall be deemed a single Claim against and
obligation of the consolidated Debtors, as applicable; and (v) all duplicative
claims (identical in both amount and subject matter) Filed against or deemed
Filed against more than one of the Debtors shall be automatically expunged so
that only one Claim survives against the consolidated Debtors (but in no way
shall such surviving Claim be deemed Allowed by reason of this Section). All
Claims based upon guarantees of collection, payment or performance made by any
Debtor as to the obligations of any other Debtor or of any other Person shall be
discharged, released and of no further force and effect; provided, however, that
nothing herein shall affect the obligations of each of the Debtors under the
Plan.
In addition, each of the Debtors and Reorganized Debtors shall be vested
with equal authority (a) to be heard with respect to the allowance or
disallowance of Claims (except Claims in Class 6) and requests for payment of
Administrative Claims, including but not limited to filing, prosecuting, and
settling objections thereto, (b) subject to the rights vested in the
Post-Confirmation Committee pursuant to Section 10.2 of the Plan, to commence,
prosecute, recover on account of, and settle Rights of Action, and (c) to
enforce the terms of this Plan and the Confirmation Order, including but not
limited to the Debtors' discharge, on behalf of each of the other Debtors and
Reorganized Debtors and their estates. Notwithstanding any other provisions of
this Section 7.6, the substantive consolidation for the purposes described above
shall not affect: (i) the Intercompany Claims and Interests in the Debtors,
which shall be treated as provided in this Plan, or (ii) the legal and
organizational structure of the Debtors, which shall be maintained, except as
otherwise provided in this Plan or as modified following the Effective Date at
the election of Reorganized GCX or AMCE. Notwithstanding any other provision of
this Section 7.6, in the event that AMCE elects Option B, the foregoing
provisions of Section 7.6 shall be applicable to all of the Debtors except GCX,
and GCX shall not be substantively consolidated with any other Debtor.
7.7 Corporate Restructuring Program and Continued Corporate
Existence of Reorganized Debtors.
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7.7.1 On the Effective Date, the Debtors shall implement the
Corporate Restructuring Program that is set forth in the Plan Documentary
Supplement, and made a part of this Plan. Pursuant to the Corporate
Restructuring Program, certain of the Debtor Affiliates either shall (i) be
merged into other Debtors or newly-created Affiliates of the Debtors, (ii) be
acquired by other surviving Debtors or newly-created Affiliates of the Debtors,
(iii) transfer some or all of their assets to other Debtors or newly-created
Affiliates of the Debtors, or (iv) be dissolved, with any assets of such
dissolved Debtor transferred to one or more of the other Debtors or
newly-created Affiliates of the Debtors. The Debtors and Reorganized Debtors are
authorized to take whatever corporate, joint venture, partnership, or limited
liability company action is necessary or advisable in order to accomplish the
Corporate Restructuring Program.
7.7.2 Except as provided for in the Corporate Restructuring
Plan, each of the Debtors shall, as a Reorganized Debtor, continue to exist
after the Effective Date as a separate legal entity, with all powers of a
corporation, limited liability company, joint venture, or partnership, as
applicable, under the laws of their respective states of incorporation,
formation, or organization, and without prejudice to any right to alter or
terminate such existence (whether by merger, acquisition, or otherwise) under
such applicable State law.
7.8 Issuance of New Stock.
7.8.1 On the Effective Date, Reorganized GCX shall be deemed
to have authorized the issuance of the New GCX Common Stock for distribution to
AMCE and Reorganized Investments, Inc. shall be deemed to have authorized the
issuance of new Investment, Inc. common stock to CDI, each in accordance with
the Plan, consistent with the Amended and Restated Certificate of Incorporation
or Charter For Reorganized GCX, Reorganized Investments, Inc. and the other Plan
Documents. All shares of New GCX Common Stock and new GCCI Inc. common stock
issued pursuant to the Plan will be, upon such issuance, validly issued, fully
paid and non-assessable.
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7.9 Amended and Restated Certificates of Incorporation or Charters and
Bylaws. As of the Effective Date, the certificates or articles of incorporation
or charter (or document of similar effect with respect to any Reorganized Debtor
that is not a corporation) of each of the Reorganized Debtors shall be the
Amended and Restated Certificates of Incorporation or Charters substantially in
the form of the exemplary documents included in the Plan Documentary Supplement.
The Amended and Restated Certificates of Incorporation or Charters will, among
other provisions, prohibit the issuance of non-voting equity securities to the
extent required by section 1123(a)(6) of the Bankruptcy Code. As of the
Effective Date, the bylaws of each of the Reorganized Debtors that are
corporations shall be the Amended and Restated Bylaws substantially in the form
of the exemplary documents included in the Plan Documentary Supplement. The
Amended and Restated Certificates of Incorporation or Charters and Amended and
Restated Bylaws shall be deemed effective as of the Effective Date by virtue of
the Confirmation Order without the need for any corporate, partnership, limited
liability company, joint venture, director, stockholder, partner, member, or
venturer action.
7.10 Management/Board of Directors. On the Effective Date, the
operation of the Reorganized Debtors shall become the general responsibility of
the Reorganized Debtors' newly-constituted Boards of Directors (the "New
Boards"), who shall thereafter have the responsibility for the management and
control of the Reorganized Debtors. As of the Effective Date, the New Boards
shall consist of the individuals to be designated by AMCE, as set forth in the
Plan Documentary Supplement. The initial senior officers of each of the
Reorganized Debtors as of the Effective Date shall consist of the individuals
designated by AMCE, whose names shall be set forth in the Plan Documentary
Supplement. All such directors and senior officers shall be deemed appointed
pursuant to the Confirmation Order without the need for any corporate action. As
of the Effective Date, those directors and senior officers not continuing in
office shall be deemed removed therefrom pursuant to the Confirmation Order
without the need for any corporate action. In accordance with Section 1129(a)(5)
of the Bankruptcy Code, the Proponents shall disclose no later than ten (10)
Business Days prior to the Confirmation Hearing: (a) the
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identity and affiliations of any individual proposed to serve, after the
Effective Date, as a director or officer of any of the Reorganized Debtors; and
(b) the identity of any "insider" (as such term is defined in Section 101(31) of
the Bankruptcy Code) who shall be employed and retained by any of the
Reorganized Debtors and the nature of any compensation for such insider.
7.11 Continuation of Retiree Benefits. To the extent required by
section 1129(a)(13) of the Bankruptcy Code, the Reorganized Debtors shall
continue to pay on and after the Effective Date all retiree benefits (within the
meaning of section 1114 of the Bankruptcy Code), at the level established in
accordance with section 1114 of the Bankruptcy Code, for the duration of the
period for which the Debtors have obligated themselves to provide such benefits.
However, the Reorganized Debtors shall retain all rights they currently have to
modify such plans. Reorganized GCX will continue as plan sponsor of the GC
Companies, Inc. Retirement Plan (effective December 16, 1993) immediately after
the Effective Date.
7.12 Corporate Actions. On the Effective Date, all actions contemplated
by the Plan shall be deemed authorized and approved in all respects (subject to
the provisions of the Plan) by virtue of the entry of the Confirmation Order, in
accordance with the Bankruptcy Code and applicable State law (including but not
limited to section 303 of the Delaware General Corporations Law, to the extent
applicable, and any analogous provision of the business corporation law or code
of each other State in which any Reorganized Debtor is incorporated or
organized) and without any requirement of further action by the stockholders,
directors, or members of the Debtors or the Reorganized Debtors, including,
without limitation, the following: (a) the adoption and the filing with the
Secretary of State of the State of Delaware or other applicable State of
incorporation of the Amended and Restated Certificates of Incorporation or
Charters; (b) the adoption of the Amended and Restated By-Laws; (c) if
applicable, the issuance by Reorganized GCX of the New GCX Common Stock and the
issuance by Reorganized GCCI Inc. of the new GCCI Inc. common stock; (d) the
cancellation of the Existing GCX Common Stock and the existing GCCI Inc. common
stock; (e) the cancellation of intercompany notes and other instruments
evidencing an Allowed Claim in Class 12 or an
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Allowed Interest in Class 13 to the extent such cancellation is elected pursuant
to Sections 5.12 or 5.13 of the Plan; (f) the issuance of new common stock of
any Reorganized Debtor if the existing common stock of such Debtor is cancelled;
(g) the execution and the delivery of, and the performance under, each of the
Plan Documents and all documents and agreements contemplated by or relating to
any of the foregoing; (h) the consummation and implementation of the Corporate
Restructuring Program; and (i) the removal of all members of the respective
Boards of Directors of the Debtors and the non-Debtor subsidiaries and the
election of all members of the Boards of Directors of the Reorganized Debtors
designated pursuant to the Plan. All matters provided for under the Plan
involving the corporate structure of the Debtors or Reorganized Debtors and any
corporate action required by the Debtors or by Reorganized Debtors in connection
with the Plan shall be deemed to have occurred and shall be in effect pursuant
to the Bankruptcy Code, without any requirement of further action by the
shareholders or the directors of the Debtors or Reorganized Debtors. On the
Effective Date, the appropriate officers of Reorganized Debtors are authorized
and directed to execute and to deliver the Plan Documents and any other
agreements, documents and instruments contemplated by the Plan or the Plan
Documents in the name and on behalf of Reorganized Debtors.
7.13 Revesting of Assets. Except as otherwise provided in the Plan, on
the Effective Date, the property of the Estates of the Debtors shall revest in
the Reorganized Debtors, including but not limited to Rights of Action and any
other claims or rights of action (whether known or unknown, and whether or not
identified in the Schedules or Disclosure Statement) that any of the Debtors or
Reorganized Debtors have asserted or may assert against any other Person. The
Reorganized Debtors may operate their businesses and may use, acquire, and
dispose of property without supervision by the Bankruptcy Court or the United
States Trustee and free of any restrictions of the Bankruptcy Code or the
Bankruptcy Rules. As of the Effective Date, all property of the Reorganized
Debtors shall be free and clear of all Claims, Liens, encumbrances, and other
interests of creditors and Holders of Interests, except as otherwise expressly
provided herein.
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7.14 Closing of Cases. Except as set forth below with respect to GCT,
and, under certain circumstances, GCX, all of the Cases will be closed as of the
Effective Date (and, to the extent necessary, this Plan shall be deemed a motion
requesting the closing of the Cases in accordance with this Section 7.13 of the
Plan), or as soon thereafter as reasonably practicable; provided further, that
GCT will move to close its case promptly when requested to do so by the
Post-Confirmation Committee after resolution of all Disputed Deduction Claims,
Disputed Class 6 Claims and Disputed Class 7 Claims; and (but only if Option B
is exercised by AMCE) the GCX Case will be closed promptly after resolution of
all Disputed Class 8 Claims. Upon the closing of the Case of a Reorganized
Debtor, all rights vested in such Reorganized Debtor under this Plan (including
but not limited to the rights to object to or otherwise be heard with respect to
Claims and requests for payment of Administrative Claims, to commence,
prosecute, recover on account of, or settle Rights of Action, and to enforce the
terms of this Plan and the Confirmation Order, including but not limited to the
Debtors' discharge and the injunction provisions of this Plan), shall vest in
each Reorganized Debtor that has not closed its Case. All fees due under
Section 1930(a)(6) of title 28 of the United States Code in respect of such
closed Cases shall be paid or reserved as set forth in Section 16.1 below.
7.15 Cancellation of Notes, Instruments, Common Stock, Preferred Stock
and Stock Options. On the Effective Date, except as otherwise provided in the
Plan: (i) the Domestic Bank Documents, the Harcourt Documents and the
Intercreditor Agreement; and (ii) all Interests in GCX shall be canceled, and
the obligations of the Debtors thereunder shall be discharged.
