UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW JERSEY
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In re: Case No. 98-10001 (JW), et seq.
(Jointly Administered)
GREATE BAY HOTEL AND CASINO, INC., a New
Jersey Corporation, GB HOLDINGS, INC., a
Delaware Corporation, and GB PROPERTY Chapter 11
FUNDING CORP., a Delaware Corporation,
Debtors.
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DEBTORS' THIRD MODIFIED JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
One Riverfront Plaza
Newark, New Jersey 07102
(973) 596-4500
PD-9779
Attorneys for the Debtors and
Debtors-in-Possession
TABLE OF CONTENTS
PAGE(S)
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ARTICLE 1 DEFINITIONS........................................................1
ARTICLE 2 ADMINISTRATIVE AND PRIORITY TAX CLAIMS.............................7
2.01 Administrative Expense Claims....................................7
2.02 Bar Date for Administrative Expense Claims.......................8
2.03 Ordinary Course Liabilities......................................8
2.04 Priority Tax Claims..............................................8
2.05 Old Note Trustee Fees and Expenses...............................8
ARTICLE 3 CLASSIFICATION OF CLAIMS AND INTERESTS.............................9
3.01 Class 1 - Priority Claims........................................9
3.02 Class 2 - Allowed Claims of Old Notes............................9
3.03 Class 3 - Other Secured Claims...................................9
3.04 Class 4 - General Unsecured Claims...............................9
3.05 Class 5 - Intercompany Notes.....................................9
3.06 Class 6 - Subordinated Claims....................................9
3.07 Class 7 - Old Common Stock and Interests and Claims Relating
Thereto..........................................................9
3.08 Classification Rules.............................................9
3.09 Inter-Company Claims............................................10
ARTICLE 4 TREATMENT OF CLASSES UNDER THE PLAN...............................10
4.01 Class 1 - Priority Claims.......................................10
4.02 Class 2 - Allowed Claims of Old Notes...........................10
4.03 Class 3 - Other Secured Claims..................................10
4.04 Class 4 - General Unsecured Claims..............................10
4.05 Class 5 - Claims of Holders of Intercompany Notes...............10
4.06 Class 6 - Subordinated Claims...................................11
4.07 Class 7 - Old Common Stock and Interests........................11
4.08 Controversy Concerning Impairment...............................11
ARTICLE 5 ACCEPTANCE OR REJECTION OF THE PLAN...............................11
5.01 Impaired Classes Entitled To Vote...............................11
5.02 Acceptance by an Impaired Class of Claims.......................11
5.03 Presumed Acceptance of Plan by Unimpaired Classes...............11
5.04 Possible Presumed Acceptance of Plan by Unimpaired Class 3......11
5.05 Presumed Rejection..............................................11
ARTICLE 6 MEANS FOR IMPLEMENTATION OF THE PLAN..............................12
6.01 New Notes.......................................................12
6.02 Unsecured Creditors Fund........................................12
6.03 Reserve.........................................................12
ARTICLE 7 CONDITIONS PRECEDENT..............................................12
7.01 Conditions Precedent to Confirmation Date.......................12
7.02 Conditions to Effective Date....................................13
7.03 Waiver of Conditions............................................13
ARTICLE 8 DISTRIBUTIONS UNDER THE PLAN......................................13
8.01 Distributions...................................................13
8.02 Regulatory Condition to Distribution............................14
8.03 Surrender of Notes and Other Securities.........................14
8.04 Survival of Certain Terms of the Old Notes Indenture............14
8.05 Method of Payment...............................................14
8.06 Timing of Payment...............................................14
8.07 Setoff..........................................................14
8.08 De Minimis Cash Distributions...................................15
8.09 Unclaimed Distributions to Creditors............................15
8.10 Rounding........................................................15
8.11 Treatment of Disputed Claims....................................16
8.12 Estimation of Claims............................................16
8.13 Registration and Listing of New Notes and New Common Stock......16
8.14 No Multiple Satisfactions.......................................16
ARTICLE 9 EXECUTORY CONTRACTS...............................................17
9.01 Assumption or Rejection of Executory Contracts and Unexpired
Leases..........................................................17
ARTICLE 10 EFFECTS OF PLAN upon CONFIRMATION................................18
10.01 Revesting of Assets............................................18
10.02 Discharge and Injunction.......................................18
10.03 Retention of Jurisdiction......................................18
10.04 Subordination Rights...........................................19
10.05 Effectuating Documents; Further Transactions; Timing...........19
10.06 Ratification of Actions Taken..................................20
10.07 Modification of the Plan.......................................20
ARTICLE 11 MANAGEMENT AFTER CONFIRMATION....................................20
11.01 Board of Directors.............................................20
11.02 Officers.......................................................20
11.03 No Corporate Action Required...................................21
11.04 Powers and Duties of the Debtors...............................21
ARTICLE 12 MISCELLANEOUS PROVISIONS.........................................21
12.01 Exemption from Transfer Taxes..................................21
12.02 Exculpation....................................................21
12.03 Permanent Injunction...........................................21
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12.04 Revocation or Withdrawal of the Plan...........................22
12.05 Binding Effect.................................................22
12.06 Construction...................................................22
12.07 Time...........................................................22
12.08 Headings.......................................................22
12.09 Governing Law..................................................22
12.10 Existence of Committee.........................................22
12.11 Benefit Programs...............................................22
12.12 Retiree Benefits...............................................23
12.13 Payment of Statutory Fees......................................23
12.14 Cramdown.......................................................23
12.15 Execution of Plan Documents....................................23
12.16 Post Confirmation Fees and Expenses............................23
12.17 Closing of Case................................................24
iii
Greate Bay Hotel and Casino, Inc. ("GBHC"), GB Property Funding
Corp. ("Funding"), and GB Holdings, Inc. ("Holdings") (sometimes collectively
"Debtors" and individually each a "Debtor" and sometimes collectively
"Proponents") hereby propose the following Joint Plan of Reorganization pursuant
to section 1121(a) of the Bankruptcy Code.
ARTICLE 1
DEFINITIONS
As used in the Plan, the following terms shall have the respective
meanings specified below (such meanings to be equally applicable to the singular
and plural, and the masculine, feminine and neuter forms of the terms defined).
Administrative Expense Claim means a Claim for payment of any costs
or expenses of administration of the Case incurred after the commencement of the
Case allowable under section 503(b) or 507(a)(1) of the Bankruptcy Code,
including, without limitation: (a) the actual and necessary expenses of
preserving the estates of the Debtors; (b) the actual and necessary expenses of
operating the business of the Debtors (such as wages, salaries or commissions
for services rendered, or severance, bonuses or other amounts due and payable to
employees of the Debtors pursuant to any Court Order); (c) indebtedness or
obligations incurred or assumed by the Debtors in connection with the conduct of
its business, the acquisition or lease of property, or the rendition of services
to the Debtors; (d) allowances of compensation for legal and other services and
reimbursement of expenses awarded pursuant to sections 330(a), 331 and 503(b) of
the Bankruptcy Code, (e) any amounts necessary to cure defaults under assumed
leases pursuant to ss. 363(b)(1)(A) of the Bankruptcy Code and (f) all fees or
charges assessed against the estates of the Debtors under section 1930, title
28, United States Code; provided, however, that an Exempt Tax shall not be an
Administrative Claim. Costs and expenses incurred by the Debtors after the
Effective Date shall be paid in the ordinary course.
Administrative Operating Expense Claim means all Administrative
Expense Claims other than Administrative Claims of Professionals and fees and
charges assessed under 28 U.S.C. ss. 1930.