ARTICLE 8
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 Assumption Generally. Effective upon the Effective Date, each
executory contract and unexpired leases of the Debtors listed on the Schedule of
Assumed Contracts to be Filed and served by the Debtors at least twenty (20)
days prior to the Confirmation Hearing (including, without limitation, the
Harcourt Leases) (collectively, "Assumed Contracts and Leases" and,
individually, an "Assumed Contract or Lease") shall, at the election of AMCE, be
assumed by the Debtor in Possession which is party thereto or lessee thereunder
or shall be assumed and assigned to another Reorganized Debtor or to an AMCE
Affiliate (including,
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without limitation, as part of the Corporate Restructuring Program). In the
event that AMCE elects to have the Debtor in Possession which is a party to or
lessee under an Assumed Contract or Lease assume and assign such Assumed
Contract or Lease, notice of such proposed assumption and assignment shall be
given to the non-Debtor party no later than thirty (30) days prior to the
Confirmation Hearing. Absent such notice given with respect to an Assumed
Contract or Lease, AMCE shall be deemed to have elected to have such Assumed
Contract or Lease assumed, but not assumed and assigned, by the Debtor in
Possession which is party thereto, and, on the Effective Date, such Debtor, as
Reorganized Debtor, shall be deemed to have assumed such Assumed Contract or
Lease. The assumption, or assumption and assignment, of any Assumed Contracts or
Leases pursuant to the provisions of this Section 8.1 shall be only to the
extent that such Assumed Contracts or Leases constitute executory contracts and
unexpired leases within the meaning of section 365 of the Bankruptcy Code.
Inclusion of a matter in the Schedule of Assumed Contracts does not constitute
an admission by the Debtors, Debtors in Possession, Committee or AMCE that (i)
such matter is an executory contract or unexpired lease within the meaning of
section 365 of the Bankruptcy Code, (ii) the Debtors must assume such matter in
order to continue to receive or retain rights, benefits, or performance
thereunder or that any Claim under such matter must be paid or default cured if
it is not an executory contract or unexpired lease, or (iii) such matter is a
valid contract or lease. Any contract or lease assumed, or assumed and assigned,
pursuant to this Plan shall be assumed, or assumed and assigned, as previously
amended or otherwise modified by the parties thereto, whether before or after
the Petition Date. To the extent that the Bankruptcy Court or any other court of
competent jurisdiction determines, either before, on, or after the Effective
Date, that any agreement in the form of a lease of real or personal property
identified for assumption in this Article 8 of the Plan, is, in fact, a secured
transaction, the resulting secured indebtedness arising from such determination
(and any Deficiency Claims relating thereto) shall be treated in accordance with
the applicable section of the Plan. Each executory contract and unexpired lease
assumed or assumed and assigned pursuant to this Article 8 by any Debtor shall
revest in and be fully
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enforceable by the Debtor which assumed it, as Reorganized Debtor (in the case
of an assumed contract or lease), or by the assignee (in the case of an assumed
and assigned contract or lease) in accordance with its terms, except as modified
by the provisions of the Plan, any order of the Bankruptcy Court authorizing and
providing for its assumption or assumption and assignment, or applicable federal
law.
8.2 Assumption of Documents Supplementary to Executory Contracts. Each
executory contract and unexpired lease of the Debtors which is assumed pursuant
to the Plan shall include: (i) modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract
or unexpired lease, irrespective of whether such agreement, instrument, or other
document is listed in the Schedule of Assumed Contracts or in the Schedules; and
(ii) executory contracts appurtenant to the premises listed on such Schedule of
Assumed Contracts, Schedules, or other document, including all easements,
licenses, permits, rights, privileges, immunities, options, rights of first
refusal, powers, uses, usufructs, reciprocal easement agreements, vault, tunnel
or bridge agreements or franchises, and any other interest in real estate or
rights in rem to such premises, unless any of the foregoing agreements are
rejected in accordance with Section 8.6 of the Plan.
8.3 Cure Claim Amounts. The Schedule of Assumed Contracts specifies the
amount ("Cure Claim Amount"), if any, that the Debtors believe must be tendered
on the Effective Date, in order to provide cure and compensation in accordance
with sections 365(b)(1)(A) & (B) of the Bankruptcy Code with respect to each
matter listed on such Schedule. In the event that any party to a contract or
lease listed on the Schedule of Assumed Contracts contends that the Cure Claim
Amount does not correctly set forth the amount that must be paid under sections
365(b)(1)(A) and (B) in order to assume or assume and assign such contract or
lease (such amount being the "Required Cure Payment"), such party must file with
the Bankruptcy Court and serve upon counsel for the Debtors, the Committee, and
AMCE a written statement and an accompanying affidavit in support thereof
specifying the amounts allegedly owing as the Required Cure
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Payment no later than ten days before the commencement of the Confirmation
Hearing. Failure timely to file and serve such statement shall result in the
determination that the Reorganized Debtors' tender of the Cure Claim Amount, as
specified in the Schedule of Assumed Contracts, shall provide full cure and
compensation for any and all defaults and unpaid obligations under such assumed
or assumed and assigned executory contract or unexpired lease, and that no other
amounts are owing thereunder as of the Confirmation Date. The Debtors, the
Committee and AMCE reserve the right to respond to and challenge any objection
filed by any party to an executory contract or unexpired lease under this
Section. To the extent the Debtors, the Committee or AMCE disagree with any
objection filed by any party to an executory contract or unexpired lease under
this paragraph, any disputes as to the amount of the Required Cure Payment shall
be resolved by a Final Order, which Final Order specifying the Required Cure
Payment may be entered after the Effective Date. Each Required Cure Payment
shall be made on the later of (i) thirty (30) days after the Effective Date, or
as soon thereafter as is practicable, (ii) resolution by a Final Order of any
dispute with respect to the amount of such Required Cure Payment, or (iii) at
such time as may otherwise be agreed by the parties to any particular contracts
or leases.
8.4 Approval of Assumptions and Assumptions and Assignments. Subject to
the occurrence of the Effective Date, the Confirmation Order (except as
otherwise provided therein) shall constitute an order of the Bankruptcy Court
approving (a) the assumption or assumption and assignment of executory contracts
and unexpired leases by the Reorganized Debtors as provided for in this Plan
pursuant to section 365 of the Bankruptcy Code effective as of the Effective
Date, without penalty of any kind and (b) to the extent not subject to a timely
objection as set forth in Section 8.2 hereof, the Cure Claim Amounts set forth
in the Schedule of Assumed Contracts pursuant to section 365 of the Bankruptcy
Code, effective as of the Effective Date. The assumption or assumption and
assignment, as applicable, of any executory contract or unexpired lease under
the Plan shall be authorized notwithstanding the existence of any cross-default
provision or other provision in such contract or lease that conditions the right
of the
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Debtors or the obligations of the non-debtor parties on (i) the insolvency or
financial condition of any of the Debtors or any of their affiliates, or (ii)
performance under any other contract or agreement. Any breach, default, or
failure to perform under any contract or agreement that is not assumed, or
assumed and assigned, by the Debtors shall in no way constitute grounds to
terminate the Debtors', Reorganized Debtors', or any of their assignees' rights
under any contract or lease that is assumed, or assumed and assigned, under this
Plan, or excuse non-performance by the other party to such contract or lease, or
otherwise affect, modify, or reduce the rights of the Debtors, Reorganized
Debtors, or their assignees under such assumed, or assumed and assigned,
contract or lease.
8.5 Objections to Assumption or Assumption and Assignment of
Executory Contracts and Unexpired Leases.
8.5.1 Any party objecting to a Debtor's proposed assumption or
assumption and assignment of an executory contract or unexpired lease based on a
lack of adequate assurance of future performance or on any ground other than the
adequacy of the Cure Claim Amount set forth in the Schedule of Assumed
Contracts, shall file and serve a written objection to the assumption of such
contract or lease within the same deadline and in the same manner established
for filing objections to Confirmation of this Plan. Failure to file and serve an
objection within the time period set forth above shall constitute the non-Debtor
party's consent to the assumption and revestment or assumption and assignment of
those contracts and leases, including an acknowledgment that the proposed
assumption or assumption and assignment satisfies all requirements of Bankruptcy
Code section 365 (other than as to the Required Cure Payment).
8.5.2 If any party files an objection to assumption or
assumption and assignment based on any ground other than the adequacy of the
Cure Claim Amount set forth in the Schedule of Assumed Contracts, and the
Bankruptcy Court ultimately determines that the applicable Debtor cannot assume
or assume and assign the executory contract or unexpired lease or that the
applicable Debtor or assignee cannot provide adequate assurance of future
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performance as proposed or in any modified proposal submitted by the Debtors or
Reorganized Debtors or proposed assignee, then the unexpired lease or executory
contract shall automatically thereupon be deemed to have been excluded from the
Schedule of Assumed Contracts and shall be rejected pursuant to Section 8.6
hereof, subject to any rights AMCE may have under the AMCE Letter of Intent or
the AMCE Acquisition Agreement based on such rejection.
8.5.3 To the extent that any objections to the Cure Claim
Amounts set forth in the Schedule of Assumed Contracts are timely filed and
served and such objections are not resolved by the Debtors and the objecting
parties, the Bankruptcy Court shall resolve such disputes at a hearing to be
held at a date to be determined by the Bankruptcy Court at the Confirmation
Hearing. The resolution of such disputes shall not affect the Debtors'
assumption or assumption and assignment of the contracts or leases that are
subject of such dispute but rather shall affect only the amount of the Required
Cure Payment that the Debtors must pay in order to assume or assume and assign
such contract or lease.
8.6 Executory Contracts and Unexpired Leases to be Rejected.
8.6.1 Effective as of, and subject to the occurrence of, the
Effective Date, all executory contracts and unexpired leases that exist between
the Debtors and any other entity that have not previously been assumed or
rejected and that are not listed on the Schedule of Assumed Contracts including,
but not limited to, all executory contracts and unexpired leases listed on the
Schedule of Rejected Contracts to be Filed and Served by the Debtors at least
twenty (20) days prior to the commencement of the Confirmation Hearing shall be
rejected as of the Effective Date. The Debtors may amend the Schedule of Assumed
Contracts with the consent of AMCE at any time prior to the Confirmation Hearing
by Filing such amendment with the Bankruptcy Court and serving it on parties
directly affected by the amendment, in which event the Schedule of Assumed
Contracts, as so amended, shall constitute the "Schedule of Assumed Contracts"
for purposes of the Plan.
8.6.2 The Confirmation Order shall constitute an order of the
Bankruptcy Court approving such rejections on the Confirmation Date, pursuant to
section 365 of the Bankruptcy
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Code, effective as of the Effective Date. To the extent that a matter that
provides the Debtors with property rights does not constitute an executory
contract or unexpired lease, rejection shall not constitute an abandonment by
the Debtors of such property rights. Any non-Debtor party to an executory
contract or unexpired lease identified for rejection as provided herein may,
within the same deadline and in the same manner established for filing
objections to Confirmation, file any objection thereto. Failure by any such
non-Debtor party to file any such objection within the time period set forth
above shall constitute a consent to the rejection by such non-Debtor party.
8.7 Bar Date for Rejection Damages. If the rejection of an executory
contract or unexpired lease pursuant to Section 8.5 above gives rise to a Claim
by the other party or parties to such contract or lease, such Claim, to the
extent that it is timely filed and is an Allowed Secured Claim, shall be
classified in Class 2, and to the extent that it is timely filed and is an
Allowed Unsecured Claim, shall be classified in Class 6; provided, however, that
in either event any Claim arising out of the rejection of an executory contract
or unexpired lease shall be forever barred and shall not be enforceable against
the Debtors, the Reorganized Debtors, their Affiliates, their successors or
estates, or their properties, and shall not be entitled to any distribution
under the Plan, unless a proof of claim for such Claim is filed and served on
the Debtors or Reorganized Debtors within thirty (30) days after the earlier of
(a) the date of entry of the first order of the Bankruptcy Court approving the
rejection of the executory contract or unexpired lease, or (b) the Confirmation
Date.
8.8 Indemnification and Certain Other Rights of Directors, Officers and
Employees. Notwithstanding any other provision of the Plan, the obligations of
the Debtors or Reorganized Debtors to indemnify any Person or Entity serving at
any time on or prior to the Effective Date as one of their directors, officers
or employees by reason of such Person's or Entity's service in such capacity, or
as a director, officer or employee of any other corporation or legal entity, to
the extent provided in any certificate of incorporation, by-law, or other
similar constituent document or by statutory law or written agreement with the
Debtors, (collectively, the "Indemnity Obligations") shall be limited to the
extent of coverage therefor under GCX's existing Directors
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and Officers Insurance Policy (the "D&O Policy"), as augmented by any "tail
coverage" (the "Tail Coverage") purchased with respect to such D&O Policy on or
before the Effective Date, the premium cost for which shall be funded by AMCE in
an amount not to exceed $350,000. In no event will the cost of the Tail Coverage
be funded or paid for by the Debtors and the amount of the premium relating to
the Tail Coverage will not be deemed to be a Deduction Claim. In addition, the
rights of the officers and directors of GCX who are serving as such as of
December 6, 2001, under the existing by-laws of GCX shall be preserved against
Reorganized GCX and Reorganized GCT to the extent of their right to advancement
of legal fees and expenses under such by-laws up to an aggregate maximum amount
of $250,000 for all individuals, claims and occurrences (subject to
replenishment by any reimbursement received by Reorganized GCX or Reorganized
GCT from any source). Except to the extent specifically preserved by this
Section 8.8, all Indemnity Obligations shall be fully and completely discharged
as of the Effective Date and shall be of no further force and effect following
the Effective Date.
8.9 GCT Programs. Without acknowledging any legal obligation to do so,
the Reorganized Debtors intend to honor all gift certificates, VIP Program
Vouchers and discount tickets issued by the Debtors for use in domestic
theaters, to the extent such were issued in accordance with applicable law and
are otherwise valid. Notwithstanding the foregoing, neither AMCE nor the
Reorganized Debtors are assuming any liability under the Plan with respect to
the issuance of such gift certificates, VIP Program Vouchers or discount
tickets.
8.10 Certain Compensation and Benefit Programs. The Reorganized
Debtors will honor the Debtors' obligations under the Debtors' court-approved
employee retention programs as follows: (a) December 28, 2000 Preliminary Order
on Debtors' Motion to (i) Assume Executory Contracts with Certain Employees;
(ii) Make Certain Severance Payments in the Ordinary Course of Business; and
(iii) Honor Retention Obligations in the Ordinary Course of Business; (b) March
16, 2001 Order Authorizing the Debtors to Assume Senior Executive Agreements, as
Amended; (c) March 16, 2001 Order Authorizing Debtors to Amend Exhibit C to the
Motion to (i) Assume Executory Contracts with Certain Employees; (ii) Make
Certain
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Severance Payments in the Ordinary Course of Business; and (iii) Honor Retention
Obligations in the Ordinary Course of Business and (d) October 16, 2001 Order
Authorizing Debtors to Extend Enhanced Severance Benefits.
ARTICLE 9
DISTRIBUTIONS
9.1 Distributions to Distribution Agent. In the event that the
Reorganized Debtors do not serve as the Distribution Agent for distributions to
be made to holders of Claims other than Class 6 Claim the Reorganized Debtors or
AMCE, as the case may be, shall transmit or cause to be transmitted to the
Distribution Agent sufficient Cash and New AMCE Securities to enable the
Distribution Agent to make all distributions under this Plan other than the
distributions to be made to holders of Class 6 Claims. No later than ten (10)
days prior to the First Class 6 Distribution Date, AMCE shall distribute to the
Class 6 Distribution Agent New AMCE Stock having a Plan Value equal to that
which would be required if no Newly Rejected Leases were rejected, calculated in
accordance with Section 7.3, above. At such time as the Allowed Amount of all
Claims arising out of the rejection of the Newly Rejected Leases has been
established, AMCE shall transmit to the Class 6 Distribution Agent additional
New AMCE Stock having a Plan Value equal to the amount by which the total Plan
Value of the New AMCE Stock to which Class 6 is entitled under the terms of the
Plan, exceeds the Plan Value of all New AMCE Stock previously distributed to the
Class 6 Distribution Agent.
9.2 Distributions.
9.2.1 Distribution Agent. The Distribution Agent shall be
responsible for all distributions required to be made by the Reorganized Debtors
under the Plan, except for distributions to Holders of Class 6 Claims.
Reorganized GCX or Reorganized GCT may act as the Distribution Agent. The
Post-Confirmation Committee shall select the Class 6 Distribution Agent, which
may be the trustee of the Unsecured Stock Trust, who shall be responsible for
all distributions required to be made to Holders of Class 6 Claims. The
Distribution Agent and Class 6 Distribution Agent may employ one or more
sub-agents on such terms and conditions as
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they may agree in their discretion. Reorganized GCX or Reorganized GCT and the
trustee of the Unsecured Stock Trust, as applicable, shall not be required to
provide any bond in connection with the making of any distributions pursuant to
the Plan. However, if the Distribution Agent is any Person other than
Reorganized GCX or Reorganized GCT or the trustee of the Unsecured Stock Trust,
such Person shall be required to provide such bond on terms and in an amount to
be approved by the Bankruptcy Court. All costs and expenses incurred in
connection with distributions and administration of the Plan other than with
respect to Class 6 thereof, including, without limitation, the fees and
expenses, if any, of the Distribution Agent and professionals and sub-agents
employed by the Distribution Agent, shall be borne by Reorganized GCX or
Reorganized GCT. All Class 6 Distribution Expenses shall be satisfied from the
sale by the Class 6 Distribution Agent, as and when necessary, of the New AMCE
Stock and AMCE Stock (or from cash in lieu thereof paid by Harcourt) otherwise
distributable pursuant to the Plan to the Holders of Allowed Class 6 Claims.
9.2.2 Dates of Distributions. Any distribution required to be
made on the Effective Date shall be deemed timely if made as soon as practicable
after such date and, in any event, within thirty (30) days after such date. Any
distribution required to be made upon a Claim becoming an Allowed Claim (other
than an Allowed Class 6 Claim ) or Interest becoming an Allowed Interest shall
be deemed timely if made as soon as practicable after the Claim or Interest has
become Allowed. Distributions to Holders of Allowed Class 6 Claims shall be made
on one or more Class 6 Distribution Dates. The Class 6 Distribution Agent shall
only make distributions to the Holders of Allowed Class 6 Claims after
establishing an adequate reserve (the "Class 6 Expense Reserve") to satisfy the
actual and anticipated Class 6 Distribution Expenses.
9.2.3 Manner of Distribution. Monetary distributions may be
made in Cash, by wire transfer or by a check drawn on a domestic bank.
Distribution of New AMCE Securities and New GCC Investments Preferred Stock
shall be made by the issuance and delivery of such securities.
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9.2.4 Limitation on Liability. Neither the Debtors, the
Reorganized Debtors, the Committee, the Post-Confirmation Committee, AMCE nor
any of their respective employees, officers, agents, or professional or
Affiliates shall be liable for (i) any acts or omissions (except for gross
negligence or willful misconduct) in connection with implementing the
distribution provisions of this Plan and the making or withholding of
distributions pursuant to the Plan, or (ii) any change in the value of
distributions made pursuant to the Plan resulting from any delays in making such
distributions in accordance with the Plan's terms (including but not limited to
any delays caused by the resolution of Disputed Claims or the determination of
Deduction Claims).
9.3 Old Instruments and Securities.
9.3.1 Surrender and Cancellation of Instruments and
Securities. As a condition to receiving any distribution pursuant to the Plan,
each Person holding any stock, note or other instrument or security
(collectively "Instruments or Securities" and individually an "Instrument or
Security") evidencing an existing Claim or Interest against or in a Debtor must
surrender such Instrument or Security to the Distribution Agent or Class 6
Distribution Agent, as applicable.
9.3.2 Rights of Persons Holding Old Instruments and
Securities. As of the Effective Date, and whether or not surrendered by the
holder thereof: (a) all Existing GCX Common Stock and all other Instruments and
Securities evidencing any Claims or Interests (except for the Common Stock of
the Debtors other than GCX) shall be deemed automatically cancelled and deemed
void and of no further force or effect, without any further action on the part
of any person, and any Claims or Interests under or evidenced by such Existing
GCX Common Stock or other Instruments or Securities (other than Common Stock of
the Debtors other than GCX) shall be deemed discharged. Until the Persons
holding, or having a beneficial interest in, such Instruments or Securities as
of the Record Date or their lawful successors and assigns surrender such
Instruments or Securities, or otherwise comply with Section 9.4.1 of the Plan,
such Persons shall have no rights (and such Instruments or Securities shall
evidence no rights) except to surrender such Instruments or Securities, or
otherwise comply with such Section, and to receive in exchange therefor the
distributions to which such Persons are entitled
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pursuant to the provisions of Article 5 of the Plan. The obligations of the
Debtors under any agreements relating to such Instruments and Securities shall
be deemed rejected, cancelled and terminated as of the Petition Date. All
options to purchase any stock of GCX shall be deemed rejected, cancelled and
terminated as of the Petition Date.
9.3.3 Cancellation of Liens. Except as otherwise provided in
the Plan, any Lien securing any Secured Claim shall be deemed released and
discharged, and the Person holding such Secured Claim shall be authorized and
directed to release any collateral or other property of the Debtors (including,
without limitation, any cash collateral) held by such Person and to take such
actions as may be requested by the Reorganized Debtors to evidence the release
of such Lien, including, without limitation, the execution, delivery and filing
or recording of such releases as may be requested by Reorganized Debtors at the
sole expense of Reorganized Debtors.
9.4 De Minimis Distributions and Fractional Shares. No Cash payment of
less than ten dollars ($10) shall be made by the Reorganized Debtors, the
Distribution Agent or the Class 6 Distribution Agent to any holder of Claims
unless a request therefor is made in writing to the Reorganized Debtors or the
Distribution Agent or, in the case of an Allowed Class 6 Claim, the Class 6
Distribution Agent. No fractional shares of New AMCE Common Stock shall be
distributed; any entity that otherwise would be entitled to receive a fractional
share distribution under this Plan shall instead receive an amount of shares
rounded down to the next whole number. In lieu of issuing any New AMCE Note in a
denomination of less than $1,000, AMCE may elect to pay, to the Person which
would otherwise have been entitled to receive such New AMCE Note, Cash in the
principal amount of such New AMCE Note that would otherwise have been issued.
Whenever payment of a fraction of a cent would otherwise be called for, the
actual payment shall reflect a rounding down of such fraction to the nearest
whole cent. Any cash, securities or other property that is not distributed as a
consequence of this section shall, after the last distribution on account of
Allowed Claims in the applicable Class, be treated as "Unclaimed Property" under
the Plan.