ADR Procedure means the alternative dispute resolution procedure for
resolution of timely filed personal injury and product liability claims approved
by an Order of the Bankruptcy Court dated August 24, 1998, including any
litigation commenced or to be commenced in accordance with such procedure.
Allowed, when used as an adjective preceding the words "Claim" or
"Interest," means any Claim against or Interest in the Debtors: (a) proof or
application for allowance of which was (i) Filed on or before the date
designated by the Bankruptcy Court as the last date for Filing a Proof of Claim
against or Proof of Interest in the Debtors, (ii) later Filed with Bankruptcy
Court leave after notice and a hearing, or (iii) if no Proof of Claim or Proof
of Interest or application for allowance was Filed, which Claim or Interest has
been or hereafter is listed by the Debtors in the Schedules as liquidated in
amount and not disputed or contingent; and (b) which (i)
is due and payable and as to which no objection to the allowance thereof has
been interposed within the applicable period of limitation fixed by the Plan,
the Bankruptcy Code, the Bankruptcy Rules, the Local Rules or the Bankruptcy
Court or (ii) as to which any objection has been determined by Final Order of
the Bankruptcy Court to the extent such objection has been resolved in favor of
the Holder of such Claim or Interest.
Assets means all property of the Estate of each of the Debtors.
Avoiding Power Causes of Action means rights and remedies accruing
to the Debtors pursuant to Chapter 5 of the Bankruptcy Code, including 11 U.S.C.
ss.ss. 544(b), 547, 548, 549, 550, or 553(b).
Ballots means the ballots accompanying the Disclosure Statement and
the Plan upon which impaired Creditors shall have indicated their acceptance or
rejection of the Plan.
Bankruptcy Code means the Bankruptcy Reform Act of 1978, as amended,
and as codified in title 11 of the United States Code.
Bankruptcy Court means the United States Bankruptcy Court for the
District of New Jersey or any court having competent jurisdiction to hear
appeals or certiorari proceedings therefrom, or any successor thereto that may
be established by act of Congress or otherwise, and that has competent
jurisdiction over the Case.
Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure, as
amended from time to time, as applicable to the Case.
Bar Date is the last date for filing Claims as fixed by the
Bankruptcy Court.
Business Day means any day except Saturday, Sunday or a "legal
holiday," as such term is defined in Bankruptcy Rule 9006(a).
Case means the above-captioned cases under Chapter 11 of the
Bankruptcy Code in which GBHC, Funding and Holdings are the Debtors.
Causes of Action means all legal and equitable claims, demands, or
causes of action held by the Debtors against any entity, including Avoiding
Power Causes of Action.
Cash means cash and cash equivalents held by the Debtors.
Casino Commission means the New Jersey Casino Control Commission.
Claim shall mean a "claim" within the meaning of section 101(5) of
the Bankruptcy Code.
Class means a class of Claims or Interests as classified in the
Plan.
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Collateral means any property of the Estate that secures an Allowed
Secured Claim.
Committee means the official committee of general unsecured
Creditors which was appointed in the Case pursuant to section 1102 of the
Bankruptcy Code.
Confirmation Date means the date the Clerk of the Bankruptcy Court
enters the Confirmation Order on the docket of the Bankruptcy Court.
Confirmation Hearing means the hearing before the Bankruptcy Court
to consider confirmation of the Plan.
Confirmation Order means an order of the Bankruptcy Court confirming
the Plan in accordance with the provisions of Chapter 11 of the Bankruptcy Code.
Creditor means any Entity that has a Claim against the Debtors that
arose on or before the Petition Date or a Claim against the Estate of any kind
specified in section 502(g), 502(h) or 502(i) of the Bankruptcy Code.
Debtors means GBHC, Funding, and Holdings in administratively
consolidated Case Nos. 98-10001, 98-10002 and 98-10003, and includes GBHC,
Funding and Holdings as debtors-in-possession.
Disbursing Agent means the Debtors.
Disclosure Statement means the written disclosure statement and its
appendices, as they may be amended, supplemented or further modified from time
to time, filed by Proponents, with respect to the Plan.
Disputed Claim means a Claim which is not an Allowed Claim.
Effective Date means a Business Day determined by the Proponents
that is not more than fifteen (15) days after the Confirmation Date, and upon
which (a) no stay of the Confirmation Order is in effect and (b) the conditions
to the Effective Date set forth in the Plan have been satisfied or waived. The
Proponents shall file a notice of the Effective Date within three (3) days after
its occurrence, which shall be served upon parties in interest.
Entity means an "entity" within the meaning of section 101(15) of
the Bankruptcy Code.
Estate means the estate created upon the commencement of each Case
as to each Debtor by section 541 of the Bankruptcy Code.
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Exempt Tax means any stamp, recording or similar tax or charge
(including any penalties, interest or additions thereto) within the meaning of
section 1146(c) of the Bankruptcy Code which may be imposed by the laws of any
state upon the transactions contemplated under, or necessary for the success of,
the Plan, including without limitation, any mortgage recording, securities
transfer, deed transfer, documentary transfer or gains taxes.
File, Filed, Filing or Files shall mean file, filed, filing or
files, respectively, with the Bankruptcy Court in the Case.
Final Order means an order or judgment of the Bankruptcy Court or
other court of competent jurisdiction, as entered on the docket of such court,
that has not been reversed or stayed, and as to which: (a) the time to appeal or
petition for certiorari has expired and no timely-filed appeal or petition for
certiorari is pending, or (b) any appeal taken or petition for certiorari filed
has been resolved by the highest court to which the order or judgment was
appealed or from which certiorari was sought.
Fractional Pool Trust means the trust to be established for the
purpose of aggregating, holding for so long as is necessary and liquidating as
soon as practicable for the account and benefit of the Old Note Holders, the
fractional New Notes and distributing the proceeds thereof to the beneficial
holders of Old Note Claims in proportion to their respective rights to receive
fractional New Notes.
Fractional Pool Trust Agreement means the form of agreement
establishing the Fractional Pool Trust.
Fractional Pool Trustee means the Entity retained by the Debtors
under the Fractional Pool Trust Agreement to administer the Fractional Pool
Trust.
General Unsecured Claim means any Claim against the Debtors which
arose or which is deemed by the Bankruptcy Code to have arisen prior to the
Petition Date, and which is not a Claim or an Interest in any other Class.
Holder means any entity holding a Claim or Interest, and includes
the beneficial Holder of such Claim or Interest.
Intercompany Notes means that certain Subordinated Promissory Note
of GBHC in favor of PRT Funding Corp. dated February 17, 1994 in the principal
amount of $10,000,000.00 and that certain Subordinated Promissory Note of GBHC
in favor of Pratt Casino Corporation dated January 14, 1997 in the principal
amount of $5,000,000.00.
Interest means any and all rights arising out of the ownership of
Old Common Stock, including all Claims against the Debtors resulting from the
rescission of a purchase or sale of Old Common Stock, for damages arising from
the purchase or sale of Old Common Stock or for reimbursement or contribution
allowed under section 502 on account of such a claim, and all rights arising out
of contracts, options or warrants to purchase or sell Old Common Stock.
4
Local Rules means the Local Bankruptcy Rules of the District of New
Jersey, as applicable to the Case.
New Common Stock shall mean the ten (10) million shares of new
common stock of Holdings to be issued pursuant to the Plan, in accordance with
the exemption from registration under Bankruptcy Code Section 1145.
New Notes means the $80 million principal amount 10% First Mortgage
Notes due 2009, to be issued by Funding on the Effective Date pursuant to this
Plan, and pursuant to the exemption from registration under Bankruptcy Code
Section 1145.
New Notes Indenture means the trust indenture in accordance with
which the New Notes will be issued.
New Notes Trustee means the financial institution which will serve
as trustee under the New Notes Indenture.