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9.5 Compliance with Tax Requirements. The Distribution Agent and Class
6 Distribution Agent shall comply with all withholding and reporting
requirements imposed by federal, state or local taxing authorities in connection
with making distributions pursuant to the Plan. 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) or withholding is required, the
Distribution Agent or Class 6 Distribution Agent, as applicable, shall file such
information return with the Internal Revenue Service and provide any required
statements in connection therewith to the recipients of such distribution, or
effect any such withholding and deposit all moneys so withheld to the extent
required by law. Notwithstanding any other provision of this Plan, the
Distribution Agent or Class 6 Distribution Agent, as applicable, by written
demand may require any Holder of an Allowed Administrative Claim, an Allowed
Claim, or other recipient of a distribution under this Plan to provide the
Distribution Agent or Class 6 Distribution Agent with such information as is
reasonably necessary for the Distribution Agent or Class 6 Distribution Agent to
comply with all applicable withholding and reporting requirements. Such
information, if demanded by the Distribution Agent or Class 6 Distribution
Agent, shall be provided to the Distribution Agent or Class 6 Distribution Agent
in advance of, and as a condition to, receiving any distribution under this
Plan. In addition, 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, the Distribution Agent or Class
6 Distribution Agent, as applicable, may, at its sole option, withhold the
amount required and distribute the balance to such Person or decline to make
such distribution until the information is received.
9.6 Delivery of Distributions. Except as provided in Section 9.7 with
respect to Unclaimed Property, distributions to holders of Allowed Claims and
Allowed Administrative Claims shall be distributed by mail as follows: (1) with
respect to each Holder of an Allowed Claim that has filed a proof of claim, at
the address for such holder as maintained by the official claims agent for the
Debtors; (2) with respect to each holder of an Allowed Claim that has not filed
a proof of claim, at the address reflected on the Schedules filed by the
Debtors, provided,
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however, that if the Debtors, the Reorganized Debtors, the Distribution Agent or
Class 6 Distribution Agent, as applicable, have received a written notice of a
change of address for such holder, the address set forth in such notice shall be
used; or (3) with respect to each Holder of an Allowed Administrative Claim, at
such address as the holder may specify in writing.
9.7 Undeliverable Distributions. If the distribution of Cash, New AMCE
Securities or New GCC Investments Preferred Stock to the Holder of any Allowed
Claim, Allowed Interest or Allowed Administrative Claim is returned to the
Reorganized Debtors or the Distribution Agent or Class 6 Distribution Agent as
undeliverable (any such distribution being hereinafter referred to as "Unclaimed
Property"), no further distribution shall be made to such Holder unless and
until the Reorganized Debtors, the Distribution Agent or the Class 6
Distribution Agent, as applicable, is notified in writing of such Holder's then
current address. Subject to the remainder of this Section and Sections 9.8,
Unclaimed Property shall remain in the possession of the Reorganized Debtors or
the Distribution Agent or Class 6 Distribution Agent pursuant to this Section
9.7, and shall be set aside and (in the case of Cash) held in a segregated
interest-bearing account (as to Cash Unclaimed Property)to be maintained by the
Distribution Agent or Class 6 Distribution Agent, as applicable, until such time
as the subject distribution becomes deliverable. Nothing contained in the Plan
shall require the Reorganized Debtors, Distribution Agent or Class 6
Distribution Agent to attempt to locate such Person.
9.8 Disposition of Unclaimed Property. If the Person entitled thereto
notifies the Reorganized Debtors, Distribution Agent, or Class 6 Distribution
Agent, as applicable, of such Person's claim to the distribution of Unclaimed
Property within nine (9) months following the Effective Date, the Unclaimed
Property distributable to such Person, together with any interest or dividends
earned thereon, shall be paid or distributed to such Person on the next
Distribution Date. Any Holder of an Allowed Claim or Allowed Administrative
Claim that does not assert a claim in writing for Unclaimed Property held by the
Reorganized Debtors, the Distribution Agent or Class 6 Distribution Agent within
nine (9) months after the Effective Date shall no longer have any claim to or
interest in such Unclaimed Property, and shall be forever barred
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from receiving any distributions under this Plan or otherwise from the
Reorganized Debtors, the Distribution Agent or the Class 6 Distribution Agent.
In such cases any property held for distribution on account of such Claims or
Administrative Claims other than New AMCE Stock held for distribution to Class 6
shall be retained by the Reorganized Debtors or AMCE as follows: pursuant to
Bankruptcy Code section 347(b), any undistributed Cash shall be the property of
the Reorganized Debtors, any undistributed New AMCE Notes or New AMCE Stock
shall be the property of AMCE (and may be cancelled by AMCE), free from any
restrictions thereon, and such undistributed Cash or securities shall not be
subject to the unclaimed property or escheat laws of any State or other
governmental unit. If such Unclaimed Property consists of any distribution for
any Persons holding Class 6 Claims, such Distribution shall become the property
of and be distributed to the other Persons holding Allowed Class 6 Claims on a
Pro Rata basis.
9.9 Voting of Undelivered New AMCE Common Stock. In connection with any
election or other vote by the holders of AMCE Stock, any shares of New AMCE
Stock that have not been delivered pursuant to this Plan (including but not
limited to any shares held by the trustee of the Unsecured Stock Trust), shall
be deemed voted in the same proportion as those shares of AMCE Stock (whether or
not it is New AMCE Stock) that have been voted with respect to the particular
election or other vote.
9.10 Setoff. The Distribution Agent and Class 6 Distribution Agent may,
but are not required to, set off against any Claim and the distribution to be
made pursuant to the Plan in respect of such Claim, any claims of any nature
which Debtors may have had against the holder of such Claim. Neither the failure
by the Debtors, the Distribution Agent or Class 6 Distribution Agent to effect
such a setoff nor the allowance of any Claim shall constitute a waiver or a
release of any claim which the Debtors or Reorganized Debtors may have against
the Holder of a Claim.
9.11 Record Date. Interests represented by Existing GCX Common Stock
must be of record as of the Record Date to be eligible for the treatment of
Class 10 Interests under the Plan. As of the close of business on the Record
Date, the transfer ledgers for the Existing GCX
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Common Stock as maintained by, or on behalf of, GCX shall be closed and there
shall be no further registrations or other changes in the holders of record of
such securities on such transfer ledgers. Reorganized GCX, and the transfer
agents or registrars, as the case may be, shall have no obligation to recognize
any transfer of Existing GCX Common Stock occurring thereafter.
ARTICLE 10
LITIGATION AND OBJECTIONS TO CLAIMS
10.1 Preservation of Rights of Action and Defenses. Except to the
extent such Rights of Action and defenses are expressly and specifically
released or modified in connection with the Plan, (i) any and all Rights of
Action and defenses accruing to the Debtors or their Estates (including, without
limitation, Avoidance Rights of Action) shall remain assets of and vest in the
Reorganized Debtors, which shall be the representative of the Estate within the
meaning of 11 U.S.C. Section 1123(b)(3), whether or not litigation relating
thereto is pending on the Effective Date, and whether or not any such Rights of
Action or defenses have been Scheduled or otherwise listed or referred to in
this Plan, the Disclosure Statement, or any other document filed with the
Bankruptcy Court, and (ii) except to the limited extent provided in Section
10.2, neither the Debtors nor the Reorganized Debtors waive, relinquish, or
abandon (nor shall they be estopped or otherwise precluded from asserting) any
Right of Action or defense that constitutes property of the Debtors' estates:
(a) whether or not such Right of Action or defense has been listed or referred
to in the Schedules, this Plan, the Disclosure Statement, or any other document
filed with the Bankruptcy Court, (b) whether or not such Right of Action or
defense is currently known to the Debtors, and (c) whether or not a defendant in
any litigation relating to such Right of Action or defense filed a proof of
claim in the Chapter 11 Cases, filed a notice of appearance or any other
pleading or notice in the Chapter 11 Cases, voted for or against this Plan, or
received or retained any consideration under this Plan. Without in any manner
limiting the scope of the foregoing, notwithstanding any otherwise applicable
principle of law or equity, including, without limitation, any principles of
judicial estoppel, res judicata, collateral estoppel, issue preclusion, or any
similar doctrine, the failure to list, disclose, describe, identify, or refer to
a
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Right of Action or defense, or potential Right of Action or defense, in the
Debtors' Schedules, this Plan, the Disclosure Statement, or any other document
filed with the Bankruptcy Court shall in no manner waive, eliminate, modify,
release, or alter the Reorganized Debtors' right to commence, prosecute, defend
against, settle, and realize upon any Rights of Action or defenses that any of
the Debtors or Reorganized Debtors have or may have as of the Confirmation Date.
The Reorganized Debtors may commence, prosecute, defend against, recover on
account of, and settle all Rights of Action and defenses in their sole
discretion in accordance with what is in the best interests, and for the
benefit, of the Reorganized Debtors.
10.2 Objections to Claims and Other Rights of Action. Notwithstanding
the foregoing (and except for objections that may be filed by Harcourt with
respect to the Identified Leases at any time prior to the Objection Deadline),
from and after the Effective Date, the Post-Confirmation Committee shall act as
the exclusive estate representative within the meaning of 11 U.S.C. Section
1123(b)(3) for the sole and limited purpose of objecting to the allowance of any
Class 6 Claim. Notwithstanding the foregoing, at the written election of AMCE
made before the Objection Deadline, the Class 6 Claim of John Berylson in an
amount of $2,327,225.71 shall be Allowed in full as a Class 6 Claim, and no
objection shall be filed to such Claim to the extent of such amount. The claim
filed by Michael A. Greeley in the approximate amount of $2.1 million (the
"Greeley Claim") shall be settled on the following terms and conditions; (i) the
Greeley Claim shall be allowed as a Class 6 unsecured claim in the amount of
$900,000 and disallowed for any amount in excess of $900,000 (and any other
claims filed by Greeley shall be disallowed); (ii) the Debtors and Greeley shall
release one another from any and all other claims, including, without
limitation, any claims of the Estates against Greeley under section 547 of the
Bankruptcy Code (which release shall be binding upon the Reorganized Debtors and
any successors); and (iii) Greeley will not object to the treatment of the
Greeley Claim as a Class 6 claim or to confirmation of the Plan. The
Post-Confirmation Committee shall also have the non-exclusive power and
authority to object to the Allowance of any Deduction Claims. The
Post-Confirmation Committee shall be vested with and have exclusive standing to
assert all Rights of Action that may be asserted as a defense or setoff to the
allowance of any Class 6 Claim or Deduction Claim, including without limitation
Avoidance Rights of Action and any defenses that may be asserted under 11 U.S.C.
Section 502(d), for the limited purpose of seeking disallowance of any Class 6
Claim or Deduction Claim, but may not seek any affirmative recovery against any
Person with respect to any Rights of Action without the consent of Reorganized
GCX (and any such affirmative recovery shall be property of the Reorganized
Debtors); and, subject to the foregoing limitations, the Post-Confirmation
Committee may assert, prosecute, settle, release, sell, assign, otherwise
transfer or compromise objections to Class 6 Claims in its sole discretion and
may settle or
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otherwise comprise any Deduction Claims with the consent of the Reorganized
Debtors, not to be unreasonably withheld. Notwithstanding the foregoing,
Reorganized Debtors shall have the option to release any and all Claims arising
out of notes executed in their favor by John Berylson and Demos Kouvaris. Unless
another date is established by order of the Bankruptcy Court or the Plan, any
objection to a Claim shall be filed with the Bankruptcy Court and served on the
Person holding such Claim within one hundred and twenty (120) days after the
later of the Effective Date or the filing of a proof of claim for such Claim
(the "Objection Deadline"). The Post-Confirmation Committee shall have the right
to petition the Bankruptcy Court, without notice or a hearing, other than notice
and an opportunity to be heard to Reorganized GCX and AMCE, for an extension of
such date if a complete review of all Claims cannot be completed by such date.