Old Common Stock shall mean the common stock of Holdings, GBHC and
Funding issued and outstanding prior to the Petition Date, and includes any
options or warrants with the right to acquire Old Common Stock.
Old Guarantees means the guarantees by GBHC and Holdings of the Old
Notes.
Old Notes means the 10-7/8% First Mortgage Notes due 2004 issued by
Funding and guaranteed by GBHC and Holdings.
Old Notes Disbursing Agent means the Entity retained by the Debtors
to make distributions of Plan Securities to Holders of Old Notes.
Old Notes Indenture means the Indenture pursuant to which the Old
Notes were issued.
Old Notes Trustee or Trustee means the Entity which, as of the
Effective Date, serves as trustee under the Old Notes Indenture.
Petition Date means January 5, 1998, the date of Filing of the
voluntary petitions for relief commencing the Case.
Plan means this Plan of Reorganization proposed by the Debtors. Any
appendices or supplements to the Plan are incorporated into and made a part
hereof as if fully set forth herein.
Plan Securities means the New Notes and the New Common Stock.
5
Plan Supplement means the appendices and/or supplements that may be
filed by the Proponents prior to Confirmation which may include, but not be
limited to, the New Notes Indenture, a revised Certificate of Incorporation and
By Laws, and such other documents as may be necessary or appropriate.
Priority Claim means any Claim to the extent entitled to priority in
payment under sections 507(a)(2)-(7) or (9) of the Bankruptcy Code.
Priority Tax Claim means any Claim to the extent entitled to
priority in payment under section 507(a)(8) of the Bankruptcy Code.
Professionals means Entities whose Administrative Claims must be
Allowed by Final Order of the Bankruptcy Court under the Bankruptcy Code prior
to payment.
Proof of Claim or Proof of Interest means a Filed Proof of Claim or
Proof of Interest.
Record Date means the date on which Creditors entitled to vote on
the Plan are determined by their record ownership of Claims, which date shall be
the date of entry of an Order of the Bankruptcy Court approving the Disclosure
Statement.
Regulatory Conditions means those conditions described in Section
8.02 of this Plan. Reorganized Debtors means the Debtors after the Confirmation
Order has been entered.
Sands means substantially all of the real and personal property
owned by GBHC and used or useful in the conduct of the business of the Sands
Casino Hotel, Indiana Avenue and Brighton Park, Atlantic City, New Jersey.
Schedules means the Schedules of Assets and Liabilities and
Statements of Executory Contracts and Financial Affairs, Filed by the Debtors in
accordance with the Bankruptcy Rules, as amended.
Security Documents means the documents that create and perfect all
liens, mortgages and security interests which secure the Debtors obligations
under the Old Notes.
Secured Claim means a Claim against the Debtors which is deemed by
the Bankruptcy Code to have arisen prior to the Petition Date and which is (i)
secured by a valid lien, security interest, or other encumbrance on Collateral,
or (ii) subject to setoff under section 553 of the Bankruptcy Code, but only to
the extent of the value of the Collateral, or to the extent of the amount
subject to setoff, determined in accordance with section 506(a) of the
Bankruptcy Code, as modified by section 1111(b) of the Bankruptcy Code.
6
Subordinated Claims means Claims against any of the Debtors which
are junior in priority to General Unsecured Claims by virtue of contract,
applicable law, or Final Order of the Bankruptcy Court.
Unclaimed Distribution means, in respect of any Class of Claims, all
Cash or other property deemed to be "Unclaimed Distributions" pursuant to the
Plan.
Unliquidated, Disputed or Contingent Claim means any Claim, the
amount of which is undetermined or the liability for which is not proven or is
contingent, or disputed, as reflected in either the Schedules or the Proof of
Claim Filed by any Creditor.
Unsecured Creditors Fund means an account to be established under
the Plan and used to pay Allowed General Unsecured Claims.
Unsecured Creditors Fund Administrator means the Entity designated
by the Committee to administer the Unsecured Creditors Fund.
Voting Procedures Order means the Order Scheduling Confirmation
Hearing for the Third Modified Plan of Reorganization and Establishing Voting
Procedures thereto dated ________, 1999.
Document References. All references to documents shall include all
addenda, exhibits and schedules attached thereto or referred to therein.
Other Definitions. A term used and not defined herein, but that is
defined in the Bankruptcy Code, shall have the meaning set forth therein. The
words "herein," "hereof," "hereto," "hereunder," and others of similar import
refer to the Plan as a whole and not to any particular section, subsection, or
clause contained in the Plan. The word "including" shall mean "including,
without limitation." The singular shall include the plural and vice versa unless
the context otherwise requires.
ARTICLE 2
ADMINISTRATIVE AND PRIORITY TAX CLAIMS
2.01 Administrative Expense Claims. Except as set forth in section
2.03 below, Allowed Administrative Expense Claims (other than Claims for
compensation and reimbursement of expenses of Professionals) will be paid in
full, in Cash, on the Effective Date, or, if such Claim becomes Allowed after
the Effective Date, within five (5) days after such Claim becomes Allowed. Any
fees due and owing to the United States Trustee shall be paid in full on the
Effective Date, or as soon thereafter as practicable. All requests by
Professionals for final allowance of compensation and reimbursement of expenses
accrued as of the Confirmation Date must be Filed with the Court within sixty
(60) days of the Confirmation Date and will be paid within five (5) days after
such Claims become Allowed. The estimated amount of unpaid fees and
7
expenses of Professionals as of the Effective Date will be deposited by the
Debtors in a segregated account on the Confirmation Date. Such escrowed funds
shall be used to pay Allowed Administrative Claims of Professionals and any
funds remaining after making all such payments shall revest in the Reorganized
Debtors.
2.02 Bar Date for Administrative Expense Claims.
(a) In General. Unless the payment date is otherwise established by
an Order of the Bankruptcy Court, and other than Administrative Expense Claims
of Professionals, requests for payment of Administrative Expense Claims must be
Filed and served on the Debtors no later than thirty (30) days after the
Effective Date. Any Entity that is required to File and serve a request for
payment of an Administrative Expense Claim and that fails to timely File and
serve such request, shall be forever barred, estopped and enjoined from
asserting such Claim against the Debtors, the Estate of the Debtors or their
respective property.
(b) Professionals. Professionals or other Entities requesting
compensation or reimbursement of expenses pursuant to sections 327, 328, 330,
331, 503(b) and 1103 of the Bankruptcy Code for services rendered before the
Confirmation Date shall File an application for final allowance of compensation
and reimbursement of expenses no later than sixty (60) days after the
Confirmation Date. Objections to applications of professionals or other Entities
for compensation or reimbursement of expenses must be Filed no later than ninety
(90) days after the Confirmation Date.
2.03 Ordinary Course Liabilities. Holders of Administrative
Operating Expense Claims shall not be required to File any request for payment
of such Claims. All Administrative Operating Expense Claims which are not due
and payable by their terms as of Confirmation Date shall be assumed by the
Reorganized Debtors, and paid in accordance with their terms, subject to all
applicable offsets and defenses which the Debtors may hold to payment of such
Claims.
2.04 Priority Tax Claims. At the option of the Debtors, each holder
of an Allowed Priority Tax Claim shall be paid the full amount of such Allowed
Priority Tax Claim, (a) in Cash, on the later of (i) the Effective Date (or as
soon thereafter as is practicable), or (ii) the first Business Day after such
Claim becomes an Allowed Claim (or as soon thereafter as is practicable); or (b)
in equal quarterly installments of principal and interest at the applicable
legal rate over a period not to exceed six (6) years from the date of assessment
of such Priority Tax Claim.
2.05 Old Notes Trustee Fees and Expenses. After application to the
Court within sixty (60) days of the Confirmation Date in an amount determined by
Final Order of the Court, the Debtors will pay all reasonable Allowed fees and
expenses of the Old Notes Trustee incurred in or in connection with the Case.
The Debtors will deposit the estimated amount of fees and expenses of the Old
Notes Trustee in a segregated account on the Confirmation Date, which funds will
be used to make payments of Allowed fees and expenses of the Old Notes Trustee.
Nothing contained in this Plan affects the Old Notes Trustee's rights pursuant
to the Old Notes Indenture to assert a lien on the distributions due to Holders
of Old Notes to secure payment of
8
its fees and expenses. The reasonable fees and expenses of the Old Notes Trustee
incurred in making the distribution to Holders of Old Notes under the Plan shall
be paid by the Reorganized Debtor in the ordinary course. If the Old Notes
Trustee does not serve as the Old Notes Disbursing Agent, then the Plan
Securities distributed to the Old Notes Disbursing Agent may be subject to the
lien of the Old Notes Trustee under the Old Notes Indenture.
ARTICLE 3
CLASSIFICATION OF CLAIMS AND INTERESTS
3.01 Class 1 - Priority Claims. Class 1 consists of all Allowed
Priority Claims against any Debtor. Class 1 is not impaired.
3.02 Class 2 - Allowed Claims of Old Notes. Class 2 consists of all
Allowed Claims of Holders of Old Notes against any Debtor. Class 2 is impaired.
3.03 Class 3 - Other Secured Claims. Class 3 consists of all Allowed
Secured Claims (other than the Old Notes) against any Debtor. Class 3 may be
unimpaired depending upon the treatment option selected by the Proponents.
3.04 Class 4 - General Unsecured Claims. Class 4 consists of all
Allowed General Unsecured Claims against any Debtor. Class 4 is impaired.
3.05 Class 5 - Intercompany Notes. Class 5 consists of all Allowed
Claims of Holders of any Intercompany Notes against any Debtor. Class 5 is
impaired.
3.06 Class 6 - Subordinated Claims. Class 6 consists of all Allowed
Subordinated Claims against any Debtor. Class 6 is impaired.
3.07 Class 7 - Old Common Stock and Interests and Claims Relating
Thereto. Class 7 consists of all Old Common Stock Interests in the Debtors.
Class 7 is impaired.
3.08 Classification Rules. Claim is in a particular Class only to
the extent that the Claim qualifies within the description of Claims of that
Class, and such Claim is in a different Class to the extent that the remainder
of the Claim qualifies within the description of the different Class. Pursuant
to section 1123(a)(4) of the Bankruptcy Code, all Allowed Claims of a particular
Class shall receive the same treatment unless the Holder of a particular Allowed
Claim agrees to a less favorable treatment for such Allowed Claim. For purposes
of the Plan, and pursuant to section 510(a) of the Bankruptcy Code, the Plan
shall give effect to subordination agreements which are enforceable under
applicable nonbankruptcy law, except to the extent the beneficiary or
beneficiaries thereof agree to less favorable treatment. The Plan shall also
give effect to the subordination rules of sections 510(b) and (c) of the
Bankruptcy Code. The inclusion of a Creditor by name in any Class is for
purposes of general description only, and includes all Entities claiming as
beneficial interest holders, assignees, heirs, devisees, transferees or
successors in interest of any kind of the Creditor named.
9
3.09 Inter-Company Claims. Claims by any Debtor against any other
Debtor shall be cancelled and extinguished, including all Claims arising out of
the Old Guarantees.
ARTICLE 4
TREATMENT OF CLASSES UNDER THE PLAN
4.01 Class 1 - Priority Claims. Each holder of an Allowed Priority
Claim shall be paid the Allowed amount of such Claim, including all applicable
interest and other charges to which the Holder of such Allowed Priority Claim
may be entitled under applicable law or contract, to the extent permitted under
the applicable provision of section 507(a), in Cash, on the later of: (a) the
Effective Date (or as soon thereafter as is practicable) and (b) the first
Business Day after such Claim becomes an Allowed Claim (or as soon thereafter as
is practicable).
4.02 Class 2 - Allowed Claims of Old Notes. Holders of Old Notes
shall share pari passu and pro rata in (i) the New Notes, including the New
Notes allocated to this Class pursuant to Section 4.05, and (ii) the New Common
Stock. All distributions to Class 2 shall occur on the Effective Date or as soon
as legally permissible thereafter.
4.03 Class 3 - Other Secured Claims. Holders of Allowed Secured
Claims, other than Holders of Old Notes, at the option of the Proponents, shall
either (a) be paid in full in Cash the Allowed Amount of such Secured Claim in
full satisfaction and discharge of such Creditor's lien, (b) receive deferred
Cash payments totalling the Allowed amount of such Claim of a value as of the
Effective Date at least equal to the value of such Creditor's interest in the
Collateral securing such Claim, and shall retain the lien securing such Claim
and all rights under any instrument evidencing such Claim until paid as provided
herein, (c) will receive, pursuant to abandonment by the Debtors possession of
and the right to foreclose its lien on the Collateral securing such Claim, or
(d) will be treated in accordance with an agreement between the Proponents and
the Holder of such Claim. In the event the treatment provided in subparagraphs
(a), (b) or (c) above results in payment to such Creditor of less than the
Allowed amount of its Claim, it shall be entitled to assert a General Unsecured
Claim against the Debtors for any deficiency.
4.04 Class 4 - General Unsecured Claims. Holders of Allowed General
Unsecured Claims shall share pari passu and pro rata in the net amount remaining
in the Unsecured Creditors Fund after payment of the expenses of the Unsecured
Creditors Fund Administrator.
4.05 Class 5 - Claims of Holders of Intercompany Notes. Holders of
Allowed Intercompany Notes in Class 5 shall be allocated New Notes in a
principal amount equal to the Allowed Amount of Intercompany Note Claims. All
New Notes allocated to Intercompany Note Claims shall be distributed to Holders
of Old Notes in Class 2, on account of and pursuant to the subordination
provisions of the Intercompany Notes.
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4.06 Class 6 - Subordinated Claims. Holders of Allowed Claims in
this Class shall receive no distribution in respect of their Claims.
4.07 Class 7 - Old Common Stock and Interests. Holders of Old Common
Stock and Interests in the Debtors shall receive no distribution under the Plan.
The Old Common Stock and Interests shall be cancelled, extinguished and of no
further force and effect as of the Effective Date.
4.08 Controversy Concerning Impairment. In the event of a
controversy as to whether any Creditor or Holder of an Interest or Class of
Creditors or Class of Holders of Interests is impaired under the Plan, the
Bankruptcy Court shall, after notice and a hearing, determine such controversy.
ARTICLE 5
ACCEPTANCE OR REJECTION OF THE PLAN
5.01 Impaired Classes Entitled To Vote. Classes 2 through 7 are
impaired under the Plan (with the possible exception of Class 3 depending on the
treatment selected by the Proponents). Each impaired Holder of an Allowed Claim
in Classes 2 through 4, including Holders of Allowed Class 3 Claims, shall be
entitled to vote to accept or reject the Plan. The Trustee does not vote on any
claims with respect to the Notes.
5.02 Acceptance by an Impaired Class of Claims. A Class of Creditors
shall have accepted the Plan if Creditors holding at least two-thirds in the
aggregate dollar amount and more than one-half in number of the Allowed Claims
of such Class that have accepted or rejected the Plan vote to accept the Plan.
5.03 Presumed Acceptance of Plan by Unimpaired Classes. Class 1 is
unimpaired under the Plan, and, therefore, is conclusively presumed to accept
the Plan pursuant to section 1126(f) of the Bankruptcy Code and they do not have
a right to vote on the Plan.