10.3 Treatment of Disputed Claims.
10.3.1 No Distribution Pending Allowance. If any portion of a
Claim is a Disputed Claim, no payment or distribution provided for under the
Plan shall be made on account of the portion of such Claim that is a Disputed
Claim unless and until such Disputed Claim becomes an Allowed Claim.
10.3.2 Distribution After Allowance. On the next Distribution
Date following the date on which a Disputed Claim becomes an Allowed Claim, the
Distribution Agent or Class 6 Distribution Agent, as applicable, shall
distribute to the Person holding such Claim any Cash or New AMCE Securities that
would have been distributable to such Person if such Claim had been an Allowed
Claim on the Effective Date.
10.3.3 Reserves for Disputed Claims. In the event that
Disputed Claims are pending, the Distribution Agent or Class 6 Distribution
Agent, as applicable, shall establish reasonable reserves for such Disputed
Claims and the aggregate property to be distributed to holders of Allowed Claims
on any Distribution Date shall be adjusted to reflect such reserves. The
Distribution Agent or Class 6 Distribution Agent may move the Bankruptcy Court
for approval of its determination to reserve certain amounts. AMCE shall have no
liability or obligation with respect to the adequacy of such reserves and,
except to the extent that
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Reorganized GCX serves as Distribution Agent, Reorganized GCX shall have no
liability or obligation with respect to the adequacy of any such reserves.
ARTICLE 11
EFFECTS OF PLAN CONFIRMATION
11.1 Discharge of Debtors. The rights afforded in the Plan and the
treatment of all Claims and Interests therein shall be in exchange for, and in
complete satisfaction, discharge, and release of, any and all Claims and
Interests of any nature whatsoever, including any interest, fees, or penalties
accrued on or relating to such Claims whether before or after the Petition Date,
against the Debtors and the Debtors in Possession, or any of their assets or
properties. Except as otherwise provided herein, (i) on the Effective Date, the
Debtors and Reorganized Debtors shall be deemed discharged and released to the
fullest extent permitted by section 1141 of the Bankruptcy Code from all Claims
and Interests, including, but not limited to, demands, liabilities, Claims, and
Interests that arose before the Confirmation Date and all debts of the kind
specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code, whether
or not: (a) a proof of claim or proof of interest based on such Claim, debt or
Interest is filed or deemed filed pursuant to section 501 of the Bankruptcy
Code, (b) a Claim or Interest based on such debt or interest is allowed pursuant
to section 502 of the Bankruptcy Code, or (c) the holder of a Claim or Interest
based on such debt or interest has accepted the Plan or has made an appearance
in the Cases; and (ii) all persons and entities (including, but not limited to,
States and other governmental units) shall be deemed precluded from asserting
against the Reorganized Debtors, their successors, or their assets or properties
any other or further Claims or Interests based upon any act or omission,
transaction, or other activity of any kind or nature that occurred prior to the
Confirmation Date. The Confirmation Order shall act as a discharge of any and
all Claims against and all debts and liabilities of the Debtors, as provided in
sections 524 and 1141 of the Bankruptcy Code, and such discharge shall void any
judgment against the Debtors at any time obtained to the extent that it relates
to a Claim discharged.
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11.2 Injunction. Except as otherwise expressly provided in the Plan,
the documents executed pursuant to the Plan, or the Confirmation Order, on and
after the Effective Date, all persons and entities who have held, currently
hold, or may hold a debt, Claim, or Interest discharged pursuant to the terms of
the Plan (including but not limited to States and other governmental units, and
any State official, employee, or other entity acting in an individual or
official capacity on behalf of any State or other governmental units) shall be
deemed permanently enjoined from taking any of the following actions on account
of any such discharged debt, Claim, or Interest: (1) commencing or continuing in
any manner any action or other proceeding against the Debtors, the Reorganized
Debtors, their successors, or their property; (2) enforcing, attaching,
executing, collecting, or recovering in any manner any judgment, award, decree,
or order against the Debtors, the Reorganized Debtors, their successors, or
their property; (3) creating, perfecting, or enforcing any lien or encumbrance
against the Debtors, the Reorganized Debtors, their successors, or their
property; (4) asserting any set off, right of subrogation, or recoupment of any
kind against any obligation due the Debtors, the Reorganized Debtors, their
successors, or their property; and (5) commencing or continuing any action, in
any manner, in any place that does not comply with or is inconsistent with the
provisions of this Plan. Any person or entity injured by any willful violation
of such injunction shall recover actual damages, including costs and attorneys'
fees, and, in appropriate circumstances, may recover punitive damages from the
willful violator.
ARTICLE 12
RELEASES, INJUNCTIONS AND LIMITATION OF LIABILITY
12.1 Release by Debtors.
12.1.1 From and after the Effective Date, AMCE (and its
officers, directors, employees and other agents, advisors, attorneys and
accountants, successors or assigns) (collectively, the "Releasees") shall be
released by the Debtors, Debtors in Possession and their respective direct and
indirect subsidiaries from any and all Rights of Action, including without
limitation all claims (as defined in Section 101(5) of the Bankruptcy Code),
obligations, suits,
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judgments, damages, rights, causes of action and liabilities whatsoever, whether
known or unknown, foreseen or unforeseen, contingent or fixed, liquidated or
unliquidated, existing or hereafter arising, in law, equity or otherwise, that
any Debtor, Debtor in Possession or any of their respective direct or indirect
subsidiaries is entitled to assert in its own right or on behalf of the Holder
of any Claim or Interest or other Person, based in whole or in part upon any act
or omission, transaction, agreement, event or other occurrence taking place on
or prior to the Effective Date.
12.1.2 From and after the Effective Date, the Holders of
Allowed Class 6 Claims and Allowed Class 9 Claims shall be released by the
Debtors and their respective subsidiaries from any and all Avoidance Rights of
Action, known or unknown, that any Debtor or any of their respective
subsidiaries is entitled to assert in its own right or on behalf of the Holder
of any Claim or Interest or other Person, based in whole or in part upon any act
or omission, transaction, agreement, event or other occurrence taking place on
or prior to the Petition Date, except to the extent such Avoidance Rights of
Action may be asserted as a defense or offset to the allowance of any Class 6
Claim or as grounds for disallowance or subordination under 11 U.S.C. Section
502(d) or otherwise of any Class 6 Claim.
12.2 Certain Mutual Releases. On and after the Effective Date, each of:
(i) the Debtors, the Reorganized Debtors, their subsidiaries and their
Affiliates; on the one hand; and (ii) each of the officers, directors and
employees of the foregoing who were such as of December 6, 2001, on the other
hand, for good and valuable consideration, shall automatically be deemed to have
released one another unconditionally and forever from any and all Claims,
obligations, rights, suits, damages, causes of action, Avoidance Rights of
Action, remedies and liabilities whatsoever, whether liquidated, or
unliquidated, fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, existing or hereafter arising, in law, equity or
otherwise, that any of the foregoing entities would have been legally entitled
to assert in their own right, whether individually or collectively, based in
whole or in part upon any act or omission, transaction, agreement, event or
other occurrence taking place on or before the
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Effective Date, relating in any way to the Debtors, the Reorganized Debtors, the
Cases, the Plan, the Disclosure Statement, or any related agreements,
instruments or other documents, except for Claims arising: (i) under Sections
8.8 or 8.10 of the Plan; or (ii) arising after the Petition Date in the ordinary
course of business and constituting Administrative Claims. In furtherance of the
foregoing, the Confirmation Order will constitute an injunction permanently
enjoining the commencement or prosecution by any entity, whether directly,
derivatively, or otherwise, of any Claim, demand, liability, obligation, debt,
right, cause of action, interest, remedy released or to be released pursuant to
the Plan, against the foregoing Persons and entities. Any officer, director or
employee who objects to granting the release provided for in this Section 12.2
may, by giving written notice of such objection prior to the Confirmation Date,
elect to be excluded from the operation of this Section 12.2, in which event
such officer or director shall neither be released, nor be deemed to have
granted a release, under this Section 12.2.
12.3 Injunctions and Stays. Unless otherwise provided in the Plan or
the Confirmation Order, all injunctions and stays provided for in the Cases
pursuant to Sections 105 and 362 of the Bankruptcy Code or otherwise in effect
on the Confirmation Date, shall remain in full force and effect until the
Effective Date. From and after the Effective Date, all Persons are permanently
enjoined from, and restrained against, commencing or continuing in any court any
suit, action or other proceeding, or otherwise asserting any Claim or Interest,
seeking to hold (a) any of the Reorganized Debtors, (b) the property of any of
the Reorganized Debtors, or (c) any of the Persons released under this Plan (or
their respective officers, directors, employees and other agents, advisors,
attorneys and accountants, successors or assigns) liable for any claim,
obligation, right, interest, debt or liability that has been discharged or
released pursuant to Sections 11.1, 12.1 or 12.3 of the Plan. Each Person
holding a claim or interest jointly against a Debtor and a non-Debtor subsidiary
of GCX, by virtue of the acceptance by such Person of any Distribution or
consideration given under the Plan, is permanently enjoined from, and restrained
against, commencing or continuing in any court any suit, action or other
proceeding, or
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otherwise asserting any claim or interest, seeking to hold a non-Debtor
subsidiary of GCX liable for any claims obligation, right, interest, debt or
liability.
12.4 No Liability for Solicitation or Participation. As specified in
section 1125(e) of the Bankruptcy Code, entities that solicit acceptances or
rejections of the Plan and/or that participate in the offer, issuance, sale, or
purchase of securities offered or sold under the Plan, in good faith and in
compliance with the applicable provisions of the Bankruptcy Code, shall not be
liable, on account of such solicitation or participation, for violation of any
applicable law, rule, or regulation governing the solicitation of acceptances or
rejections of the Plan or the offer, issuance, sale, or purchase of securities.
12.5 Limitation of Liability. Effective as of the Effective Date, none
of the Debtors, Reorganized Debtors, the Committee, AMCE, the GECC Group or
Harcourt nor any of their respective members, officers, directors, employees and
other agents, advisors, attorneys and accountants shall have or incur any
liability to any Holder of any Claim or Interest or any other Person for any act
or omission in connection with or arising out of the negotiation, preparation
and pursuit of confirmation of the Plan, the Disclosure Statement, the
consummation of the Plan, the administration of the Plan, the Cases or the
property to be distributed under the Plan except for (a) liability based on the
timely performance of obligations under the Plan; and (b) liability based on
willful misconduct or gross negligence as finally determined by the Bankruptcy
Court. Each of the Debtors, the Reorganized Debtors, the Committee, AMCE, the
GECC Group, Harcourt (and their respective officers, directors, employees and
other agents, advisors, attorneys and accountants) shall be entitled to rely, in
every respect, upon the advice of counsel with respect to their duties and
responsibilities under the Plan.
12.6 Waiver of Subordination Rights. On the Effective Date, each Person
holding a Claim or Interest shall be deemed (a) by virtue of the acceptance of
the Plan by the requisite majority in number and amount of members in its Class,
(b) by virtue of the acceptance or deemed acceptance of the Plan by such Person,
or (c) by the acceptance by such Person of any distribution made or
consideration given under the Plan, to have waived and relinquished any
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and all rights arising under the Intercreditor Agreement, any subordination
agreements or applicable law, including, without limitation, Section 510 of the
Bankruptcy Code, to the payment or distributions of consideration made or to be
made under the Plan to any other Person holding a Claim against, or an Interest
in, any Debtor or more than one of the Debtors.
12.7 Limited Releases by Holders of Claims and Interests. On and after
the Effective Date, each Holder of a Claim or Interest who has accepted the Plan
and who has not elected on the Ballot to opt out of this provision, in exchange
for, among other things, such Holder's distribution under the Plan, shall be
deemed to have released unconditionally each of the Debtors, and (to the extent
that the following persons or entities are such as of the date of this Plan),
their subsidiaries, their Affiliates, and the agents, officers, directors,
partners, members, professionals and agents of the foregoing (and the officers,
directors, partners, members, professionals and agents of each thereof), from
any and all Claims, obligations, rights, suits, damages, Causes of Action,
remedies and liabilities whatsoever, whether liquidated or unliquidated, fixed
or contingent, matured or unmatured, known or unknown, foreseen or unforeseen,
existing or hereafter arising, in law, equity or otherwise, that such Person or
Entity would have been legally entitled to assert (whether individually or
collectively), based in whole or in part upon any act or omission, transaction,
agreement, event or other occurrence taking place on or before the Effective
Date in any way relating or pertaining to the Debtors, the Cases, the Plan, the
Disclosure Statement, or any related agreements, instruments or other documents,
except: (i) for Claims arising under or preserved by the Plan (including any
Claims arising after the Effective Date under assumed leases and executory
contracts and including Allowed Administrative Claims) and (ii) for Claims
arising after the Petition Date in the ordinary course of business. In
furtherance of the foregoing, the Confirmation Order will constitute an
injunction permanently enjoining the commencement or prosecution by any entity,
whether directly, derivatively or otherwise, of any Claim, demand, liability,
obligation, debt, right, Cause of Action, interest or remedy released or to be
released pursuant to the Plan against the foregoing Persons and Entities.
Notwithstanding the foregoing,
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this Section 12.7 shall not apply to any Holder of an Interest in the event the
Class 10 Participation Conditions are not satisfied.
12.8 Enforceability of Releases. Notwithstanding anything contained
herein to the contrary, the foregoing release provisions of this Section 12 with
respect to the release of non-Debtor third parties shall be enforced only to the
extent permitted by applicable bankruptcy and non-bankruptcy law.
ARTICLE 13
CONDITIONS TO CONFIRMATION AND EFFECTIVENESS
13.1 Conditions Precedent to Plan Confirmation. The following are
conditions precedent to confirmation of the Plan:
13.1.1 [omitted].
13.1.2 [omitted].
13.1.3 AMCE shall not have terminated its obligations under
the AMCE Letter of Intent in accordance with Section 3(f) thereof.
13.1.4 The Bankruptcy Court shall have entered one or more
orders, in form and substance satisfactory to AMCE, which shall be in full force
and effect and not stayed and which shall:
(i) decree that the Plan and the Confirmation Order
shall supersede any Bankruptcy Court orders issued prior to the Effective Date
that are inconsistent therewith;
(ii) authorize the implementation of the Plan in
accordance with its terms, including, without limitation, the execution and
delivery of the agreements and instruments entered into pursuant to the Plan
(including, without limitation, each of the Plan Documents);
(iii) subject to Section 16.9 of the Plan, issue the
injunction and authorize the issuance of the releases and exculpations as set
forth in the Plan, effective as of the Effective Date;
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(iv) decree that, on the Effective Date, the
transfers of assets by the Debtors contemplated by the Plan (i) are or will be
legal, valid and effective transfers of property, (ii) vest or will vest in the
transferee good title to such property free and clear of all Claims, Interests
and Liens, except those provided for in the Plan or the Confirmation Order,
(iii) do not or will not constitute fraudulent conveyances under any applicable
law and (iv) do not and will not subject the Debtors, Reorganized Debtors or
property so transferred to any liability by reason of such transfer under
applicable law or any theory of law including, without limitation, any theory of
successor or transferee liability; and
(v) confirm the Plan and authorize its implementation
in accordance with its terms.
(vi) the offer and the sale of the New AMCE Notes,
New AMCE Stock and New Investments LLC interests under the Plan (which does not
include any New Investments LLC interests offered and sold in the Equity
Financing) are exempt from registration under the Securities Act of 1933 and
state securities laws under section 1145(a) of the Bankruptcy Code.
13.2 Conditions Precedent to Plan Effectiveness. The following shall be
conditions precedent to the effectiveness of the Plan and the occurrence of the
Effective Date.
(i) The orders referred to in Section 13.1,
including, without limitation, the Confirmation Order, shall be Final Orders.
(ii) All agreements and instruments contemplated by,
or to be entered into pursuant to, the Plan, including, without limitation, each
of the Plan Documents necessary for consummation of the Plan, shall have been
duly and validly executed and delivered by the parties thereto and all
conditions to their effectiveness shall have been satisfied or waived.
(iii) All conditions to AMCE's obligation to close
the acquisition of Reorganized GCX set forth in the AMCE Acquisition Agreement
shall have been satisfied or waived by AMCE.
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13.3 Waiver of Conditions. The conditions set forth in Sections 13.1
and 13.2, other than those set forth in Section 13.1.4, may be waived with the
consent of AMCE and the Proponents, at any time, without notice, leave or order
of the Bankruptcy Court, and without any formal action other than proceeding to
consummate the Plan.
ARTICLE 14
RETENTION OF JURISDICTION
14.1 Retention of Jurisdiction. Notwithstanding the entry of the
Confirmation Order or the occurrence of the Effective Date, the Bankruptcy Court
shall retain jurisdiction over the Cases and any of the proceedings arising
from, or relating to, the Cases pursuant to Section 1142 of the Bankruptcy Code
and 28 U.S.C. Section 1334 to the fullest extent permitted by the Bankruptcy
Code and other applicable law, including, without limitation, such jurisdiction
as is necessary to ensure that the purpose and intent of the Plan are carried
out. Without limiting the generality of the foregoing, the Bankruptcy Court
shall retain jurisdiction for the following purposes:
(i) to hear and determine any and all objections to
the allowance, or requests for estimation, of Claims or the establishment of
reserves pending the resolution of Disputed Claims;
(ii) to consider and act on the compromise and
settlement of any Claim against, or cause of action on behalf of, any Debtor or
any Estates;
(iii) to hear and determine any motions pending on
the Effective Date to assume, assume and assign or reject any executory contract
or unexpired lease and to determine the allowance of any Claim resulting
therefrom;
(iv) to enter such orders as may be necessary or
appropriate in connection with the recovery of the Debtors' assets wherever
located;
(v) to hear and determine any and all applications
for allowance of compensation and reimbursement of expenses;
(vi) to hear and determine any and all controversies,
suits and disputes arising under or in connection with the interpretation,
implementation or enforcement of the Plan
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and any of the documents intended to implement the provisions of the Plan or any
other matters to be resolved by the Bankruptcy Court under the terms of the
Plan.
(vii) to hear and determine any motions or contested
matters involving Taxes, tax refunds, tax attributes and tax benefits and
similar and related matters with respect to any Debtor arising prior to the
Effective Date or relating to the administration of the Cases, including,
without limitation, matters involving federal, state and local Taxes in
accordance with Sections 346, 505 and 1146 of the Bankruptcy Code;
(viii) to hear and determine any and all
applications, adversary proceedings and contested matters pending on the
Effective Date or that may be commenced thereafter as provided in the Plan;
(ix) to effectuate distributions under and
performance of the provisions of the Plan;
(x) to hear and determine any applications to modify
any provision of the Plan to the full extent permitted by the Bankruptcy Code;
(xi) to correct any defect, cure any omission or
reconcile any inconsistency in the Plan, the exhibits to the Plan and annexes
thereto, including any of the Plan Documents, or any order of the Bankruptcy
Court, including the Confirmation Order, as may be necessary to carry out the
purposes and intent of the Plan;
(xii) to determine such other matters as may be
provided for in the Confirmation Order or as may from time to time be authorized
under the provisions of the Bankruptcy Code or any other applicable law;
(xiii) to enforce all orders, judgments, injunctions,
releases, exculpations, indemnifications and rulings issued or entered in
connection with the Cases or the Plan;
(xiv) to enter such orders as may be necessary or
appropriate in aid of confirmation and to facilitate implementation of the Plan,
including, without limitation, any stay
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orders as may be appropriate in the event that the Confirmation Order is for any
reason stayed, revoked, modified or vacated;
(xv) to determine any other matter not inconsistent
with the Bankruptcy Code;
(xvi) to hear and determine any dispute that may
arise relating to the governance or structure of New Investments LLC; and
(xvii) to issue a final decree closing the Cases.
ARTICLE 15
MODIFICATION OR WITHDRAWAL OF PLAN
15.1 Modification of Plan. At any time prior to confirmation of the
Plan, with the consent of AMCE (but not otherwise), the Proponents may
supplement, amend or modify the Plan. After confirmation of the Plan, with the
consent of AMCE (but not otherwise), the Debtors or Reorganized Debtors may
apply to the Bankruptcy Court, pursuant to Section 1127 of the Bankruptcy Code,
to modify the Plan. After confirmation of the Plan, the Debtors or Reorganized
Debtors with the consent of AMCE (but not otherwise) may apply to remedy defects
or omissions in the Plan or to reconcile inconsistencies in the Plan, but any
modification that adversely affects the treatment of Class 6 shall require the
consent of the Post-Confirmation Committee. The Plan may not be altered, amended
or modified without the written consent of AMCE and, prior to the Effective
Date, the Debtors or, after the Effective Date, Reorganized Debtors.
15.2 Withdrawal of Plan. The Proponents reserve the right, with the
consent of AMCE (but not otherwise), to revoke and withdraw the Plan at any time
before the Confirmation Date or, if the conditions set forth in Section 13.2
hereof cannot be satisfied for any reason after the Confirmation Date, at any
time up to the Effective Date.
15.3 Termination Events. If the Proponents, with the consent of AMCE
(but not otherwise), revoke or withdraw the Plan prior to the Confirmation Date,
if confirmation is denied by a Final Order, or if the Effective Date does not
occur by June 1, 2002 (or such later date as
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may be agreed to by the Creditor Parties, AMCE and GCX), then the 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 entity or to prejudice in any manner the rights of the Debtors or any
entity in any further proceedings involving the Debtors.
15.4 Nonconsensual Confirmation. In the event that any impaired Class
of Claims or Interests shall fail to accept the Plan in accordance with section
1129(a)(8) of the Bankruptcy Code, the Proponents (i) request that the
Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the
Bankruptcy Code, and (ii) in accordance with Section 15.1, and with the consent
of AMCE (but not otherwise), may modify the Plan in accordance with section
1127(a) of the Bankruptcy Code.
ARTICLE 16
MISCELLANEOUS
16.1 Payment of Statutory Fees. All quarterly fees due and payable to
the Office of the United States Trustee pursuant to section 1930(a)(6) of title
28 of the United States Code shall be paid in full on or before the Effective
Date, or, to the extent such quarterly fees are disputed, an adequate reserve
shall have been established and set aside for payment in full thereof, as
required by section 1129(a)(12) of the Bankruptcy Code. Each Reorganized Debtor
shall remain responsible for timely payment of its respective quarterly fees due
and payable after the Effective Date and until such Reorganized Debtor's Case is
closed, to the extent required by section 1930(a)(6) of title 28 of the United
States Code; provided, however, that all such quarterly fees shall be paid by
the Class 6 Distribution Agent or (if the Committee elects to establish the
Unsecured Stock Trust) the Unsecured Stock Trustee as a Class 6 Distribution
Expense. After the Effective Date and until the Cases are closed, the
Reorganized Debtors shall file with the Office of the United States Trustee any
required financial reports.