5.04 Possible Presumed Acceptance of Plan by Unimpaired Class 3. In
the event that the Proponents elect not to impair Class 3 Claims, the Proponents
reserve the right to have Class 3 presumed to have accepted the Plan pursuant to
section 1126(f) of the Bankruptcy Code, notwithstanding the actual votes of
Holders of such claims.
5.05 Presumed Rejection. Classes 5, 6 and 7 are presumed to have
rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and do not
have the right to vote on the Plan.
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ARTICLE 6
MEANS FOR implementation OF THE PLAN
6.01 New Notes. On the Effective Date, (i) Funding will issue in
integral multiples of $1,000, and Holdings and GBHC will guarantee, the New
Notes in accordance with the New Notes Indenture and all mortgages, liens and
security interests securing the New Notes will be created and perfected, (ii)
Holdings will reserve for issuance, in accordance with the Plan, the New Common
Stock, (iii) Funding and GBHC will each issue to Holdings 100 shares of common
stock in exchange for $250, which will represent all of the issued and
outstanding common stock of Funding and GBHC, and (iv) the Old Notes Indenture,
the Security Documents and all mortgages, liens, security interests and
encumbrances securing the Old Notes will be deemed canceled, terminated,
extinguished and of no force or effect as between the Debtors and the Old Notes
Trustee.
6.02 Unsecured Creditors Fund. On the Effective Date, the Committee
will designate the Unsecured Creditors Fund Administrator. The Disbursing Agent
will pay into the Unsecured Creditors Fund a total of $4,200,000, as follows:
$700,000 on the Effective Date, and $700,000 on each succeeding anniversary of
the Effective Date until the full amount has been paid.
The present value of unpaid amounts due to the Unsecured Creditors
Fund (discounted at a 5% rate) will become due and payable in full on GBHC's
transfer of title to the Sands. If GBHC sells the Sands and (i) proceeds of more
than $300 million are received prior to January 1, 2001, or (ii) proceeds of
more than $325 million are received prior to June 30, 2001, then GBHC will pay
into the Unsecured Creditors Fund an additional amount equal to the lesser of
(a) proceeds in excess of $300 million (if received before January 1, 2001) or
$325 million (if received before June 30, 2001), (b) $3,000,000, or (c) an
amount which, when added to $4,200,000, equals the Allowed Amount of General
Unsecured Claims.
6.03 Reserve. On the Effective Date, the Disbursing Agent will
reserve for distribution all Cash to be distributed on the Effective Date under
the Plan.
ARTICLE 7
CONDITIONS PRECEDENT
7.01 Conditions Precedent to Confirmation Date. The occurrence of
the Confirmation Date of the Plan is subject to satisfaction or waiver of each
of the following conditions:
(a) the Bankruptcy Court has entered the Confirmation Order
containing findings, supported by evidence adduced by the Debtors at the
Confirmation Hearing, that the issuance of all Plan Securities and the execution
of any required indenture and security documents in respect thereto, shall have
been duly and validly authorized by all necessary corporation action; that the
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lien, title or other interest in collateral created by such indenture and
instruments shall be valid and binding and enforceable against the Reorganized
Debtors, as the case may be, and such collateral shall be subject to no prior,
pari passu or subordinate encumbrances or claims except as provided for in such
documents; that any fractional note pool trustee as required by the Fractional
Note Pool Trust Agreement is authorized to serve as such under the Fractional
Pool Trust Agreement and is authorized to rely on information concerning the
identity and size of beneficial holders of the Old Notes from registered holders
of such Notes and that the disbursing agents are authorized to aggregate and
deliver fractional New Notes aggregated into New Notes to such Fractional Pool
Trustee; and in such other form and substance reasonably satisfactory to the
Proponents;
(b) the Debtors have been authorized to assume all leases and
executory contracts which they may seek to assume;
(c) the Debtors have received the consent of any governmental units
whose consent is required for confirmation;
(d) the estimated unpaid fees and expenses of Professionals have
been deposited in a segregated account.
7.02 Conditions to Effective Date. The occurrence of the following
shall be a separate condition to the Effective Date of the Plan:
(a) the Confirmation Order has become a Final Order; and
(b) the New Notes Indenture has been qualified under the Trust
Indenture Act, no conditions (other than Regulatory Conditions) to the issuance
or authentication of the New Notes to be distributed to the Old Notes Disbursing
Agent pursuant to the Plan or the New Notes Indenture shall be unsatisfied, the
New Notes have been authenticated and distributed to the Old Notes Disbursing
Agent and all other requirements of applicable laws have been satisfied.
7.03 Waiver of Conditions. The Proponents shall have the right to
waive any of the foregoing conditions to Confirmation Date, or to the Effective
Date, except for 7.01(a) and (c) and 7.02(b). Without limiting the foregoing,
the Effective Date may occur notwithstanding the pendency of an appeal of the
Confirmation Order or any order related thereto so long as there is no stay in
effect. The Effective Date may occur before the expiration of time to take an
appeal or to seek reconsideration of the Confirmation Order without the giving
of any notice to any objecting party. In the event of any such appeal, the
Proponents may seek the dismissal of such appeal as moot following the Effective
Date of the Plan.
ARTICLE 8
DISTRIBUTIONS UNDER THE PLAN
8.01 Distributions. All distributions under the Plan shall initially
be made by the Disbursing Agent. All distributions under the Plan to Holders of
Old Notes shall be made by the
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Disbursing Agent, by delivering same to the Old Notes Disbursing Agent for
redistribution to Holders of Old Notes. All distributions to members of Class 4
shall be made by the Unsecured Creditors Fund Administrator.
8.02 Regulatory Condition to Distribution. The Old Notes Disbursing
Agent will issue the New Notes and New Common Stock to Holders of Old Notes
entitled to receive such securities as and when all regulatory approvals
required as a condition to issuance of such New Notes or New Common Stock to
such Holder have either been granted by the appropriate regulatory body, have
been waived, or are not required under applicable law. Until the New Common
Stock has been issued to an Entity, the Entity who is not entitled to be issued
New Common Stock by reason of Regulatory Conditions shall have no rights of a
Holder of such New Common Stock, including rights to vote such shares.
8.03 Surrender of Notes and Other Securities. Except as otherwise
ordered by the Bankruptcy Court, in order to receive any distribution under the
Plan, each Holder of an Old Notes Claim will be required to surrender all of its
Old Notes to the Old Notes Disbursing Agent. Failure to comply with such
requirements will bar a Holder of Old Notes from receiving any distributions
under the Plan. Notwithstanding the foregoing, all of the Old Notes will be
deemed surrendered, canceled and of no further force or effect as of the
Effective Date, whether or not the Old Notes are delivered to the Old Notes
Disbursing Agent. Delivery of the Old Notes is required for administrative
convenience only and any such delivery shall not alter a Holder of Old Notes'
legal or equitable rights against any Entity other than the Debtors, if any.
The manner and procedure to be followed for surrendering Old Notes
and for providing necessary affidavits and bonds shall be prescribed by the Old
Notes Disbursing Agent upon reasonable notice sent to all holders of Class 2
Claims.
8.04 Survival of Certain Terms of the Old Notes Indenure.
Notwithstanding the termination and cancellation of the Old Notes, the Old Notes
Indenture and the Security Documents as respects the Debtors, the provisions of
the Old Notes Indenture governing the relationship of the Old Notes Trustee and
the Holders of Old Notes, including those provisions relating to distributions,
the Old Notes Trustee's right to payment and liens on property to be distributed
to Holders of Old Notes, if any, and the Trustee's right of indemnity, if any,
shall not be affected by the Plan.