16.2 Payment Dates. Whenever any payment or distribution to be made
under the Plan shall be due on a day other than a Business Day, such payment or
distribution shall instead be made, without interest, on the immediately
following Business Day.
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16.3 Headings. The headings used in the Plan are inserted for
convenience only and neither constitutes a portion of the Plan nor in any manner
affect the construction of the provisions of the Plan.
16.4 Other Documents and Actions. The Reorganized Debtors may execute
such other documents and take such other actions as may be necessary or
appropriate to effectuate the transactions contemplated under this Plan.
16.5 Notices.
All notices and requests in connection with the Plan shall be in
writing and shall be hand delivered or sent by mail addressed to:
GC Companies, Inc.
Attention: Chief Executive Officer
1300 Boylston Street
Chestnut Hill, MA 02467
with copies to:
PACHULSKI, STANG, ZIEHL, GOODWIN PROCTER LLP
YOUNG & JONES P.C. Daniel M. Glosband P.C.
Marc A. Beilinson Exchange Place
Jeremy V. Richards Boston, Massachusetts 02109
10100 Santa Monica Boulevard, Suite 1100 Telephone: (617) 570-1000
Los Angeles, California 90067 Facsimile: (617) 523-1231
Telephone: (310) 277-6910
Facsimile: (310) 201-0760
AMC ENTERTAINMENT, INC. LATHROP & GAGE L.C.
Craig Ramsey Raymond F. Beagle Jr., Esq.
Chief Financial Officer 2345 Grand Boulevard
106 W. 14th Street Suite 2800
Suite 2000 Kansas City, MO 64105
Kansas City, MO 64105 Telephone: (816) 460-5823
Telephone: (816) 221-4060 x 346 Facsimile: (816) 292-2001
Facsimile: (816) 480-4617
STUTMAN, TREISTER &
GLATT PROFESSIONAL CORPORATION
Isaac M. Pachulski
3699 Wilshire Boulevard, 9th Floor
Los Angeles, California 90010
Telephone: (213) 251-5100
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Facsimile: (213) 251-5288
All notices and requests to any Person holding of record any Claim or Interest
shall be sent to them at their last known address or to the last known address
of their attorney of record. Any such Person may designate in writing any other
address for purposes of this Section 16.3.2, which designation will be effective
on receipt.
16.6 Governing Law. Unless a rule of law or procedure is supplied by
federal law (including the Bankruptcy Code and Bankruptcy Rules), the laws of
the State of Delaware (without reference to its conflict of law rules) shall
govern the construction and implementation of the Plan and any agreements,
documents, and instruments executed in connection with the Plan, unless
otherwise specifically provided in such agreements, documents, or instruments.
16.7 Binding Effect. The Plan and all rights, duties and obligations
thereunder shall be binding upon and inure to the benefit of the Debtors, the
Reorganized Debtors, holders of Claims, holders of Interests, and their
respective successors or assigns.
16.8 Successors and Assigns. The rights, benefits, and obligations of
any entity named or referred to in the Plan shall be binding on, and shall inure
to the benefit of, the heirs, executors, administrators, successors, and assigns
of such entity.
16.9 Severability of Plan Provisions. If, prior to the Confirmation
Date, any term or provision of the Plan is held by the Bankruptcy Court to be
illegal, impermissible, invalid, void or unenforceable, or otherwise to
constitute grounds for denying confirmation of the Plan, the Bankruptcy Court
shall, with the consent of the Proponents and AMCE (as to all terms and
provisions other than those contained in Sections 12.2 or 12.7 of the Plan) and
with the consent of AMCE alone (in the case of any terms or provisions of
Sections 12.2 or 12.7 of the Plan), have the power to interpret, modify or
delete such term or provision (or portions thereof) to make it valid or
enforceable to the maximum extent practicable, consistent with the original
purpose of the term or provision held to be invalid, void or unenforceable, and
such term or provision shall then be operative as interpreted, modified or
deleted. Notwithstanding any such interpretation,
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modification or deletion, the remainder of the terms and provisions of the Plan
shall in no way be affected, impaired or invalidated by such interpretation,
modification or deletion; provided, however, that notwithstanding anything to
the contrary herein, if, prior to the Confirmation Date, any term or provision
of the Plan is held by the Bankruptcy Court to be illegal, impermissible,
invalid, void, unenforceable or otherwise to constitute grounds for denying
confirmation of the Plan: (i) any such term or provision in Sections 12.2 or
12.7 of the Plan shall be severable at the sole election of AMCE; and (ii)
except for any term or provision in Sections 12.2 or 12.7 of the Plan, the terms
and provisions of the Plan shall not be severable unless such severance is
agreed to by the Proponents and consented to by AMCE.
16.10 No Waiver. The failure of the Debtors or any other Person to
object to any Claim for purposes of voting shall not be deemed a waiver of the
Post-Confirmation Committee's or Reorganized Debtors' right to object to or
examine such Claim, in whole or in part.
16.11 Committee.
16.11.1 From the Confirmation Date and up to and including the
Effective Date, the members of the Committee appointed pursuant to section 1102
of the Bankruptcy Code, and their duly appointed successors, will continue to
serve. On or prior to the Effective Date, the Committee shall appoint three (3)
of its members to serve as a Post-Confirmation Committee, which shall continue
in existence until the later of: (a) the completion of all distributions to
Persons holding Allowed Class 6 Claims; or (b) entry of a Final Order in respect
to all objections to Claims asserted by the Post-Confirmation Committee. If for
any reason a member of the Post-Confirmation Committee ceases to be a member,
the remaining Post-Confirmation Committee members may select a successor to that
member, provided the successor member holds an Allowed Class 6 Claim. Those
Committee members not continuing to serve on the Post-Confirmation Committee and
any professionals not continuing to be employed by the Post-Confirmation
Committee shall be released and discharged from their respective fiduciary
obligations; provided, however, that following the Effective Date, the
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responsibilities of such members and professionals shall be limited to the
preparation of their respective fee applications.
16.11.2 The Post-Confirmation Committee shall have all of the
rights and duties of an official committee appointed pursuant to Bankruptcy Code
Section 1102, and may without order of the Bankruptcy Court employ and pay
professionals as provided in the Plan, including the same professionals employed
by the Committee, to assist it in the performance of its duties.
16.12 Payment of Postpetition Interest and Attorneys' Fees. Unless
otherwise expressly provided in the Plan, or allowed by order of the Bankruptcy
Court, or required to be paid pursuant to the DIP Facility Order, the Debtors or
Reorganized Debtors shall not be required to pay to any holder of a claim any
interest, penalty or late charge, accruing on or after the Filing Date or any
attorneys' fees with respect to such claim (except as may be specified in the
Plan Documents).
16.13 Services by and Fees for Professionals and Certain Parties.
16.13.1 Fees and expenses for the professionals retained by
the Debtors or the Committee for services rendered and costs incurred after the
Petition Date and prior to the Effective Date will be fixed by the Bankruptcy
Court after notice and a hearing and such fees and expenses will be paid by
Reorganized GCX or Reorganized GCT (less deductions for any and all amounts
thereof already paid to such Persons) within five (5) Business Days after a
Final Order of the Bankruptcy Court approving such fees and expenses.
16.13.2 The Reorganized Debtors may, in the ordinary course
and without need for notice or Bankruptcy Court order, employ professionals,
including any professionals employed during this case, to assist in the
performance of their duties hereunder. Any professionals so employed shall be
entitled to receive reasonable compensation and reimbursement of expenses, to be
determined and paid in the discretion of the Reorganized Debtors without need
for Bankruptcy Court approval.
16.13.3 The Post-Confirmation Committee, the Class 6
Distribution Agent and, if applicable, the Unsecured Stock Trust, may, in the
ordinary course and without need for notice
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or Bankruptcy Court order, employ professionals, including any professionals
employed by the Committee during this case, to assist in the performance of
their duties hereunder. The Post-Confirmation Committee, the Class 6
Distribution Agent, the Unsecured Stock Trustee (if any) and any professionals
employed by any or all of them shall be entitled to receive compensation and
reimbursement of expenses as provided for in the Plan without need for
Bankruptcy Court approval.
16.14 Exemption from Securities Laws. All of the New AMCE Stock, New
AMCE Notes and New Investments LLC Interests (other than those issued in the
Equity Financing) distributed pursuant to this Plan are and shall be entitled to
the benefits and exemptions provided by section 1145 of the Bankruptcy Code.
16.15 Implementation of Bankruptcy Code Section 1146(c). Pursuant to
Section 1146(c) of the Bankruptcy Code, any transfers or other transactions that
occur pursuant to or in connection with this Plan or the Confirmation Order
shall not be subject to, and may not be taxed under any federal, State, or local
law imposing a stamp tax, real estate transfer tax, document recording tax,
conveyance fee, intangibles or similar tax, mortgage tax, mortgage recording tax
or similar tax or governmental assessment, including but not limited to: (i) the
issuance, transfer, or exchange of any security (including but not limited to
the New AMCE Securities and the New GCC Investment Preferred Stock); (ii) the
creation, modification, filing, or recording of any mortgage, deed of trust,
deed to secure debt, collateral pledge, collateral assignment, UCC financing
statement, or other security interest or lien; (iii) the making or assignment of
any contract, lease, or sublease; (iv) the making or delivery of any deeds,
bills of sale, or assignments; or (v) the making of any agreement or instrument
in furtherance of, or in connection with, this Plan, including any merger
agreements, agreements or consolidation, restructuring, disposition, liquidation
or dissolution, deeds, bills of sale, or assignments executed in connection with
the Plan.
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16.16 Inconsistencies. In the event the terms or provisions of the Plan
are inconsistent with the terms and provisions of the Exhibits to the Plan or
documents executed in connection with the Plan, the terms of the Plan shall
control.
Dated: December __, 2001
GC COMPANIES, INC. AND ITS JOINTLY
ADMINISTERED SUBSIDIARIES
By: /s/
----- ---------------------
Name:
Title:
OFFICIAL COMMITTEE OF UNSECURED CREDITORS
By: /s/
----- ---------------------
Name: William Kaye
Title: Chairperson
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EXHIBIT 1.94
HARCOURT LEASES
GENERAL CINEMA
ENTITY: TENANT,
UNIT LANDLORD OR MANAGING AGENT
NO. UNIT NAME ADDRESS 1 CITY STATE OWNER (managed) OR OWNER
--- --------- --------- ---- ----- --------------- --------
Charleston Joint General Cinema Corp.
408 Citadel Mall 2072 SAM RITTENBERG BLVD CHARLESTON SC Venture of South Carolina
COUNTY SEAT SHOPPING CENTER, General Cinema Corp.
448 COUNTY SEAT 2849 Calumet Ave. VALPARAISO IN County Seat, L.P. of Indiana
634 MCKINLEY MALL, WXI/BUF/W Real General Cinema
480 McKinley Mall 3701 McKinley Pkwy BUFFALO NY Estate, LLC Corp. of New York, Inc.
Marcelo F. Gomez, General Cinema Corp.
483 The Park 200 SOUTH ALTO MESA DRIVE EL PASO TX Trustee of Texas
10055 KITSAP General Cinema Corp.
491 Kitsap Mall MALL BLVD., N.W. SILVERDALE WA C.D. Stimson Company of Washington
Fayetteville
Morganton Road
CROSS POINTE CENTRE, Associates Limited General Cinema Corp. of
492 Cross Pointe 5075 Morganton Rd. FAYETTEVILLE NC Partnership North Carolina
Plaza At AT CHAPEL HILL, CUYAHOGA Plaza Chapel Hill General Cinema Theatres
496 Chapel 500 Howe Ave. FALLS OH East Co. of Ohio, Inc.
Avco Corporation a/k/a G.C. Theatre Corp. of
720 AVCO 10840 WILSHIRE BLVD LOS ANGELES CA Textron, Inc. California
Eastgate Simon DeBartolo General Cinema Corp. of
793 Indpls 7150 E. WASHINGTON ST. INDIANAPOLIS IN Group, L.P. Indiana
General Cinema Corp. of
825 CHESTNUT HILL 27 Boylston Street Chestnut Hill MA Harcourt General, Inc. Massachusetts
Simon DeBartolo General Cinema Corp. of
843 CASTLETON SQ 6135 E. 86TH STREET INDIANAPOLIS IN Group, L.P. Indiana
Deptford Mall General Cinema Theatres of
849 Deptford 1795 DEPTFORD CENTER RD. DEPTFORD NJ Associates New Jersey, Inc.
GENERAL CINEMA
ENTITY: TENANT,
UNIT LANDLORD OR MANAGING AGENT
NO. UNIT NAME ADDRESS 1 CITY STATE OWNER (managed) OR OWNER
--- --------- --------- ---- ----- --------------- --------
Lehigh Valley General Cinema Corp. of
858 LEHIGH VALLEY 740 LEHIGH VALLEY MALL WHITEHALL PA Associates Pennsylvania
Security MDR Security Square General Cinema Corp. of
863 Square 1717 ROLLING ROAD BALTIMORE MD Limited Partnership Maryland, Inc.
General Cinema Corp. of
867 Springfield 6500 J Springfield Mall Springfield VA Fraconia Two, L.P. Virginia
General Cinema Corp. of
875 Southlake 2475 SOUTHLAKE MALL MERRILLVILLE IN Gary Joint Venture Indiana
Harcourt General,
880 HOME OFFICE 1300 BOYLSTON STREET Chestnut Hill MA Inc. GC Companies, Inc.
1220 SE Everett General Cinema Corp. of
882 Everett Mall Mall Way Everett WA Titanic Associates Washington
General Cinema Corp. of
893 Cielo Vista 7700-A VISCOUNT BLVD. EL PASO TX Celina Plaza Inc. Texas
Bay Plaza Community General Cinema Corp. of
902 Bay Plaza 2210 BARTOW AVENUE BRONX NY Center, LLC New York, Inc.
General Cinema Theatres of
904 Westwood Town 21653 CENTER RIDGE ROAD ROCKY RIVER OH Westwood Town Center Ohio, Inc.
Bridgewater Commons General Cinema Theatres of
905 Bridgewater 400 COMMONS WAY, Suite 380 BRIDGEWATER NJ Associates New Jersey, Inc.
NO North Charleston General Cinema Corp. of
914 Northwoods 2180 NORTHWOODS BOULEVARD CHARLESTON SC Joint Venture South Carolina
General Cinema Theatres of
917 Ridge Park 4788 RIDGE ROAD BROOKLYN OH Ridge Park Square LLC Ohio, Inc.
General Cinema Theatres of
924 Westgate, 6 3200 LINDEN ROAD ROCKY RIVER OH Westgate Joint Venture Ohio, Inc.
West Market Plaza General Cinema Theatres of
927 West Market 3879 MEDINA ROAD AKRON OH Limited Partnership Ohio, Inc.
Simon Property General Cinema Corp. of
933 Sunland Park 750 SUNLAND PARK DRIVE EL PASO TX Group, L.P. Texas
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GENERAL CINEMA
ENTITY: TENANT,
UNIT LANDLORD OR MANAGING AGENT
NO. UNIT NAME ADDRESS 1 CITY STATE OWNER (managed) OR OWNER
--- --------- --------- ---- ----- --------------- --------
Renton Village General Cinema Corp. of
936 Renton Village 25 SOUTH GRADY WAY RENTON WA Associates Washington
100 NORTH LA CIENEGA, The Beverly G.C. Theatre Corp. of
938 Beverly Suite 215 LOS ANGELES CA Connection, Ltd. California
American National
Bank and Trust
Company as Trustee
Under Trust
Agreement, dated
March 1, 1987 and
known as Trust General Cinema Theatres of
940 Ford City 7601 S. CICERO AVENUE CHICAGO IL No. 101496-07 Illinois, Inc.
General Cinema Corp. of
942 Centennial 7311 FRANCE AVENUE EDINA MN Bertram L. Miner Minnesota, Inc.
7021 HOLLYWOOD Street Retail G.C. Theatre Corp. of
943 Hollywood BOULEVARD, Suite 200 HOLLYWOOD CA West 7, L.P. California
Ford Leasing G.C. Theatre Corp. of
957 GLENDALE 501 North Orange Glendale CA Corporation California
WALDEN Pyramid Company General Cinema Corp. of
958 GALLERIA 6 GALLERIA DRIVE CHEEKTOWAGA NY of Buffalo New York, Inc.
440 Middlesex Road, TYN Limited General Cinema Corp. of
963 TYNGSBORO PO Box 703 Tyngsboro MA Partnership Massachusetts
Towson TOWSON COMMONS, General Cinema Corp. of
966 Commons 435 York Rd., Suite 200 TOWSON MD Towson Commons, LP Maryland, Inc.
82ND STREET AND Crossing Realty General Cinema Corp. of
968 CLEARWATER DEAN ROAD INDIANAPOLIS IN Corporation Indiana
Charlotte R. Flatley
and John P. Garrahan, General Cinema Corp. of
969 Braintree 121 GRANDVIEW ROAD BRAINTREE MA Trustees of the 1970 Massachusetts
Flatley Family Trust
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GENERAL CINEMA
ENTITY: TENANT,
UNIT LANDLORD OR MANAGING AGENT
NO. UNIT NAME ADDRESS 1 CITY STATE OWNER (managed) OR OWNER
--- --------- --------- ---- ----- --------------- --------
Burlington Theater General Cinema Corp. of
971 BURLINGTON 20 South Ave. Burlington MA Limited Partnership Massachusetts
Yorktown Joint General Cinema Theatres of
979 YORKTOWN 80 YORKTOWN CENTER LOMBARD IL Venture Illinois, Inc.
BOLD = 11 THEATRES UNITS PLUS HOME OFFICE LEASE ASSUMED PRIOR TO DECEMBER 6,
2001
-4-
EXHIBIT 1.101
IDENTIFIED LEASES
UNIT # THEATRE NAME
- -------------------------------
410 Pga
414 Gwinnett Place
421 Westdale
449 Galleria
466 Dublin Place
471 Coral Square
474 Central Park
476 Northland
477 Burnhaven
482 Pinellas Square
484 Point Nasa
493 Regency
499 Lindbergh
507 Janaf
514 Lakeside (2 Units)
662 Wyoming Valley
691 Columbia City
704 Lakehurst
713 Rutgers
716 Deerbrook
804 Crosscreek Mall
806 Erie Commons
809 Shelard Park
829 Mercer Mall
834 Lakeside (2 Units)
837 Hanes Mall
841 Wyoming Valley
846 Lafayette Sq
853 Merchants Walk
861 San Mateo
869 Sandy Springs 8
872 Summit Park
876 Columbia Mall
877 Chestefield
883 Westland
887 Colonial
888 Arlington Park
889 Ridgmar Town Sq
892 Eastland
894 Mall Of Memphis
901 Crossroads East
908 Lincoln Plaza 8
910 Esplanade Mall
912 Highland 10
THIS LISTING OF THE IDENTIFIED LEASES IS FOR PURPOSES OF DEFINING POTENTIAL
CLAIMS UNDER THIS TERM SHEET ONLY AND DOES NOT CREATE ANY RIGHTS IN ANY THIRD
PARTY, INCLUDING WITHOUT LIMITATION ANY LESSORS UNDER THE IDENTIFIED LEASES
915 Pembroke
918 Gateway Center
921 Mission Bay
923 Hairston
925 Fountains 8
928 Richardson
930 Pleasant Valley
934 Great Hills
939 Altamonte 8
941 Midway Mall
947 Lake Mary
952 Canton Cinema
953 Fashion Square
954 Market 7
955 Pittsford
THIS LISTING OF THE IDENTIFIED LEASES IS FOR PURPOSES OF DEFINING POTENTIAL
CLAIMS UNDER THIS TERM SHEET ONLY AND DOES NOT CREATE ANY RIGHTS IN ANY THIRD
PARTY, INCLUDING WITHOUT LIMITATION ANY LESSORS UNDER THE IDENTIFIED LEASES
-2-
EXHIBIT 1.109
NEW AMCE NOTES
9.5% Senior Subordinated Notes due 2011
EXISTING ISSUE: $225 million principal amount of 9.5% Senior
Subordinated Notes due 2011 of AMC Entertainment Inc.
(the "Notes").
ISSUER: AMC Entertainment Inc. ("AMCE" or the "Company").
COUPON: 9.5%, payable twice annually on February 1st and
August 1st.
MATURITY DATE: February 1, 2011.
OPTIONAL The Company may redeem the notes at its option, in
REDEMPTION: whole or in part, at any time after February 1, 2004
at 104.75% of the principal thereof, declining ratably
to 100.00% of the principal amount thereof on or after
February 1, 2007, plus in each case interest accrued
to the redemption date.
CHANGE OF Upon a Change of Control, the holders of the Notes
CONTROL: will have the right to require AMCE to repurchase the
Notes at a price equal to 101% of the principal amount
thereof plus accrued and unpaid interest to the date
of repurchase.
RANKING: The Notes are unsecured senior subordinated
indebtedness ranking pari passu with all of AMCE's
existing and future senior subordinated indebtedness.
The payment of all obligations in respect of the Notes
will be subordinated in right of payment to the prior
payment in full in cash or cash equivalents of all
senior indebtedness. As of June 28, 2001, AMCE had
approximately $73.2 million of net senior indebtedness
and $199 million of pari passu indebtedness
outstanding. In addition, the Notes are effectively
subordinated to all liabilities of AMCE's
subsidiaries, including trade payables but excluding:
(i) intercompany obligations; (ii) liabilities under
guarantees of AMCE's obligations; and (iii)
obligations under operating leases and other
obligations not reflecting in AMCE's consolidated
financial statements.
CERTAIN The indenture contains certain covenants that, among
COVENANTS: other things, restricts AMCE's ability and the ability
of AMCE's subsidiaries to: (i) incur additional
indebtedness; (ii) pay dividends or make distributions
in respect of capital; (iii) purchase or redeem
capital stock; (iv) enter into transactions with
certain affiliates; (v) become liable for any
indebtedness that is subordinate or junior in right of
payment to any senior indebtedness and senior in right
of payment to the Notes; or (vi) consolidate, merge or
sell all or substantially all of AMCE's assets, other
than in certain transactions between one or more of
AMCE's wholly-owned subsidiaries and AMCE.
THESE SECURITIES ARE THE SAME AS THE EXISTING PUBLICLY TRADED ISSUE, WHICH
INDENTURE PROVIDES FOR THE ABILITY TO ADD UP TO $100 MILLION OF ADDITIONAL
SECURITIES - THIS TERM SHEET IS QUALIFIED IN ITS ENTIRETY BY THE DESCRIPTION OF
THE NOTES IN AMCE'S SEC FILINGS, WHICH ARE INCORPORATED BY REFERENCE
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EXHIBIT 1.114
NEWLY REJECTED LEASES
NONE
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