8.05 Method of Payment. Any Cash payment made by the Disbursing
Agent pursuant to the Plan shall be in U.S. dollars, either by check drawn on a
domestic bank or wire transfer therefrom.
8.06 Timing of Payment. Any payment or distribution required to be
made under the Plan on a day other than a Business Day shall be due on the next
succeeding Business Day.
8.07 Setoff. Nothing contained herein shall be deemed to waive the
Debtors' statutory or common law right of setoff, which may be enforced as to
Class 4 Claims by the Unsecured Creditors Fund Administrator.
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8.08 De Minimis Cash Distributions. The Disbursing Agent or
Unsecured Creditors Fund Administrator shall not be required to distribute Cash
to any Creditor if the amount of Cash to be distributed to such Creditor is less
than $5.00.
8.09 Unclaimed Distributions to Creditors.
(a) Non-Negotiated Checks and Other Consideration. If the Holder of
an Allowed Unsecured Claim fails to present for payment a check issued to such
Holder pursuant to the Plan within ninety (90) days of the date such check was
issued, or if any distributions are returned to the Unsecured Creditors Fund
Administrator due to an incorrect or incomplete address for which neither the
Debtors nor Unsecured Creditors Fund Administrator have received a correct
address, then the amount of Cash or other property attributable to such check or
distribution shall be deemed to be Unclaimed Distributions in respect of such
Holder's Class of Claims and the payee of such check or distribution shall be
deemed to have no further Claim in respect of such check or distribution, and
shall not be entitled to participate in any further distributions under the
Plan. In the event that any New Notes or New Common Stock distributable to the
Holders of Old Notes has not been distributed by the Old Notes Disbursing Agent
to the Holders of an Old Notes Claim within two (2) years of the later of the
Effective Date or the satisfaction of or failure to satisfy the Regulatory
Conditions, then such consideration shall be deemed to be Unclaimed
Distributions. The above time limits shall not apply to distributions to Holders
of Old Notes that the Old Notes Trustee may make pursuant to the Old Notes
Indenture that are independent of the consideration being distributed pursuant
to the Plan.
(b) Revesting of Unclaimed Distributions. All Unclaimed
Distributions of Cash, New Notes, or New Common Stock shall revest in the
Reorganized Debtors.
8.10 Rounding. Whenever any payment of a fraction of a cent would
otherwise be called for, the actual payment shall reflect a rounding of such
fraction to the nearest whole cent, with one-half cent being rounded up to the
nearest whole cent. To the extent Cash remains undistributed as a result of the
rounding of such fraction to the nearest whole cent, such Cash shall be treated
as unclaimed cash under Section 8.08. Whenever any distribution of a fraction of
a share of New Common Stock would otherwise be called for, the actual
distribution will reflect a rounding of such fraction down to the nearest whole
number of shares. Whole shares of New Common Stock not distributed because of
the provisions of this Section will be treated as unclaimed securities under
Section 8.09. New Notes will be issued in integral multiples of $1,000. No
fractional portions of New Notes will be issued. Notwithstanding this "Rounding"
provision, Fractional New Notes will be aggregated by the Old Notes Disbursing
Agent based upon information on beneficial holder Ballots or otherwise from
registered Holders of Old Notes and intermediary Holders of Old Notes, and will
be delivered to the Fractional Note Pool Trustee for sale pursuant to the
Fractional Pool Trust Agreement, with the cash proceeds to be distributed to
Holders of Old Notes in lieu of fractional portions, as provided by the
Fractional Pool Trust Agreement as directed by the Old Notes Disbursing Agent.
15
8.11 Treatment of Disputed Claims. Disputed Claims shall be treated
as follows under the Plan:
(a) Objections to Claims. Except as otherwise provided by the
Bankruptcy Court or in the Plan, all objections to Claims shall be Filed and
served on the Holders of such Claims on or before the later of (i) sixty (60)
days after the Confirmation Date, (ii) sixty (60) days after a particular Proof
of Claim is Filed, except that such Claim shall not be deemed an Allowed Claim
until after the sixty (60) day period lapses, and (iii) such additional date as
the Bankruptcy Court may fix upon application of the Debtor; provided, however,
that no party in interest shall be required to File an objection to any Claim
listed in the Schedules as disputed, contingent, unliquidated or undetermined
and for which no Proof of Claim was Filed, which Claim shall be barred and
disallowed in its entirety. After the Effective Date, the Unsecured Creditors
Fund Administrator shall have the sole right to object to or seek the estimation
of any Claims which are to be paid from the Unsecured Creditors Fund.
(b) No Distributions Pending Allowance. Notwithstanding any other
provision of the Plan to the contrary, no distribution shall be made to the
Holder of a Disputed Claim or the Holder of a Claim who is the subject of a
proceeding against it by the Debtors, unless and until such Disputed Claim
becomes an Allowed Claim or such proceeding is resolved.
(c) Distributions After Allowance. Once a Disputed Claim becomes an
Allowed Claim, distribution on account of such Claim shall be made in accordance
with the provisions of the Plan governing the Class of Claims to which the
respective Claim belongs.
(d) ADR Procedure. The ADR Procedure will continue in effect after
the Effective Date in the Unsecured Creditors Fund Administrator's sole
discretion. All costs and expenses of administering the ADR Procedure incurred
on or after the Effective Date shall be paid from the Unsecured Creditors Fund.
The Unsecured Creditors Fund Administrator shall administer the ADR Procedure
after the Effective Date.
8.12 Estimation of Claims. At any time prior to the Effective Date,
or within sixty (60) days thereafter, the Debtors, Committee or the Unsecured
Creditors Fund Administrator may seek the estimation of a Disputed Claim in
accordance with the applicable provisions of the Bankruptcy Code and Bankruptcy
Rules; provided however, that after the Effective date, only the Unsecured
Creditors Fund Administrator may seek the estimation of a Disputed Class 4
Claim. The estimated amount of a Disputed Claim shall be fixed by Final Order,
which shall be deemed the amount of such Claim for all purposes under the Plan.
8.13 Registration and Listing of New Notes and New Common Stock.
After the Effective Date, the Reorganized Debtors will use their reasonable good
faith best efforts to register the New Notes and New Common Stock in accordance
with applicable law and to cause such securities to be listed on a national
exchange; however, such securities shall be issued under this Plan in reliance
on the exemption from registration provided in Section 1145 of the Bankruptcy
Code, subject to the approval of the Casino Commission.
16
8.14 No Multiple Satisfactions. An Entity that holds a Claim against
more than one Debtor that arises from the same right to payment or equitable
remedy that gives rise to a right to payment, such as a Holder of a Claim for a
loan given to one Debtor, which loan is guaranteed by another Debtor, shall only
receive a distribution as if the Entity was the Holder of a Claim against one
Debtor. Such distribution shall be deemed to be in full satisfaction of the
Entity's Claims against all Debtors.
ARTICLE 9
EXECUTORY CONTRACTS
9.01 Assumption or Rejection of Executory Contracts and Unexpired
Leases.
(a) Executory Contracts. Subject to Section 9.01(d), all executory
contracts that exist between the Debtors and any Entity which have not been
assumed or rejected prior to the Effective Date shall be deemed rejected as of
the Effective Date, except for any executory contract that has been assumed
pursuant to an order of the Bankruptcy Court entered at or prior to the
Effective Date, or which is subject to a pending application to assume or extend
time to assume or reject. Nothing contained herein shall constitute a waiver of
any claim, right or cause of action that the Debtors may hold against any party
to any executory contract with the Debtors, including the insurer under any
policy of insurance.
(b) Options. Any options, warrants or other equity interests
representing the right to acquire Old Common Stock shall be canceled as of the
Effective Date. All Claims arising under such warrants or options shall be
classified in Class 7.
(c) Unexpired Leases. All unexpired leases that exist between the
Debtors and any Entity, which have not been assumed or rejected prior to the
Effective Date shall be deemed rejected as of the Effective Date, except for any
unexpired lease that has been assumed pursuant to an order of the Bankruptcy
Court entered at or prior to the Effective Date, or which is subject to a
pending application to assume or extend time to assume or reject. Nothing
contained herein shall constitute a waiver of any claim, right or cause of
action that the Debtors may hold against any lessor or lessee.
(d) Approval of Assumption or Rejection of Leases and Contracts.
Entry of the Confirmation Order shall constitute the approval, pursuant to
section 365(a) of the Bankruptcy Code, of the assumption or rejection of the
executory contracts and unexpired leases to be assumed or rejected pursuant to
the Plan. Notice of the hearing on Confirmation of this Plan shall constitute
notice to any non-debtor party to an executory contract or unexpired lease,
which is to be assumed or rejected under this Plan, of the Debtors' intent to
assume or reject such contract or lease.
(e) Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to the Plan. Any and all Proofs
of Claim arising out of the rejection of an executory contract or unexpired
lease pursuant to this Article 9 must be Filed
17
within thirty (30) days after the Effective Date. Any Holder of a Claim arising
out of the rejection of an executory contract or unexpired lease who fails to
File a Proof of Claim within such time shall be forever barred, estopped and
enjoined from asserting such Claim against the Debtors or their Estates. Unless
otherwise ordered by the Bankruptcy Court, all Claims arising from the rejection
of executory contracts and unexpired leases shall be treated as General
Unsecured Claims under the Plan. Nothing contained herein shall extend the time
for Filing a Proof of Claim for rejection of any contract or lease rejected
prior to the Confirmation Date.
ARTICLE 10
EFFECTS OF PLAN UPON CONFIRMATION
10.01 Revesting of Assets. Except as otherwise set forth herein,
subject to the provisions of and for the purposes of distributions in accordance
with the Plan, all property of the Estates, including all Causes of Action,
shall revest in the Reorganized Debtors on the Confirmation Date. Such revested
property shall be free and clear of all liens, claims, encumbrances and
interests, except as otherwise provided in the Plan. The Debtors shall be
authorized to prosecute such Avoiding Power Causes of Action after Confirmation.
10.02 Discharge and Injunction. Pursuant to section 1141 of the
Bankruptcy Code, all Claims against or Interests in the Debtors will be
discharged and deemed satisfied upon entry of the Confirmation Order. As of the
Effective Date, all Entities that have held, currently hold or may hold a Claim
or other debt or liability against the Debtors affected by the Plan are enjoined
from taking any actions to collect or recover in any manner on account of any
such Claims, debts or liabilities from any or all of the Assets, except as
otherwise provided in the Plan. The Unsecured Creditors Fund Administrator and
all General Unsecured Creditors will have no recourse against the Reorganized
Debtors after the Effective Date, except for payments due to the Unsecured
Creditors Fund.
10.03 Retention of Jurisdiction. The Bankruptcy Court shall retain
and have jurisdiction over the Case for the following purposes:
(a) to adjudicate all controversies concerning the classification or
allowance of any Claims or Interests;
(b) to liquidate, allow, or disallow any Claims which are disputed,
contingent or unliquidated;
(c) to determine any and all objections to the allowance of Claims
or Interests, or counterclaims to any Claim;
(d) to determine any and all applications for allowance of
compensation and reimbursement of expenses and any other fees and expenses
authorized to be paid or reimbursed under the Bankruptcy Code or the Plan;
18
(e) to determine any applications pending on the Effective Date for
the rejection or assumption of executory contracts or unexpired leases or for
the assumption and assignment, as the case may be, of executory contracts or
unexpired leases to which any Debtor is a party or with respect to which it may
be liable, and to hear and determine, and if need be to liquidate, any and all
Claims arising therefrom;
(f) to adjudicate any actions brought by the Debtors on any Causes
of Action or Avoiding Power Causes of Action, at any time prior to expiration of
the relevant statute of limitations;
(g) to determine any and all applications, adversary proceedings and
contested or litigated matters that may be pending on the last date for
objections to Claims;
(h) to consider any modifications of the Plan, remedy any ambiguity,
defect or omission or reconcile any inconsistency in any order of the Bankruptcy
Court, including the Confirmation Order, to the extent authorized by the
Bankruptcy Court;
(i) to determine all controversies, suits and disputes that may
arise in connection with the interpretation, enforcement or consummation of the
Plan;
(j) to consider and act on the compromise and settlement of any
Claim or cause of action by or against the Estate, including but not limited to
determining all controversies, suits and disputes that may arise in connection
with the interpretation, enforcement or consummation of such compromises and
settlements previously approved by the Bankruptcy Court or that may be approved
in the future;
(k) to issue orders in aid of execution of the Plan to the extent
authorized by section 1142 of the Bankruptcy Code;
(l) to determine such other matters as may be set forth in the
Confirmation Order or which may arise in connection with the Plan or the
Confirmation Order;
(m) to adjudicate disputes over the issuance of New Notes or New
Common Stock to Holders of Allowed Claims; and
(n) to administer the ADR Procedure.
10.04 Subordination Rights. The classification and treatment of all
Claims and Interests under the Plan shall be in full settlement and satisfaction
of any contractual, legal and equitable subordination rights, whether arising
under general principles of equitable subordination, section 510(c) of the
Bankruptcy Code or otherwise, that a Holder of a Claim or Interest may have
against other Claim Holders with respect to any distribution made pursuant to
the Plan.
10.05 Effectuating Documents; Further Transactions; Timing. The
Debtors are authorized to execute, deliver, file or record such contracts,
instruments, releases and other
19
agreements or documents and to take such actions as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of the
Plan. All transactions that are required to occur on the Effective Date under
the terms of the Plan shall be deemed to have occurred simultaneously. The Old
Note Trustee shall deliver in recordable form all documents or instruments
reasonably requested by the Debtors to cancel of record all mortgages, liens,
security interests and encumbrances on any Collateral for the Old Notes.
10.06 Ratification of Actions Taken. Entry of the Confirmation Order
shall ratify all transactions effected by the Debtors from and including the
Filing of the Case through the Confirmation Date. After entry of the
Confirmation Order, all Creditors and Interest Holders shall be enjoined and
restrained from commencing or continuing any action or proceeding arising out of
or related to the consummation of the transactions contemplated by the Plan.
10.07 Modification of the Plan. The Proponents reserve the right, in
accordance with the Bankruptcy Code, to amend or modify the Plan and related
documents in any manner prior to the entry of the Confirmation Order. After
entry of the Confirmation Order, the Proponents may, upon order of the
Bankruptcy Court, amend or modify the Plan and related documents in accordance
with, and to the extent permitted by, Section 1127 of the Bankruptcy Code, and
remedy any defect or omission, or reconcile any inconsistency in the Plan in
such manner as may be necessary to carry out the purpose and intent of the Plan.
Every amendment or modification of the Plan shall supersede and render null and
void all prior versions of the Plan.
ARTICLE 11
MANAGEMENT AFTER CONFIRMATION
11.01 Board of Directors. The Boards of Directors of the Debtors
shall continue in place after the Effective Date until the first meeting of
Holders of New Common Stock. The first meeting of Holders of New Common Stock
shall occur as soon as reasonably practicable after a total of not less than 2
million shares of New Common Stock has been issued in accordance with Section
8.02 of this Plan, provided that at least one Creditor entitled to receive New
Common Stock under the Plan has been qualified by the Casino Commission to
receive distribution of the New Common Stock or the necessity for such
qualification has been waived. At the first meeting, Holders of New Common Stock
shall be entitled to elect the Board of Directors of Reorganized Holdings. The
Board of Directors of Holdings shall appoint the Boards of Directors of GBHC and
Funding.
11.02 Officers. The principal executive officers of the Debtors
shall continue in office after the Effective Date, until changed by the Boards
of Directors of the Debtors, subject to the Bankruptcy Court's Order of March
31, 1998, providing for severance payments to certain officers.
20
11.03 No Corporate Action Required. As of the Effective Date, the
issuance of New Notes and New Common Stock, the adoption, execution, delivery
and implementation of all contracts, leases, documents, instruments, and other
agreements related to or contemplated by the Plan, and the other matters
provided for, under or in furtherance of the Plan involving action to be taken
by or required of the Debtors shall be deemed to have occurred and be effective
as provided herein, and shall be authorized and approved in all respects without
further order of the Bankruptcy Court or any requirement of further action by
stockholders or directors of the Debtors. All documents or instruments which
must be executed and delivered by the Debtors under this Plan shall be deemed
appropriately executed if signed by either of the President, Chief Executive
Officer, Executive Vice President or any Vice President, of the Debtors.
11.04 Powers and Duties of the Debtors. From and after the
Confirmation Date, the Debtors shall have the powers and exercise the duties, as
set forth in section 1123(b)(3) of the Bankruptcy Code, to retain, enforce,
settle and prosecute all Causes of Action.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.01 Exemption from Transfer Taxes. Pursuant to section 1146(c) of
the Bankruptcy Code, the issuance, transfer or exchange of securities or other
property under the Plan; the creation, transfer, filing or recording of any
mortgage, deed of trust, financing statement or other security interest; or the
making, delivery, filing or recording of any deed or other instrument of
transfer under, in furtherance of or in connection with the Plan, shall not be
subject to any stamp tax, real estate tax, conveyance, filing or transfer fees,
mortgage, recording or other similar tax or other government assessment. All
recording officers and other entities whose duties include recordation of
documents lodged for recording shall record, file and accept such documents
delivered under the Plan without the imposition of any charge, fee, governmental
assessment or tax.
12.02 Exculpation. Neither the Debtors nor the Committee, nor any of
their officers, directors, members, employees, advisors, consultants, attorneys,
affiliates, or agents shall have or incur any liability to any Holder of a Claim
or Interest for any act or omission in connection with, or arising out of, the
Case, the proposed confirmation or consummation of the Plan or the
administration of the Case or Plan or the property to be distributed under the
Plan, except for willful misconduct or gross negligence, and in all respects
shall be entitled to rely upon the advice of counsel with respect to their
duties and responsibilities under the Plan.
12.03 Permanent Injunction. Except as otherwise set forth in the
Plan, on and after the Effective Date all persons and entities that have held,
hold or may hold (a) any Claim against or Interest in the Debtors shall be
permanently enjoined from and against (i) commencing or continuing in any manner
any suit, action or other proceeding of any kind against the Debtors
21
or the Estates with respect to any such Claim or Interest (ii) the enforcement,
attachment, collection or recovery by any manner or means of any judgment,
award, decree or order against the Debtors or the Estate, (iii) creating,
perfecting or enforcing any lien or encumbrance of any kind against the Debtors
or the Estate or against any of their properties or interests in property with
respect to such Claim or Interest and (iv) asserting any right of setoff,
subrogation or recoupment of any kind against any obligation due from the
Debtors or against any property or interest in property of the Debtors with
respect to any such Claim or Interest and (b) any Claim, right, action, cause of
action against or Interest in the Debtors or the Estates shall be permanently
enjoined from and against commencing or continuing any suit, action or
proceeding against, asserting or attempting to recover any Claim against or
Interest in, or otherwise affecting the Debtors or the Estate with respect to
any matter that is the subject of the Plan.
12.04 Revocation or Withdrawal of the Plan. The Proponents reserve
the right to revoke or withdraw the Plan at any time prior to the Effective
Date. If the Proponents revoke or withdraw the Plan, then the Plan shall be
deemed null and void.
12.05 Binding Effect. The Plan shall be binding upon, and shall
inure to the benefit of, the Debtors, the Holders of all Claims and Interests
and their respective successors and assigns. Confirmation of the Plan binds each
of the Holders of Claims and Interests to the terms and conditions of the Plan,
whether or not such Creditor or Interest Holder has accepted the Plan.
12.06 Construction. The rules of construction set forth in section
102 of the Bankruptcy Code shall apply to construction of the Plan.
12.07 Time. In computing any period of time prescribed or allowed by
the Plan, unless otherwise set forth herein, the provisions of Bankruptcy Rule
9006 shall apply.
12.08 Headings. The headings used in the Plan are inserted for
convenience only and neither constitute a portion of the Plan nor are intended
in any manner to affect any interpretation of the provisions of the Plan.
12.09 Governing Law. Except to the extent that the Bankruptcy Code
or other federal law is applicable, the rights, duties and obligations of any
Entity arising under the Plan shall be governed by, and construed and enforced
in accordance with, the internal laws of the State of New Jersey, without regard
to New Jersey choice of law provisions.
12.10 Existence of Committee. The Committee shall continue in
existence until the Effective Date, upon which the Committee shall disband.
12.11 Benefit Programs. As of the Confirmation Date, all programs or
plans maintained by the Debtors for the benefit of present or former employees
and dated on or before
22
the Petition Date which have not been previously terminated shall be continued
in force and effect and assumed by the Reorganized Debtors. Any Entity with a
Claim arising from such termination shall be treated as a Holder of a General
Unsecured Claim.
12.12 Retiree Benefits. Except as otherwise provided in the Plan,
any obligations of the Debtors to any Entity for the purpose of providing or
reimbursing payments for retired employees and their spouses and dependents for
medical, surgical, or hospital care benefits, or benefits in the event of
sickness, accident, disability, or death under any plan, fund or program
(through the purchase of insurance or otherwise) maintained or established in
whole or in part by the Debtors prior to the Petition Date, if any, shall be
continued by the Reorganized Debtors.
12.13 Payment of Statutory Fees. No later than the Effective Date,
the Debtors shall have paid all fees due to the United States Trustee through
the Effective Date. Such fees which accrue after the Effective Date and until
the Cases are closed shall be payable by the Reorganized Debtors.
12.14 Cramdown. At the Confirmation Hearing, the Proponents will
seek Confirmation of this Plan notwithstanding the rejection of the Plan by any
impaired Class of Creditors or Interest Holders.
12.15 Execution of Plan Documents. Upon application by the Debtors
or Committee, the Court may issue an order directing any necessary party to
execute, deliver, or to join in the execution or delivery of an instrument or
document, and to perform any act necessary for the consummation of this Plan.
12.16 Post Confirmation Fees and Expenses. The Debtors shall be
authorized to pay the fees and expenses of any professional retained by the
Debtors accruing after the Confirmation Date in accordance with the terms of
engagement of such professional, and without the need for a hearing or
Bankruptcy Court order.
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12.17 Closing of Case. Unless otherwise ordered by the Bankruptcy
Court, the Case shall be deemed closed six months after the Effective Date.
Closing of the Case shall not affect the pendency of any adversary proceeding or
contested matter filed before the Case is closed. Closing of the Case shall
terminate the Debtors' obligation to pay fees to the United States Trustee.
GB HOLDINGS, INC.
By:___________________________________
Name:
Title:
GB PROPERTY FUNDING CORP.
By:___________________________________
Name:
Title:
GREATE BAY HOTEL AND CASINO, INC.
By:___________________________________
Name:
Title:
Dated: October __, 1999
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